05 Feb Harold Koh for State Department Legal Adviser?
Well, the rumors have now officially made it to the blogosphere. Yale Law School Dean Harold Koh is (at the very least) on someone’s short list to take over from John Bellinger as the next Legal Adviser at the Department of State. See it here in TNR, which got it from no less a source than the Yale Daily News. Dean Koh would make an exciting choice for a host of reasons, not the least of which is his celebrated defense of international law as “our law” in law review article upon article, and his more general (also celebrated) support for the international law of human rights. His views on torture and related issues are entirely in line with those of recent appointees to the Justice Department Office of Legal Counsel. See, for example, his 2006 article “Can the President Be Torturer-in-Chief?” in the symposium issue of the Indiana Law Journal (a conference hosted by new OLC head Dawn Johnsen). Hint: The answer is no. Also worth a read is his congressional testimony last fall about what the incoming administration should do about restoring the rule of law to U.S. counterterrorism operations. Much more to say on Koh’s voluminous scholarship and stellar career, but for now, I’ll leave it at — talk about change….
Koh might be something there, but I question whether he will be hard enough to encourage prosecutions on torture.
Best,
Ben
Response…I hope that the comment “Talk about change” was not meant to imply that either Will Taft or John Bellinger used the Office of the Legal Adviser to justify torture on the part of the United States. If that implication were meant, it would be wrong. Harold Koh might bring a new direction to the Office in some areas, but not necessarily in its formulation of the international law obligations of the United States with regard to nonstate actors engaged in armed attacks. There is some space, I believe, between the Office of the Legal Adviser and the Office of Legal Counsel.
Paul –
We can debate whether Bellinger or Taft forceful stood up for US treaty obligations not to torture. But the more important point is that, especially during the first Bush Administration, L was simply taken out of the loop. The Yoo memo saying that the Geneva Conventions did not apply to the conflict in Afghanistan because Afghanistan was a failed state (!) was sent to Taft only a day or so before it went to Gonzales. Taft told Yoo his arguments were nonsense but no one listened to him. It’s inconceivable that Harold Koh would be marginalized in that way. In part that’s because, I think, the WH takes international law more seriously. But it’s also because you don’t appoint someone of Harold’s stature and not take his views seriously.
Thanks for the comment, Paul. I should clarify, my “talk about change” tag was meant to be far more general in nature. I think one would be hard pressed to see the Bush Administration writ large as a champion of international human rights law. In many ways and throughout his career, Koh has been a champion.
With regard to Paul Stephan’s comment on Will Taft, see Taft’s speech, published at 31 Yale Journal of International Law 503 (2006) at pages 507, 509 and 510. “. . . when at least some new methods of interrogation being used were ultimately made known, together with the memorandum from the Department of Justice construing – or should I say misconstruing? – the Convention Against Torture and the statutes implementing it not to prohibit those methods . . .” p. 507. “It was the lawyers from the Department of Justice who pressed for a determination that the Conventions and other standards of international law and practice did not govern the conflict. Bearing an abstract hostility to international law, developed in the sheltered environment of academic journals, and equally unfamiliar or unconcerned with our broader policy interests in promoting respect for the rule of law among states as well as within them, these lawyer s proposed to create a regime in which detainees wee deprived of all legal rights and the conditions of their treatment were a matter of unreviewable executive discretion. Why lawyers, of all people, should want to establish the point that such a lawless regime could legally exist,… Read more »
I want to second the comment on Taft. He was doing the best he can while being kept out of the loop. As we know, Bellinger was in the White House on the National Security Staff (still waiting to see what he did to fight the torture) before going to the Legal Adviser office and he worked hard as Legal Adviser to get modifications to the Geneva Conventions to enshrine some of the OLC views in the international instruments and make pitches to the international community that we were not so against international law.
Best,
Ben
Dean Koh’s appointment to L would signal a commitment to the view that human rights and national security are not mutually exclusive. They do not require trade-offs. As Dean Koh has noted, “. . . our commitment to human rights and the rule of law defines who we are, as a nation and a people. If this country no longer stands for these principles, we really don’t know who we are anymore.” In particular, the Administration would likely receive counsel to avoid creating a “national security court” or a “preventive detention scheme” each of which trades someone’s liberty of some for a short-sighted notion of security.