Harold Koh: Lawyer, Professor, Statesman

Harold Koh: this dude abides!
Harold Koh: this dude abides! // Kerri Lu

Immediately after Barack Obama’s second inauguration on Jan. 21, the State Department’s legal adviser, Harold Hongju Koh, returned to Yale. Koh served as the dean of Yale Law School from 2004 to 2009 and as a professor there since 1985. Last week, he was appointed Ster- ling Professor of International Law. Koh, who had been a strong critic of President George W. Bush’s ’68 “War on Terror,” is an interna- tionally renowned scholar of human rights. However, in the Obama administration, he has come under fire from former allies for his expan- sive views on the president’s authority to use unmanned drones to kill suspected terrorists abroad. On Tuesday, Koh spoke at a packed Master’s Tea in Davenport. Hours before that, WEEKEND sat down with Koh to discuss executive authority, drones and who he wants to see fill the next opening on the Supreme Court.

Q. I have been told that as a professor you were a strong critic of overly broad executive power. In 1990, you wrote a brief challenging President George H. W. Bush’s ’48 authority to fight in the Gulf War, and in 1992 and ’93, you sued the United States government and the president. How has your work in the executive branch under President Barack Obama changed your views on executive power, if at all?

A. It hasn’t changed my views at all. I believe in a government of checks and balances. And I believe that an energetic executive is an important piece of that. I think that the thing that’s changed the most is just a political fact, which is that Congress has had much more difficulty constructively engaging on these questions. In most countries in the world, the legislature can pass a budget or make sure you don’t default on your debt, and [Congress’s failure to do these things] is increasingly becoming a problem in this country. So, the executive obviously has to act according to constitutional rules, and if you’re going to do so in cooperation with Congress, so much the better.

Q. Speaking of executive power, in 2009, you became the legal adviser to the State Department. In that capacity, in May of 2010, you said that using drone strikes against al-Qaeda and other terrorist organizations was a lawful military action and not an assassination, which is banned by executive order. Can you explain to an undergraduate audience the distinction between legal targeted killings and illegal assassinations?

A. What occurs in the context of an armed conflict or war is not assassination. If a general of the Japanese government launches an attack at Pearl Harbor and kills thousands of Americans, we declare war on the country, and, in the course of the conflict, he’s one of the people who’s considered to be an enemy leader, then that is a lawful use of force. All killing is tragic. But there is a different between lawful and unlawful tools of war. So, 3,000 are killed in New York for going to work, by leaders of a nonstate actor, and the question is, can you respond to those leaders, after Congress has declared war on them and after we’re in an armed conflict with them?

Q. Yet while you were a professor you criticized George W. Bush’s ’68 “War on Terror” as unconstitutional because it involved capturing “enemy combatants” abroad and holding them without trial at Guantanamo Bay. In Obama’s administration, the government has used aerial drone strikes to kill suspected terrorists. To the casual observer, it seems like there’s a tension between denouncing imprisonment and supporting drone strikes (which can have collateral civilian casualties). Can you explain what appears to be a contradiction?

A. Torture is always unlawful, even in wartime and even against your enemies. In an armed conflict, the laws of war police the line between lawful killing — which is of people you’re at war with, like Osama bin Laden — and unlawful ones. And so, you can be opposed to torture in all situations, as an illegal means of the use of force — even in wartime. But if you think your government is engaged in a lawful armed conflict, it has to have the authorities that go along with it, lawfully.

Q. For almost two years, you were among the only Obama administration officials to speak publicly about the legal basis for aerial drone strikes to kill American enemies. You then justified the administration’s decision to engage in a conflict against Libya without congressional approval because the president does not need congressional approval to engage in “hostilities.” Because of these statements, a number of your old allies have publicly criticized you. Has the criticism from old friends and allies made you rethink any of your positions?

A. No. First of all, the two things you mentioned have gotten a lot more press than 95 percent of the way I actually spent my time. So I always find this interesting. But a simple fact is this: I’m not the only person who said that congressional approval wasn’t necessary. John Boehner said congressional approval wasn’t necessary. Harry Reid said congressional approval wasn’t necessary. Nancy Pelosi said congressional approval wasn’t necessary. And John Kerry, as chairman of the [Senate] Foreign Relations Committee, said it wasn’t necessary. And Congress had made it clear that they would not approve what was going on, although they wanted the executive branch to do something. … My real question is: Was the War Powers Resolution, which was passed to stop future Vietnams, supposed to be used to allow more Rwandas and Srebrenicas? And my view was that was not the situation they were thinking of. I had written dozens of articles on the War Powers Resolution, and I understood the legislative history of it. We never said that the War Powers Resolution was unconstitutional. We just said it didn’t apply to that circumstance. And I, to this day, think it doesn’t.

Q. Over the last several years, whenever a new vacancy on the Supreme Court has opened up, your name has been raised to fill it. If you could choose one person other than yourself, who would be your dream nominee?

A. I think probably Hillary Clinton [LAW ’73].

Q. Would you care to explain why?

A. She’s a very smart lawyer who understands how law and politics work together. She might have other thoughts about how to spend her time, but she would be an obvious good candidate.

By the way, Barack Obama is not precluded, and he’ll be a pretty young guy who’s done with electoral office in four years, so that would be interesting. You know, William Howard Taft 1878 sat on the Supreme Court after he was president, so it’s not unprecedented.

Q. The Supreme Court has been in the news quite a lot in the last couple years, especially with the controversial Citizens United and Affordable Care Act cases. How do you feel about the overall direction of the court? Do you feel it is too partisan or too activist, too liberal or too conservative?

A. Well, it’s a very conservative court. I think that it’s different factions with one particular justice playing a swing role. So, as a result, it reaches some results in one direction and some results in another direction. I think, though, the thing that I worry about is that the Supreme Court decides many fewer cases, and there are large parts of American life and global life that it really has no opinion on. When you’re a first-year law student, you think that the Supreme Court occupies the world of law, and then when you’ve been the legal adviser of the State Department, it’s surprising how many issues you deal with in which the Supreme Court has absolutely nothing to say. That’s because of restrictions on its jurisdiction and its power to express views.

Q. Speaking of law schools, there is a proposal gaining traction in New York that would allow law students to sit for the bar after two years of law school — in other words, you wouldn’t need a J.D. Do you think that’s a good idea? What do you think would be the impact that would have on law schools?

A. I don’t think it’s a good idea. But you have to put this into perspective. There’s always been an apprenticeship route to taking the bar. In the old days, people graduated from college and they worked for a law office, and then they took the bar and they didn’t take any classes. So the rise of the professional law school, as a three-year entity, is very much a product of the 18th, 19th and 20th centuries.

But I think law schools have done a lot better to become fuller experiences. It’s not just the study of legal rules, but it’s clinical practice, extracurricular activities, summer internships. I think that there’s still plenty of work to be done.

Q. Related to that, in 1985 you left the Justice Department and took a job teaching at Yale Law School. Why did you leave a job in public service and become a professor?

A. So, in Korea, there’s a term called “sun sang nim,” which means teacher. But it actually means more like Jedi Master. It’s a term of reverence. Teachers are the greatest thing in Asian culture. And it’s an easy decision to go be a teacher. My father once said to me the way you shape the future is by the students you teach. And this time when I left the State Department, I mentioned a movie called “Mr. Holland’s Opus.” I don’t know if you’ve seen it. It’s about a guy who’s a music teacher who thinks his job is to write the great symphony, but he turns out teaching many students and his opus is actually the students he influenced. I feel the same way.

Maybe in your own life you don’t accomplish everything you personally would like to accomplish, but you can challenge students to think more broadly about their own futures, and then, who knows? At the end of your life, it’s all of the people who’ve been affected by the ideas you’ve tried to convey and what they accomplish that count. The law professors who taught Bill Clinton [LAW ’73], for whom I served in one administration, and Hillary Clinton, had an unbelievable impact, even though nobody remembers their names or what they taught them.

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