Harold Koh’s Testimony on Gonzales Nomination

Harold Koh’s Testimony on Gonzales Nomination

The testimony of Harold Koh, the Dean of Yale Law School and former Assistant Secretary of State for Democracy, Human Rights, and Labor, before the Senate Judiciary Committee on the nomination of Alberto Gonzales has been made available here.

The Gonzales nomination and the related issues of the “Torture Memoranda” have been discussed at length in many public fora. I point out Koh’s testimony, though, as I find it both persuasive on the specific issues of the “Torture Memos” and also relevant to a broader discussion of the relation of international law to foreign policy. Koh discussed three issues: (a) the illegality of torture and cruel, inhuman, and degrading treatment, (b) the scope of the President’s powers to authorize torture and cruel treatment by U.S. officials, and (c) the applicability of the Geneva Conventions on the Laws of War to alleged combatants in U.S. custody. He concluded that the memos attempted to marginalize accepted interpretations of, and the policy behind, the Torture Convention, that they overstated the effects of the President’s powers as Commander-in-Chief, and that they set a dangerous precedent concerning the U.S. interpretation of the Geneva Conventions–one that could put U.S. soldiers at risk.

Beyond the specific issue of the Gonzales nomination, Koh’s testimony does an good job setting out a view of how ignoring the interaction of domestic laws with treaties and international norms is not only legally questionable, but stategically and politically unsound:

Taken together, Mr. Gonzales’ legal positions have sent a confusing message to the world about our Nation’s commitment to human rights and the rule of law. They have fostered a sense that we apply double standards and tolerate a gap between our rhetoric and our practice. Obviously, our country has faced a dangerous threat since September 11, and we expect our leading officials to respond. But we should not discount the enormous costs to our reputation as a leader on human rights and the rule of law from the perception that we have waged a war on terror by skirting the Torture Convention, upsetting constitutional checks and balances, opening loopholes in the Geneva Conventions, and creating extra-legal persons and extra-legal zones.

While disregarding international obligations and norms can give you wider freedom of movement in the short run, the domestic and international backlash can narrow your options in the medium or long term. As Condoleezza Rice and the rest of the second term foreign policy team start their new jobs, I hope they remember Harold Koh’s wise counsel from the Gonzales hearings.

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Professor Borgen, despite your high praise of Professor Koh, his ivory tower was shown to be just that when confronted with the ticking time bomb problem. Unlike you I found his high moralizing disconnected from reality and the real potential for disaster. (As are the latest rantings by Kenneth Roth at Human Rights Watch). As a NYC resident I do fear seeing a brighter-than-the-sun flash for a split second before everyone I know and love in NYC are killed by a rouge terrorist nuclear bomb set off in Manhattan. All the hand-wringing and potificating by Koh et al. will then do nothing to console those remaining.


The question is a red-herring. Whatever one might choose, whatever might happen to one’s soul or whatever you might do afterwards, the key is that torture does not work.

Torture, even under the ticking bomb scenario, is not viewed as productive by experts (I mean those who have been involved for years in interrogations of terrorist and criminal suspects).

Nor is fear is a sound basis for making decisions.

See Mark Bowden, The Dark Art of Interrogation, http://www.theatlantic.com/doc/200310/bowden.