Harold Koh and the Battle of the Dueling Petitions

Last month NYU students and others sent a petition to the Dean of Law and the President of NYU calling Harold Koh’s “presence at NYU Law and, in particular, as a professor of International Human Rights Law, … unacceptable,” because of his public defense of targeted killings carried out by drones, and his role in justifying the killing of Anwar al-Aulaqi. Now, Harold’s close former colleagues at the State Department, Sarah Cleveland and Mike Posner, have circulated a counter petition which strongly defends Harold’s record both historically and while at State, and concluding that it is “patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service.”

What are we to make of these dueling petitions? From afar, one might assume that it is much ado about nothing, and that the huge fuss that has been created is just another manifestation of Sayre’s law according to which politics in the academy is so bitter precisely because so little is at stake. But that is clearly not how either side in the debate sees things. The students imply that Harold behaved unethically by “crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations,” and that this should have the consequence of disqualifying him from teaching human rights law, at least at NYU. His former State Department colleagues, on the other hand, presumably see this as casting a slur on his reputation which, if allowed to stand, might do significant damage to his professional standing. In order to mobilize support from within the profession a very wide net has been cast and academics and practitioners from across the country and beyond, as well as students, have been called to Harold’s defense.

Sadly, the debate has largely neglected the most important issues raised by an act of legitimate political protest and has focused instead almost entirely on the reputational issue. And most of the commentary on that score has been generic and not directed at the specific allegations made. Thus the counter petition, rather than examining the specifics of the criticism, praises Harold’s past human rights leadership, notes his “unquestionable personal commitment,” and emphasizes that he “was a leading advocate” for human rights “within the Obama Administration, including on the drones issue.” On that basis, the petition concludes that “it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service….”

With the exception of Ryan Goodman’s post on Just Security, Harold’s actions have been defended not on the basis of a careful examination of the actions impugned by his student critics, leading to a measured and evidence-based refutation of their claims, but on the basis of generic assertions. The effect has been made even worse by the David and Goliath nature of the battle, as a host of the biggest names in the field have been persuaded to assert, without giving any particular reasons, that the student petition “is deeply misguided.” With so many friends and well-wishers doing the job for him, it is understandable that Harold’s only public comment has been that all that needs to be said has already been said.

I find all of this disappointing and frustrating. There is a serious public debate that needs to be had and it is being buried in an avalanche of expressions of outrage and irrelevant assertions of Harold’s good faith. From Kevin Heller on Opinio Juris (the petition is “appalling” and Harold is “brilliant, compassionate, kind, and profoundly ethical”) to John Yoo on Ricochet (the protests are “silly” and the students could learn much from Harold), Harold’s defenders on the blogosphere have mostly also been averse to engaging seriously with the students’ actual critiques.

Before getting specific, I need to declare an interest of sorts. The student petition cites both a report on targeted killings that I presented to the UN Human Rights Council in 2010 and an academic article that I later wrote on the subject. But I was not consulted in advance by the student authors nor have I been involved with their endeavors since the petition was published.

Let me first deal with the question of Harold’s track record. He has clearly been an active and very effective defender of human rights over some three decades. For my own part, I don’t for a moment consider that his actions as the State Department’s Legal Adviser were such as to disqualify him from teaching at NYU. In principle, I think that it is entirely possible that a government official could take positions that are so unconscionable and indefensible that it would preclude a teaching appointment at a university with a self-proclaimed commitment to the public interest, but clearly none of Harold’s work comes close to crossing that line. For that reason, I fully supported the proposal to appoint him to NYU and I stand by that judgment call. I would thus disagree with the proposition in the student petition that he should not have been appointed. I think that our students can benefit from engagement with him in classes, and I would like to think that the process might go both ways.

But just as I would defend Harold’s right to free speech I would also defend the rights of the students to question his record and to challenge NYU’s decision. I believe that this goes to the heart of free expression and to the importance of encouraging discussions of controversial issues within a university setting. Open discussion of the merits of the issues raised is more consistent with this approach than a chorus of defensive reactions by colleagues of the person whose policy choices are being challenged. The student petition is not, in my view, an ad hominem attack on Harold, even though the students call into question his professional judgment and the legality of the positions he supported.

I now turn to the two substantive issues raised by the students’ petition that have, to my regret, been buried underneath most of the responses to date.

The first of those concerns the role and responsibility of scholars in government. This is central to the situation in which Harold found himself, but it has got all too little attention in this particular debate. The revolving door between the legal academy and government is a prominent and very distinctive feature of the U.S. system, which makes this an especially important issue, and arguably even more so when the scholar’s field of expertise is human rights and civil liberties. Yet many responses to the students’ concerns have adopted a glib “realist” position (you do the best you can in government and put up with the rest) rather than grappling with the deeper issues raised by the participation of human rights lawyers and scholars in government.

The scholarly literature, for what it’s worth, contains many caveats or warnings for those contemplating making the jump. Martti Koskenniemi makes his trademark move in characterizing the governmental adviser’s position as one that “oscillates between commitment and cynicism.” Of more direct relevance to the present situation, a distinguished international group of scholars warns that:

When a scholar joins the government, it is more likely that his scholarship will be adapted to the political agenda of the administration, rather than the other way around. Given the structure of incentives that a high-ranking government official faces in a modern democracy, his scholarship will be most likely put at the service government’s political goals, and it will become, for that reason, corrupted. Legal academia (international and otherwise) rewards people who alternate between government and teaching. Such practice may be salutary for a number of reasons, but concern for the disinterested search for the truth is certainly not one of them.

I should add that as an academic who has also held various UN positions, I believe that it is not unreasonable to raise some of the same concerns about those of us who seek to write and teach in a spirit of scholarly independence but are too often under pressure to tailor our arguments to the prevailing political winds if we hope to gain any traction. In both cases, the option of resignation is an important safety valve, but again we would all benefit from more considered analyses of when this “exit” option is appropriate or even necessary and when it might amount to a cop-out. There would seem to be a good case to be made that those whose careers have been built on defending the central importance of taking principled decisions should be more open to the exit than the voice option when the choices involve problematic compromises.

The second substantive issue concerns the legality of the way in which the U.S. Government developed its targeted killing programs, and the role of individual officials therein. It must be said that reasonable people differ on the issue of justifications for targeted killings, and both Harold’s supporters and his critics should acknowledge that fact. But I would be less than honest if I were not to say that I have some misgivings about the role that Harold played publicly in the drones debate, as opposed to the role he played in confidential inter-departmental negotiations. According to most reports, Harold took a principled and appropriately engaged role in the latter context. Based on what is publicly known, there is little doubt that the administration’s policy would have been even more problematic had it not been for Harold’s advocacy.

But a government lawyer plays a different role in the public forum than he or she does in the privacy of internal negotiations. Harold chose to take a leading role in the public debate on the highly contested issues of the legality of drone strikes. In his insider account, Klaidman, who clearly had access to Harold’s version of events, observes that:

Koh began lobbying Secretary Clinton and the White House to let him make a speech in defense of targeted killing. …[T]he White House saw an upside in making him the unlikely public face of the CIA’s drone program. … The military and the CIA, too, loved the idea. They called the State Department lawyer ‘Killer Koh’ behind his back. Some of the operators even talked about printing up T-shirts that said: ‘Drones: If they’re good enough for Harold Koh, they’re good enough for me.’”

As a result of this strategy, Harold took a public position which asserted the unqualified legality of what the US was doing. His defense of the policy, in the context of the widely-publicized lecture he gave at the American Society of International Law conference in 2010, in which he dismissed the various allegations that had been made against the policy, left little room for doubt as to where he personally stood on the issue. In my view the assurances that he provided on that occasion raise significant issues in terms of the shortcomings that were widely suspected at the time and that were confirmed by much of what subsequently became known publicly about US policy and practice.

It was encouraging that once he was out of office Harold began to distance himself from various aspects of the targeted killings program and even of the overall war on terror. But these efforts also served to reinforce the earlier questions that had been raised in relation to the legality of the policy and the role that he played in selling it to the media, to the college of international lawyers, and to the public at large.

In introducing a volume of essays on the role played by successive State Department Legal Advisers, Harold characterized the role as being “America’s conscience on international law” and one that demonstrated the critical importance of speaking “law to power.” This is, of course, a variation on the theme of speaking “truth to power” that originated with the Quakers and has since been taken up by many in the human rights community. While I have no doubt that Harold stood up for human rights in ways that others in the Obama administration did not, only much more detailed insights into the historical record will enable us to determine (i) whether he did all that he could have done and (ii) whether the gap between his aspirations and the outcome might have warranted his resignation rather than his unqualified public embrace of the policy that resulted from the internal negotiations with forces much more hostile to giving human rights their due than he was.

In short, the students’ petition raises important issues, even if their rhetorical style is somewhat tendentious. While I definitely disagree with their objection to Harold teaching human rights at NYU, it is equally clear that a chorus of praise of his past record on issues other than targeted killings is not the best way to respond to the specific criticisms raised by the students. When students seek to speak “truth to power” the appropriate response is not to mobilize the friends and colleagues of the powerful to drown out their voices. It is to engage on the merits of the “truths” they claim to put forward.

 

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About the Author(s)

Philip Alston

John Norton Pomeroy Professor of Law at New York University Law School, UN Special Rapporteur on extreme poverty and human rights, Former UN Special Rapporteur on extrajudicial executions (2004-10) Follow him on Twitter (@Alston_UNSR).