National Security Law

Harold Koh Discussion with John Bellinger at ASIL Event

Julian mentioned, in his first post on Sarah Cleveland's UVA talk below, that Harold Koh, legal adviser to State, held an informal public discussion with his predecessor from the Bush administration, John Bellinger.  This was an ASIL event, held at John's law firm, Arnold & Porter, and moderated by my old friend and ASIL's Treasurer, Nancy Perkins, also of Arnold & Porter.  CSPAN covered it, and the video is now available:  The Obama Administration and International Law, February 17, 2010.  (If I can find a youtube version from ASIL, I'll see if I can embed it.) I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It's a good thing for an administration's senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments - and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance here at OJ that was very well received.  Harold Koh has also been doing some out of the box engagements, and this kind of unscripted, informal discussion is an outstanding example of that. (One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully - but less informatively - phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.) The conversation ranged across a wide variety of issues, including something that Julian flagged below with respect to Sarah Cleveland's UVA speech - the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (90!) than at any point in American history.  On the broad question of whether the Obama administration's international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren't, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn't very easy.