By Alan Gilbert
Nonwhite students at NYU Law School, led by Amanda Bass and Aman Deep, protested the hiring of Harold Koh, a famous human rights lawyer who worked for the Obama administration, to teach human rights. Their petition below, signed by some 40 NYU law students (350 total signers), a high number given intimidation, makes a straightforward, technical case that the use of drones which randomly murder civilians (mostly in countries the US has not declared war against) is a crime.
In addition, Koh contradicted his scholarship at Yale on the War Powers Act to try to affirm Obama’s unilateral bombing of Libya (decent in so far as it prevented massacre at Ben Ghazi, terrible in the collapse it has led to).
Torture is a recognized war crime internationally. Further, the US government fought for all the Conventions under which the Bush officials – Colin Powell probably excepted – need to be put on trial. By the Supremacy Clause, Article 6 section 2 of the Constitution and by the anti-torture law signed by President Reagan, it is American law as well. See here.
Killing “suspects” and civilians by drone is not so recognized, at this point, except, it should be underlined since the point is so often avoided during pseudo-legal discussions, as the crime of murder during the commission of aggression.
The trope of administration-insider/security Democrats that drones kill fewer people than invasion (more accurately, unprovoked aggression as in Iraq), misses the point. For the terror imposed on civilians and the wanton civilian casualties make ordinary people rightly hate, fear and mock the United States government around the world.
Further, seeking to be the face of the drone policy within the administration, Koh chose to defend drone murder, directed from video screens far away, as entirely legal and morally justified. The Obama administration, along with the CIA, was glad to elevate him to this position. But then,Koh made himself plainly responsible, as a public agent or actor for the administration, for drone strikes. This is not a matter of freedom of speech as the Law Professors petition below (and the war criminal John Yoo) suggest. It is Koh’s providing specious or pseudo-legal cover for government acts of murder which the students rightly object to.
Even Phillip Alston, the international lawyer whose report is cited in the student petition and who himself is, with misgivings, prepared mostly to support Koh, underlines the problem on Just Security blog here:
“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.’”
That the CIA and military labelled him Killer Koh is, sadly, apt. And the T-shirts: “if they’re good enough for Harold Koh…”
The students name Koh’s specific role as a famous human rights lawyer in providing cover for targeting Anwar Al-Awlaki, an American citizen, though they do not include Abdulrahman, Al-Awlaki’s 16 year old son, who was killed by targeted American drone while looking for his father…:
“Mr. Koh’s ‘stamp of approval’ for Mr. al-Aulaqi’s killing was particularly useful to the Obama Administration, Mr. Scahill reports, because his prior reputation as ‘a liberal, pro-human rights, pro-civil liberties lawyer’ was ‘a strong preemptive strike against the critics.' In essence, Mr. Koh leveraged his human rights record to strengthen his otherwise specious arguments that the U.S. government was not violating either the human or constitutional rights of one of its own citizens. We find Mr. Koh’s conduct in this regard to be unethical and highly unprincipled.”
Now Koh has received a defense – last letter below – from some 215 professors of human rights law, among others, around the country. A separate one from Professor Ryan Goodman at NYU details more completely Koh’s record in “civilizing” the use of drones.
Unfortunately, this may be as empty a reply – depending for credence solely on the bubble of the signers’ prestige – as any lawyer has ever written. The law students reject Koh’s acts – why the CIA and military hail/mock him as “Killer Koh” – despite his longstanding contributions to human rights law which the students might, indeed, have recognized at greater length.
In contrast, the Law Professors, huffily, insist on the latter and ignore Koh’s deeds/crimes.
In the face of evidence cited by the students, they assert (counting or precision is also not a strong point):
“Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.”
A striking article from the Economist, a smart British conservative journal often worth reading on issues outside Britain, makes the straightforward point that “government service” by human rights lawyers like Koh often furthers criminality. This is especially true in the biggest empire in the world (as part of what I call a war complex, that is, a military-industrial-congressional-intelligence-media-think tank-academic, etc. complex), the US military has divided the world into 6 regions with some 1180 military bases abroad. This global domination is largely kept secret by commercial media and “bipartisan” Congressional agreement from the American people….
In addition, Koh’s biggest defender turns out to be the war criminal John Yoo. Yoo and, less, Koh are praised also by the head of the Lawfare blog, Benjamin Wittes (a journalist turned pseudo- or “official” realist-drone-torture addict).
Lawfare – the name signifies a proud and self-conscious perversion of the rule of law – was founded by Jack Goldsmith who, as Head of the Office of Legal Council under Bush, courageously withdrew Yoo’s rationalization of torture – still kept secret… – at the cost of giving up his job.
But Goldsmith also sanctified extraordinary renditions of captive prisoners to torturers, for instance, Maher Arar, the innocent Syrian-Canadian engineer who stopped briefly at LaGuardia, was detained and shipped to Syria to be tortured in a coffin-size cell for a year.
The name “Lawfare” reflects Goldsmith’s own personal need to twist the law to legitimize criminal government purposes.
Papering over torture and murder as “realism” and “speech” because a “Berkeley lawyer” like John Yoo sanctifies it does nothing for the reputation of the US government or the loathing aroused by the now Obama-protected torturers like my student Condi Rice – see here – and Jose Rodriguez along with the entire foreign policy apparatus of the Bush administration aside from (on this issue) Colin Powell.
Further, against Obama’s obligations under the Convention against Torture, he has refused to create independent hearings for any of the torturers. This wretched avoidance of legal proceedings – he who prosecutes honorable whisteblowers more than any previous President… – makes Obama technically an accomplice in torture.
Let us try some analogies, for instance Nazi death camps. They were supported at the time and never apologized for by possibly the the greatest European philosopher of the 20th century – Martin Heidegger – from whom, undoubtedly, anyone interested in philosophy (ancient or 20th century) could benefit from a class. But those facts reveal only that Heidegger was also an odious, criminal sociopath as has now become widely evident even to his (sometimes former) apologists.
Now suppose a Nazi “Harold Koh” had devoted himself to improving the camps, making them more humane, for example, working slave laborers to death in 5 months instead of 3, reducing the overall rate of killing, offing some people with barbiturates rather than in gas chambers, and so forth. Would these lawyers praise the “government service” of such a “Koh”?
Yet, that “Koh” would still clearly be a war criminal.
Or take the American torturers Mitchell and Jesson, two psychologists who had designed the SERE program modeled on Chinese torture for American soldiers if they were captured and laid out the plans for the CIA (replacing the FBI whose agent Ali Soufan aptly protested against the uselessness and depravity of torture. They had never done an interrogation or elicited evidence from a prisoner. They created some walls that gave way when prisoners were slammed against them (“walling”)…
They were long protected by the leadership of the American Psychological Association in consultation with the CIA and against the insistence of the American Psychiatric Association and the American Medical Association that no health professional may participate in torture without herself becoming a criminal…
But was not this responsibility for pretending to “not so severe” torture – one that leaves few body marks – nonetheless consistent with waterboarding Khalid Shaikh Mohammed 180 times in a month and the over 100 homicides of prisoners in American custody according to Pentagon statistics by the torturers?
Did Mitchell and Jesson’s “human rights approach” justify the nonlegal Bush administration/New York Times‘ euphemism: “very harsh interrogations”?
Is their “government service,” as the Law Professors, analogous in this case to the American Psychological Association before the revolt of its members, indiscriminately call it, admirable?
The Economist below rightly insists:
“Mr Koh could well have been the “strongest and most effective advocate” for “human rights principles relating to the use of drones” andnevertheless also have been a key legal architect of a programme that has done“structural damage to the cornerstones of international security and set precedents that undermine the protection of life across the globe in the longer term,” as a UN report put it. As the NYU students pointed out in a follow-up letter:
It has not escaped our attention that Mr. Koh is regarded as one of the most respected and powerful international lawyers of our time. This does not deter us from our commitment to holding accountable members of our community who, like Mr. Koh, seem to have traded fealty to international law for a “ringside seat” at the table, at the cost of thousands of lives.”
The Professors’ brief statement (last below) insists without qualification: “The world needs more human rights professionals who are willing to commit themselves to government service on behalf of their nation.”
“Government service” in the American Empire can lead a “human rights professional,” as under Bush-Cheney, to commit great crimes. That is, sadly, also true under Barack Obama who, by letting torturer/murderers skate, has consolidated a bipartisan regime of torture even if water boarding is – temporarily – probably gone.
There is no service to humanity or decent government in figleafing murder by drone – exactly what “killer Koh” in the CIA’s/military’s derisory terminology did.
There is no service to humanity in figleafing now for torture – against Koh’s own words previously – as “free speech” or “government service” as the law professors’ petition and more precisely, John Yoo below do.
In addition, Obama has made it easy for the Republican thugs, keen to torture (I except John McCain and Rand Paul here, though both wobble) to restore it, and even Hillary might walk a thin line.
At best, the 215 human rights lawyers whiff. They fail to provide a single principled argument on behalf of Koh’s crimes because none exist. Instead, in a seemingly lawyerly move except that it draws so much attention and controversy to the apt petition by 40 NYU law students, they are silent about the crimes…
Attempted suppression by ignoring the petition might be superior to attempted suppression by clamorous foolishness.
The lawyer’s petition offers the following piety: “While we strongly support the free exchange of ideas that is fundamental to civil society in general, and the academy in particular,…”
Yet in their zeal to defend Koh, their “field” and perhaps some unease/guilt about “government service,” these lawyers also ignore that the students have been threatened. For instance, one lost an internship at Human Rights First because of signing the petition against Koh’s appointment.
These famous professors thus combine sanctimony, weakness at argument (if their argument were any good, they could not be so easily taken out by a column in the Economist…) and miserable bullying.
Goodman at NYU sent around a long defense of Koh’s record to every student who signed the petition, urging each personally to withdraw her signature (imagine the vicious recommendation letters such a Professor might write about the students, perhaps like those of Martin Heidegger to other universities and the Gestapo on the untrustworthiness of students who had been to America and of course, Jews….).
Several of his students hastily withdrew their names, though perhaps not what they thought…
Wittes also points out that Koh attacked Bush criminals – Wittes asserts that they were “just doing their job” – with the same style as these law students go after him. If so, Koh did the right thing and provided a paradigm for assessing his own actions/crimes.
Wittes waves airily at this – it is all just nonsense for “us” “serious national security” (one might use more accurate names: torturer, extraordinary rendition, drone-murderer, creating insecurity for ordinary Americans) types.
But immunity for Koh means also immunity for all the other war criminals. The Obama administration, with the blessing of human rights expert Koh, mandates no independent hearings about the war crimes of the Bush administration. This protects Goldsmith at Lawfare and a wide range of others like Koh’s defender John Yoo.
Covering for torturers (as well as drones) – for war crimes as “speech” and “government service” – is also what the 215 human rights law professors sign onto with their statement.
But there are still courts of law internationally and here. If there are ever legal proceedings – if any of the principals, now including Harold Koh, go abroad…, the case against Yoo, Koh and the others is clear from the public record alone.
The US government hung the Tokyo war criminals for less, i.e. “command responsibility” for crimes committed by subordinates rather than direct ordering of/legally apologizing for them.
I prefer Tutu and Truth and Reconciliation – see Desmond Tutu, No Future without Forgiveness – but there has to be some truth and an end to criminal policies. So far, the policies continue (or are easy to renew, there being no consequence for torture) and this crowd just doubles down.
Andrew Sullivan, the first advocate of Obama in the Atlantic in mainstream American politics and a leading conservative who rightly despises torture (what makes him a conservative, not an authoritarian), was horrified that Obama’s longterm approach was, in violation of the law, to immunize the torturers (he was less critical of drones, reflecting a lack of clear thinking about frequent murder of civilians abroad).
This is the worst aspect of the Obama administration (though the turn towards working with Iran is heartening and something genuinely different from the last administration). And once again, the Law Professors’s statement about the drone killings as “speech” and “government service” has added to this immunization.
In the New York Times article four years ago on the Tuesday afternoon meetings to choose targets at the White House, the infamous John Brennan is described as saying that any male in the presence of a suspected terrorist, i.e. his 5 year old son bringing him or her a glass of water, is to be counted as a terrorist. See here.
Being close to power just carried away Mr. Koh. He says of Brennan, the then NSA advisor to Obama about drones and former torturer for Bush in Iraq, that he is “priestly” and that Koh trusts him to be the last man in the room…
“Harold H. Koh, for instance, as dean of Yale Law School was a leading liberal critic of the Bush administration’s counterterrorism policies. But since becoming the State Department’s top lawyer, Mr. Koh said, he has found in Mr. Brennan a principled ally.
‘If John Brennan is the last guy in the room with the president, I’m comfortable, because Brennan is a person of genuine moral rectitude,’ Mr. Koh said. ‘It’s as though you had a priest with extremely strong moral values who was suddenly charged with leading a war.’”
The students said what is true: that Koh (and sadly, Barack as well) should be put on trial for killing civilians by drone, and one might add, for making themselves accomplices to torture (under the UN Convention against Torture, signed by President Reagan, the next government of the state committing the torture must bring those against whom there is serious evidence to trial) and for over 100 murders, once again according to Pentagon statistics, committed in the course of torturing. See here.
But the students had not even said that Koh could not teach at NYU Law School. The only thing they had said was that it is a farce to have Koh, however brilliantly, teach human rights law, given that he was a legal sanctifier in the government of murder, including of Americans (try the 16 year old Abdulrahman Awlaki and his American cousin, killed in Yemen at a rural food stand along with 8 Yemenis, by drone and see if you really want to be in the same room with an unrepentant Koh).
Further, these “‘human rights ” bullies punch at, seek to intimidate or ban non-empowered students from the Law, to teach them that haughty non-answering of argument is the only way to the top and that speaking truth to power is inconsistent with the practice of “human rights” law.
That was not why the students got interested in law, let alone human rights, and I will bet that quite a number stick to their perfectly reasonable argument (as the Economist underlines).
These prize fighters do not take on semi-equals nor display the slightest consciousness that mobilizing overwhelmingly against 40 students to cover likely criminality looks hasty and in bad faith (Sartre).
Now there is always the chance, a la late Scrooge, for some of the signers to apologize to the students and think and argue seriously about the issues the student petition raises.
I wouldn’t hold my breath, however.
Still, the rest of us ought to look carefully at the question of whether if this is American human rights “law,” it isn’t also apology for the still leading rogue state…(Obama has done some things to pull back from this status – again, the treaty with Iran – but drones are among the worst things America has done, making it resemble the Company in “Avatar”)
In addition, some at NYU, following Wittes, can point to Berkeley and Yoo as a precedent. For the existence of law, let alone the rule of law in America, has to be fought for from below; otherwise, the powerful, as is seen in the long record of crimes of genocide and murder against many nonwhite peoples in the United States and abroad, will trample what they profess – “free speech,” “the importance of argument in law schools,” “human rights” – and not even notice their Imperial nakedness…
Lastly, in the second article below (democratic resistance), the students tie in drone killings abroad with Ferguson and other murders of black people by the police at home (on Freddy Gray, seehere). This is the link that Martin Luther King, Jr. draws so strongly in “A Time to Break Silence,” about Vietnam; he could not speak to teenagers in Watts about nonviolence without denouncing “my government, the most violent government in the world…”
The Justice Department under Eric Holder (and Obama) have played a decent role in Ferguson (given that customary “law” gives police officers wide discretion to use guns to kill nonwhite people, and that the Justice Department went along with the taking out of Michael Brown because given this discretion, there was “insufficient evidence to prosecute”…).
What the students underline, however, is what I call democratic internationalism. Schools of Law and other public disciplines which sanctify war criminals and justify drones and torture as well as their enactors, attack democracy, law and basic individual rights at the root. The same arguments – “dispense with them without trial,” “secure confessions by torture” – apply equally at home in despotism and are what the Magna Carta in 1215 and habaes corpus (that the body must be delivered from jail to a trial without torture) are meant to prohibit.
Their denunciation marks the difference between a society of law at all (never America for many nonwhite folks and certainly, not the America of torture or drones) and a tyranny…
And for all the politician/press fanfare about American “exceptionalism,” which even had some validity with the election of Obama, a black man, whom the Republicans now shun as “other” and say, unendingly crazy things about, this is why people in the world increasingly fear and mock the United States, and American power and reputation abroad, deservedly, are in steep decline.
h/t Ray McGovern, Colleen Rowley, David Swanson, Todd Pierce and Francis Boyle
Here is the straightforward statement of NYU law students (signed by 350 people):
“More than 350 New York University Law students, students at other NYU schools, NYU faculty and alumni, non-profit and student organizations, intellectuals, experts, and other community members have signed the following Statement of No Confidence in Harold H. Koh. The statement condemns NYU Law’s hiring of Harold Koh to teach International Human Rights Law in light of his role as a key legal architect of the Obama Administration’s drone program, which has claimed thousands of civilian lives across the globe.
You can read and sign the statement here.
A full list of signatories can be viewed here.
STATEMENT OF NO CONFIDENCE IN HAROLD H. KOH
“A functionary, when he really is nothing more than a functionary, is really a very dangerous gentleman.” – Hannah Arendt, 1964.
Dear Dean Trevor Morrison and President John Sexton,
We, the undersigned students, organizations and concerned members of the NYU and global community, condemn NYU Law’s hiring of Harold H. Koh for the 2014-2015 academic year. NYU Law brands itself as “a private university in the public service” and prides itself on its commitment to civil liberties, human rights and international law. Yet, its decision to honor Mr. Koh as a “distinguished scholar in residence” calls these commitments into question given Mr. Koh’s role as a key legal architect of the Obama Administration’s extrajudicial killing program during his time as State Department Legal Adviser (2009-2013) .
From his position of authority within the Obama Administration, Mr. Koh has publicly argued for the U.S. drone program’s legality and has stated that “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” This is despite compelling evidence to the contrary, including evidence produced by NYU Law scholars.
In 2010, for example, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, issued a report that outlined why the U.S. drone program violates applicable international humanitarian and human rights laws. Moreover, in 2012, Stanford Law School’s International Human Rights and Conflict Resolution Clinic, in partnership with NYU Law’s Global Justice Clinic, co-authored a report that documented the devastation and the profound human costs that the U.S. drone program has exacted on civilians living in Pakistan. Among the report’s findings were: evidence that U.S. drone strikes have killed and injured substantial numbers of civilians; U.S. drone policies have inflicted profound physical and psychological harm on civilians; the percentage of high-level targets killed by drone strikes are estimated at just 2% of those killed by drone strikes overall; and, finally, the report found that “current US targeted killings and drone strike practices undermine respect for the rule of law and international legal protections and may set dangerous precedents.”
In addition to publicly defending the U.S. drone program’s legality, and thereby facilitating what Professor Alston has called “a burgeoning program of international killing” that does not comply with international law, Mr. Koh also directly facilitated the extrajudicial, unconstitutional killing of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011.
Investigative reporter Jeremy Scahill documents Mr. Koh’s particular role in Mr. al-Aulaqi’s assassination in his book, Dirty Wars: The World is a Battlefield. He reports that as legal adviser, “Harold Koh, wanted to lay out the case publicly before Aulaqi was killed,” in an effort to preempt critiques of the administration’s decision to target and kill a U.S. citizen in secret and without a trial. According to Mr. Scahill:
“In advance of his public speech, the CIA and military gave Koh access to their intel on Aulaqi. Koh settled in for a long day of reading in the Secured Classified Intelligence Facility. According to [Daniel] Klaidman, whose book [Kill or Capture] was based almost entirely on leaks from administration officials, Koh ‘had set his own legal standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it.’”
Mr. Koh’s “stamp of approval” for Mr. al-Aulaqi’s killing was particularly useful to the Obama Administration, Mr. Scahill reports, because his prior reputation as “a liberal, pro-human rights, pro-civil liberties lawyer” was “a strong preemptive strike against the critics.” In essence, Mr. Koh leveraged his human rights record to strengthen his otherwise specious arguments that the U.S. government was not violating either the human or constitutional rights of one of its own citizens. We find Mr. Koh’s conduct in this regard to be unethical and highly unprincipled.
While we believe that NYU Law should remain committed to academic freedom, we take issue not with Mr. Koh’s opinions but rather with his actions—that is, his direct facilitation of the U.S. government’s extrajudicial imposition of death sentences on U.S. citizens along with civilians of other nationalities. By hiring Mr. Koh to teach International Human Rights Law, NYU Law places its imprimatur not on what Mr. Koh thinks, but rather on what he did.
Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable.
 N.Y.U. Law Public Interest Law Center, http://www.law.nyu.edu/publicinterestlawcenter
 N.Y.U. Law, “Harold Koh will visit NYU Law in 2014-15 academic year,” http://www.law.nyu.edu/news/Harold-Koh-Distinguished-Scholar-in-Residence
 Lawfare, “The Obama Administration and International Law, Speech by Harold Hongju Koh, Legal Adviser, U.S. Department of State,” Mar. 25, 2010,http://www.lawfareblog.com/wp-content/uploads/2013/01/Speech-by-Harold-Hongju-Koh-State-Department-Legal-Adviser-at-the-Annual-Meeting-of-the-American-Society-of-International-Law-Mar-25-2010.pdf
 Conor Friedersdorf, Harold Koh’s Slippery, Inadequate Criticism of the Drone War, The Atlantic, May 9, 2013,http://www.theatlantic.com/politics/archive/2013/05/harold-kohs-slippery-inadequate-criticism-of-the-drone-war/275692/
 Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010), available athttp://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf
For instance, the Special Rapporteur noted that the United States government’s failure to provide transparency and accountability concerning those it targets and kills is a violation of the United States’ obligations under international human rights and humanitarian law. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, ¶ 87, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010) (“The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals.”).
 International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (2010), available at http://www.livingunderdrones.org/wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf
 The report notes that The Bureau of Investigative Journalism (TBIJ) has reported that, “from June 2004 through mid-September 2012, available data indicate that drone strikes killed 2,562-3,325 people in Pakistan, of whom 474-881 were civilians, including 176 children. TBIJ reports that these strikes also injured an additional 1,228-1,362 individuals.” Id. at vi.
 Id. at vii.
 Id. at viii.
 Philip Alston, The CIA and Targeted Killings Beyond Borders, 2. Harv. Nat’l Sec. J. 283 (2011) (abstract available athttp://papers.ssrn.com/sol3/papers.cfm%3Fabstract_id=1928963).
 Al-Aulaqi v. Obama Complaint for Declaratory and Injunctive Relief (violation of constitutional rights and international law — targeted killing), available at https://www.aclu.org/files/assets/alaulaqi_v_obama_complaint_0.pdf
 Jeremy Scahill, Dirty Wars: The World is a Battlefield 371 (2013).
Law Students Protest Harold Koh As Human Rights Lecturer
By Staff, www.rethinkkoh.wordpress.com April 14th, 2015
Above: Harold Koh by Chip Somodevilla for Getty Images
Harold Koh, former State Department official, supported drone attacks, war in Libya
Public letters from NYU law students concerning their criticism of Harold Koh and intimidation against them by faculty
On April 12, 2015, the student-organizers of the Statement of No Confidence in Harold Koh drafted the following letter in response to faculty intimidation:
To Our Classmates and Members of the NYU Community:
“We do not kill our cattle the way the US is killing humans in Waziristan with drones.” – Rafiq ur Reman
In the fall of 2013, Rafiq ur Rehman traveled with his 13-year-old son, Zubair, and 9-year-old daughter, Nabila, from their small village in North Waziristan to Capitol Hill. Their purpose in making this long and painful trek was simple: to appeal to the hearts of U.S. lawmakers by sharing stories of the carnage wrought upon their community and upon their family by U.S. drone strikes. In 2012, a U.S. drone strike had killed Rafiq’s elderly mother and severely wounded two of his young children.
Only five members of Congress showed up.
The suffering of thousands of individuals like Rafiq, Zubair, and Nabila, moved a few of us to author a Statement of No Confidence in Harold H. Koh. The Statement is fairly simple. It argues that due to Mr. Koh’s role as a key legal architect of the Obama administration’s targeted killing program, a program that violates International Human Rights Law, the Law School should not have hired him to teach that particular body of law. The petition extensively documents the factual basis for our position—and echoes the concerns of other students, academics, and human rights activists.
The gravity of targeted killings via drones and the factual basis upon which we built our petition warranted this expression of disaffection. Academic institutions, after all, are supposed to be places for honest and critical debates. At times, we have known NYU Law to be such a place—that is, a setting where compassionate and thoughtful people confront, rather than dismiss uncomfortable facts.
While we welcomed disagreement with the petition, we never fathomed that some faculty and administrators would, intentionally or not, work hard to quash our expression of dissent and intimidate numerous students. Professor Ryan Goodman, for instance, emailed every individual signatory of the petition, including some of his own students and advisees, and urged them to withdraw their support for the Statement. Withdrawal, he stated, “will reflect well on us as a community” [Goodman Letter]. Due to the power imbalances between students and faculty, we find his request inappropriate.
Stephen Bright, meanwhile, a Yale Law professor and known anti-death penalty lawyer, sent a disparaging email to his former intern, an organizer of the petition and an aspiring anti-death penalty lawyer, following repeated phone calls. He asked her whether she didn’t have better things to do with her time, and later claimed that the petition arose out of ignorance and inexperience. Concerning our corporate colleagues who signed the petition, Mr. Bright asked, “Does someone who is going to a firm to make hundreds of thousands of dollars a year representing corporations [have] any position to express a lack of confidence in Harold Koh?” [Bright Letter] Finally, another student was told that s/he was not welcome at Human Rights First for an internship since the organization held Harold Koh in high regard and was aware of the student’s signature on the petition.
Rather than a trial of the Obama administration’s targeted killing program, and the distortion of Human Rights Law that it represents, what we have seen unfolding over the past few weeks is the trial of students, mostly women and students of color, who have been dismissed as “naïve” and maligned as “smearers.” There has been no acknowledgement of the concern for human life that prompted the petition, or any acknowledgement that the more than 260 supporters of the students’ Statement include lawyers, students, scholars and pacifists from all over the globe.
Figuring prominently in this trial is Dean Trevor Morrison, who preemptively announced his verdict prior to meeting with the authors of the recent CoLR Statement: “[allegations of intimidation] are unfounded.” Ironically, the Dean himself, in his first-year constitutional law class, had described the petition as “smear,” “wholly inaccurate” and, once again, urged students to withhold support.
Two of his students did, in fact, withdraw their signatures from the petition despite privately expressing agreement with its merits.
Soon after, the Dean initiated a meeting with the organizers of the petition, ostensibly for the purpose of making our upcoming event “productive.” In the process, he called our public letters “vitriol unseen in the law school” and accused us of “inflicting wounds that will not heal.” His words, uttered to three students of color, two of whom are of South Asian descent, revealed a painful truth: the wounds inflicted upon the egos of the powerful are recognized and defended, while the wounds of Rafiq, Zubair, Nabila and thousands of unnamed others fail to register—not in our university discourse or in the government’s civilian casualty count. This, more than anything else, illustrates what this petition aims to counter and why it is so important.
For all that has been said by some members of the faculty and administration, we have been saddened by the silences prevailing in their responses. None of the thousands of people assassinated by U.S. drones are mentioned—not once. There has been no questioning of the “Drone War’s” legitimacy or meaningful engagement with our concern that Mr. Koh did in fact provide the legal rationale and cover for this program. There has been no reflection upon the relationship between state-sponsored violence abroad and state-sponsored violence here at home, in places like Ferguson, North Charleston, and New York. And there has been little concern with human rights becoming a field that legitimizes U.S. global hegemony by masking its questionable interference in the social and political structures of other nations.
Indeed, the silences do not stop there. Neither the facts nor the sources that we extensively cite and upon which we base our critique, were genuinely examined. Rather, they were largely dismissed. Meanwhile, we have been accused of leveling attacks that are not “evidence-based” and of launching nothing more than a “smear” campaign. We wonder: if we have gotten the facts wrong about Mr. Koh’s well-documented role in shaping and defending the U.S. government’s targeted killing program, why haven’t the true facts surfaced? Why are we asked to blindly take the word of his friends, who speak of past actions that have no bearing on his role in this particular violation?
We have sought to understand the troubling responses that we have received from some faculty and administrators. It occurs to us that those in government who defend drone attacks in Pakistan, Yemen, Somalia, and now the Philippines, or who justify wars whether in Iraq or Libya, expect to waltz comfortably through the revolving door from government back into the academy, while demanding silence concerning these crimes.
We desire to break these silences in order to demand accountability and to express our outrage with the devaluation of human life that the U.S. extrajudicial killing program reflects.
 For these reasons, the names of NYU Law student signatories have been made temporarily unavailable for public viewing.
* * *
On March 10, 2015, the student-organizers released the following statement:
To The Members of The NYU Law Community:
As the Statement of No Confidence in Harold Koh makes clear, U.S. drones have claimed thousands of lives across the globe. We reiterate the fundamental point that lies at the heart of our petition: the U.S. government’s extrajudicial killing program, for which Mr. Koh was a key legal architect and advocate, is immoral and violates the applicable international human rights and humanitarian laws governing the use of lethal force.
In light of the profound human costs that the drone program has exacted, we find it regrettable that Professor Posner mischaracterizes our petition and dismisses the serious concerns raised therein. Nowhere in the petition do we argue that there are no circumstances under which drones can be lawfully deployed. Rather, we expressly state that our concern is with the U.S. drone program’s profound human costs and with its illegality under international human rights and humanitarian law. There is powerful objective evidence to which we cite in support of our critique, which Professor Posner entirely fails to address (See Posner Letter).
We disagree with Professor Posner’s belief that “we need more Harold Koh’s in government, not fewer.” Rather, we believe that we need more principled people in government. We need people who will not advocate, as Mr. Koh has, the position that “[J]ustice for enemies ‘can be delivered [only] through trials. Drones can also deliver.’” We need people in government who won’t make paternalistic and Orientalist generalizations about Middle Easterners by calling the U.S. diplomatic withdrawal from the Middle East in 2001 “akin to removing adult supervision from a playground populated by warring switchblade gangs.” Koh, On American Exceptionalism, 55 Stan. L. Rev. 1479, 1490-91 (2003). We need people in government who are principled enough to resign when the government it serves pursues an immoral and illegal path that jeopardizes innocent lives, rather than defend this pursuit. We need human rights lawyers in government who will refuse to sit behind a desk and make decisions based on questionable U.S. intelligence about who lives and who dies, and then compare such decisions to the law school admission process.
It has not escaped our attention that Mr. Koh is regarded as one of the most respected and powerful international lawyers of our time. This does not deter us from our commitment to holding accountable members of our community who, like Mr. Koh, seem to have traded fealty to international law for a “ringside seat” at the table, at the cost of thousands of lives.
The costs of remaining silent are simply too high.
We live in a time when the state-sanctioned murder of black, brown and poor people within and outside of our borders is normalized. Unfortunately, even the most prominent and well-respected lawyers in the fields of international law and human rights have contributed to this normalization by shielding the architects of these policies from accountability and thereby defending the powerful against the powerless. We need to be courageous enough to say, “No more.”
For these reasons, we urge students, faculty, staff, and community members to continue raising their voices to protest NYU Law’s hiring of Harold Koh as a professor of International Human Rights Law.
Jon Laks; Amith Gupta; Amanda Bass; Lisa Sangoi; Amandeep Singh; and Dami Obaro.
* * *
On April 3, 2015, the Coalition on Law and Representation (CoLR), an NYU Law student group whose mission is to push for faculty diversity within the law school, released a public letter which condemns the repression that NYU law students have been facing in connection with their support for the Statement of No Confidence in Harold Koh. Their statement is included below.
Greetings and Happy holidays. We write to address the recent suppression of student voices by members of the faculty. About a month ago, several of our peers wrote a statement criticizing the decision to bring Harold Koh into our NYU Law family. In the finest tradition of student engagement, our peers asked if other students would voice support, and some did. Professors quickly responded.
One response was submitted publicly to the student body, and disagreed with the statement’s arguments on the merits. This response added to the public debate on hiring Harold Koh, and was exactly the kind of response that contributes to a more informed dialogue. However, this was not the only response.
Dissenting students received other emails. A number of faculty members sent private email messages to every student who signed the letter of concern regarding Mr. Koh, asking them to withdraw her or his support. Some students received more than one email.
Students have received emails from their current professors. Students have received emails from professors who manage programs in which those students are currently participating. Students have received emails from professors currently serving as their advisors or job references. Students have received emails from professors who head the students’ scholarship programs. Students have received emails from professors at other universities.
All of these emails shared a theme: signatories, withdraw your support, and, students, you must not speak out. No voice. No loyalty. Just exit.
We are troubled by the faculty’s tactics because they worked. We spoke with students who withdrew or withheld their support not because they disagreed with the statement, but because they were concerned with reprisal. At least one prominent faculty member has repeatedly denounced the petition to his class, leveraging his authority as a leader and a professor to silence the issue in exactly the environment in which it should be freely discussed.
In offering this statement, we take no position on Harold Koh or his employment at NYU. We take no stand on our national security policy. We offer this statement in support of student voices.
Student voices must be fostered, bolstered, and heard. We are, after all, training to be advocates. We cannot stand by while the faculty of this institution and others silence dissenting student voices. We find these actions inappropriate, and we find their chilling effect worrisome.
We also think the presence of robust, structured engagement of diverse student opinion regarding potential faculty members or guests prior to their appointment would help to direct student and faculty differences through less personal channels.
Fellow students, we encourage you to remain engaged, to continue sharing your affirmative or dissenting opinions. We encourage you to continue speaking. This is what our profession calls us to do.
Interview for Talk Nation Radio: NYU Students on Hiring a War Criminal to Teach Humanitarian Law. David Swanson, writer, activist, and radio host, interview Amanda Bass and Aman Singh.
Drone strikes and international law
Fallout reaches the ivory tower
Apr 22nd 2015, 15:49 BY K.K. | WASHINGTON, DC
ON HOT battlefields and in coolly targeted killings, America has regularly used armed drones in Afghanistan, Iraq, Pakistan, Yemen, Somalia, Libya and elsewhere for a decade and a half. In discussing drone strikes, it is easy to fall into abstraction. Take a speech by Harold Koh to the Oxford Union in 2013, after he’d left his position as the State Department’s top lawyer: “Because drone technology is highly precise, if properly controlled, it could be more lawful and more consistent with human rights and humanitarian law than the alternatives.”
High precision sounds nice—and drone strikes are indeed more precise than the bombing technologies they have displaced. But they can still miss their target. An attack near the village of Datta Khel in North Wazirstan in 2010, for example, accidentally killed 42 people. “Body parts were scattered for hundreds of yards, and had to be collected up in sacks,” writes Chris Woods, a former BBC Panorama producer and investigative journalist, in his excellent new book, “Sudden Justice: America’s Secret Drone Wars”. Mr Woods offers plenty of other examples of the innocent victims of drone attacks, and highlights the many ways drone pilots and sensor operators, who control Predator and Reaper drones from bases in the United States, struggle to do their jobs well and ethically.
As the State Department’s legal advisor, Mr Koh was one of the principle government lawyers responsible for crafting legal theories that reconciled American policy with international law. He was reportedly responsible for reviewing the evidence implicating Anwar al-Awlaki, an American citizen, in al-Qaeda plots, paving the way for an American drone strike that killed him and at least four other senior operatives in Yemen in 2011.
Before joining Barack Obama’s State Department in 2009, Mr Koh had been dean of Yale law school. He is now teaching a class on international human rights at New York University Law School. This has proven controversial. In March a group of NYU students and allied organisations wrote an open letter of no-confidence in his academic appointment, stating, “we take issue not with Mr Koh’s opinions but rather with his actions—that is, his direct facilitation of the US government’s extrajudicial imposition of death sentences.”
The letter doesn’t call for Mr Koh’s sacking, but condemns his hiring (he is on a one-year appointment at NYU Law). In response, nearly a thousand of Mr Koh’s supporters have written an open letter of their own praising his “unquestionable personal commitment to human rights.”
Yet Mr Koh’s commitment to human rights can indeed be questioned. Any reasonable observer would conclude that Mr Koh’s views evolved during his time at the State Department by the time he left in 2013. When he was nominated, his Yale colleague Bruce Ackerman wrote, “President Obama has selected one of the few lawyers who probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled.” By 2011 Mr Ackerman characterised Mr Koh’s congressional testimony as an instance where: “top administration lawyers rubber-stamp power-grabs even when they are in blatant violation of fundamental laws.”
Aside from his 2013 Oxford speech, Mr Koh has said little publicly about drone strikes since leaving the government. He didn’t respond to a request for comment left early Monday, but told Newsweek, “I don’t really think I should be in a position to make the case for myself when others have adequately done that.”
The pace of drone strikes in Pakistan and Yemen has fallen off substantially since its peak in Mr Obama’s first term (122 strikes in Pakistan in 2010 and 47 in Yemen in 2012). There have been five strikes so far this year in Pakistan and seven in Yemen, with no verified civilian casualties in either country. Mr Koh’s defenders claim he deservessubstantial credit for this drop-off. Michael Posner, an NYU business professor, who moved in parallel with Mr Koh from the State Department to the university, wrote in a letter to the “NYU law community“:
It is absurd and inaccurate to describe Harold as “a key legal architect of the Obama Administration’s extrajudicial killing program.” To the contrary, Harold was our government’s strongest and most effective advocate for policies rooted in the rule of law and human rights principles relating to the use of drones and other weapons of war.
But Mr Posner sets up a false choice. Mr Koh could well have been the “strongest and most effective advocate” for “human rights principles relating to the use of drones” and nevertheless also have been a key legal architect of a programme that has done“structural damage to the cornerstones of international security and set precedents that undermine the protection of life across the globe in the longer term,” as a UN report put it. As the NYU students pointed out in a follow-up letter:
It has not escaped our attention that Mr. Koh is regarded as one of the most respected and powerful international lawyers of our time. This does not deter us from our commitment to holding accountable members of our community who, like Mr. Koh, seem to have traded fealty to international law for a “ringside seat” at the table, at the cost of thousands of lives.
The students protesting Mr Koh are right to try to hold him to account for the government’s actions during his time of government service. The revolving door between elite academia and the higher levels of government is defensible only insofar as the inside knowledge of former bureaucrats is used to better educate students. Mr Koh ought to be judged by more than the single issue of American drone strikes. However, that issue is an important one. A fuller public accounting of his own role would go a long way towards making the case that the compromises necessitated by government service left him not only more eminent, but also wiser.
Harold Koh in the cross hairs
Student protest targets former Obama administration lawyer Harold Koh.
By NAHAL TOOSI
4/19/15 5:59 PM EDT
Harold Koh, the former dean of Yale Law School, once railed against the Bush administration’s treatment of terrorism suspects, including deriding legal rationales laid out by a former student, John Yoo. After Yoo left the Bush team to return to teach at the University of California-Berkeley’s law school, he found himself a pariah, with many students unsuccessfully urging the school to drop him for policies they said justified torture.
Now, Koh is the one finding himself under pressure at an academic institution for his legal reasoning on how to deal with terrorism suspects, in particular the rationales he laid out to justify the use of drone strikes while working for the Obama administration.
The new controversy, which originated at New York University School of Law, has left his supporters aghast and his attackers defensive.
Yoo, for the record, finds the whole thing “silly.”
The drama began early last month, when a group of NYU law students organized a “statement of no confidence” in Koh, who was brought to their institution as a distinguished scholar-in-residence for the 2014-2015 term. This semester, he’s been teaching a course that covers human rights and international law.
The statement refers to drone strikes as an “extrajudicial killing program,” and condemns NYU’s law school for affiliating itself with Koh. It even quotes Hannah Arendt, the political theorist who covered the trial of Nazi criminal Adolf Eichmann, as saying, “A functionary, when he really is nothing more than a functionary, is really a very dangerous gentleman.”
In the weeks since, the petition against Koh, which has picked up around 300 signatures so far, has prompted a backlash at NYU and well beyond.
Allies have spoken out in favor of Koh, who served as the legal adviser to the State Department during President Barack Obama’s first term, when Hillary Clinton was secretary of state. Koh, they argue, did everything he could to bring the government’s national security policies into a proper legal framework — with the promotion of human rights firmly in mind. The gist of their argument is that had Koh not been there, things could have been worse.
Koh’s supporters recently released a statement that, while careful to acknowledge the importance of free debate, said, “We think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty.”
The letter in support of Koh has more than 400 signatures, including those of several of Koh’s colleagues at Yale and other prominent names — conservative and liberal — from across the country, such as Laurence Tribe of Harvard Law School and former U.S. solicitor general Ted Olson. John Sexton, the president of NYU, is also listed as a signatory, as is Yale’s Jake Sullivan, who is expected to be a top foreign policy adviser to Clinton during her 2016 run for president.
Perhaps Koh’s biggest cheerleaders have been some of his current students, who go to great lengths to praise his teaching and scholarship. They characterize Koh’s critics as a small group whose voice has been unduly amplified at an institution where most students either support or have no opinion on Koh.
“I’m really dismayed by the whole petition,” said Georgia Stasinopoulos, a second-year law student who is taking Koh’s class this semester. “A lot of people can have opinions about drone strikes and extrajudicial killings. But I’m not sure Professor Koh is the appropriate subject of that criticism.”
The students behind the no-confidence statement, who have engaged in an extensive back-and-forth online with their critics, say they’ve been unfairly treated as well.
The latest version of their petition online hides the names of law student signatories (it says there are more than 40 of them) because of what it describes as “aggressive intimidation” by faculty and administrators, although it says the names may be disclosed after the grading period is over.
Amandeep Singh, a law student who helped organize the no-confidence statement, said that it was really aimed more at the university administration than at Koh. Singh also dismissed criticism that he and fellow signatories should have reached out to Koh ahead of time, noting that the professor had written and spoken widely about his positions.
“The petition doesn’t call for him to be fired or really any action on the part of the administration. It was more an expression of condemnation,” Singh said.
Koh is no novice when it comes to personal attacks. He was called a hypocrite for his service during the Obama administration, with some critics noting that while he slammed the Bush administration for holding terrorism suspects without trial at Guantanamo, he was now justifying using drones to flat-out kill suspected terrorists.
“The old Harold Koh would have eviscerated the Harold Koh who now offers ludicrous redefinitions of ‘war’ and ‘hostilities’ so he can get the policy conclusion he wants,” wrote a Wall Street Journal columnist who also drew a Koh-Yoo comparison.
Koh’s supporters point out that while at State, he was doing his best to serve a client — the government. They point to multiple reports that he often staked out more liberal positions than others trying to craft a post-Bush approach to the fight against terrorist groups, including on the critical questions of who could be killed and captured. And since leaving government, he has urged the Obama administration to be more transparent about its use of drone strikes.
Koh has largely tried to avoid weighing in publicly on the fierce discussions at NYU, but in a statement to POLITICO, he said he was “very moved” by those who have come out to support him.
“I’ve truly enjoyed my visit to NYU and have enjoyed getting to know many students, especially my human rights class, which has taught me a lot about so many hard questions,” Koh said in the statement. “As the term ends, I only wish the student organizers of the petition had joined so many other NYU friends who engaged me in thoughtful dialogue about these difficult issues.”
The administration of the law school, which has an enrollment of more than 2,000, has watched the controversy grow with frustration, especially amid allegations that students were being intimidated. The dean, Trevor Morrison, has stressed the importance of allowing open debate and insisted that there will be no repercussions against people who signed the petition against Koh. But he, too, has faced accusations of insensitivity toward the no-confidence statement’s supporters.
The broad support for Koh is a key difference between his story and that of Yoo, whose conservative ideals, including an expansive view of presidential power, don’t have nearly as much support in academia or beyond.
Yoo served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice from 2001 to 2003. He is said to have written many of the so-called “torture memos,” which provided legal cover for harsh interrogation tactics used against terrorism suspects. Since returning to teaching, he has faced periodic protests from students as well as public officials.
When asked Friday about the pressure Koh is facing, Yoo said that although he disagrees with Koh on many issues, “the NYU protest strikes me as silly.”
“A university should bring forth all points of view, even those — especially those — that students, alumni, and faculty do not like,” Yoo wrote. “How better could law students learn than from someone like Harold, whose role as a government lawyer may have run counter to his views as a legal scholar and activist? If there are students, faculty, and alumni who think Harold should be excluded from the NYU community, they may want to go to a university that cares more about protecting their feelings than improving their minds. But they will be worse off for it.”
As far as the parallels between his story and Koh’s? Said Yoo: “I don’t believe in karma.”
|Open Letter In Support of Harold Hongju Koh