Harold Koh

  • May 29, 2013
    Guest Post

    by Sam Kleiner, a law student at Yale Law School and member of the ACS Yale Law School Chapter.

    In his widely-noted speech at the Oxford Union, Harold Koh (pictured) invited us to imagine a different response to September 11. It's easy to think that the path taken by the Bush administration was driven by a pre-destined sense of necessity, and Koh's invocation of a President Gore (a timely counter-factual with Justice Sandra Day O'Connor's musings on that election and the Supreme Court’s involvement), offers an alternative/hypothetical response in the time-tested law enforcement approach.

    At Lawfare, Ben Wittes defends the Bush administration’s record as oriented on a law enforcement approach. Koh argued that the Obama administration's approach "combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda" and Wittes countered that this description fit the Bush administration's approach. 

    Contrary to Wittes’ attempt to frame the Bush administration as focused on law enforcement, President Bush specifically rejected this approach and attacked candidate John Kerry for suggesting this path forward. In 2004, when Kerry emphasized his background as a prosecutor and urged that terrorism be considered through a law enforcement lens until it became a "nuisance," Bush attacked him vehemently. Kerry argued for an approach that was, "less of a military operation and far more of an intelligence-gathering law enforcement operation." Bush responded: "I disagree -- strongly disagree. … After the chaos and carnage of September the 11th, it is not enough to serve our enemies with legal papers. With those attacks, the terrorists and their supporters declared war on the United States of America, and war is what they got." Wittes boasts of a more restrained argument from the Bush administration and he cites a 2006 speech by John Bellinger and a Bush administration brief filed in Boumediene (after losing hugely in RasulHamdi and Hamdan), of a more restrained vision of the war on terrorism. Bush did move away from the GWOT framing in his second term largely because he had been thwarted by the courts and Congress. What Koh invites us to ponder -  and Wittes fails to comprehend - is that you could have had a response to 9/11 that started with a deeply powerful law and order framework rather than heading down the rabbit hole by making outlandish claims of unilateral executive power that threatened constitutional order. By 2006, it was too little too late.

  • July 6, 2011

    Whatever the flaws of President Obama’s determination that continued U.S. intervention in Libya is legally authorized, analogies to the Bush administration’s justification of its torture policies are “dangerously misguided and threaten important lessons we could learn from both episodes,” writes University of Indiana law professor Dawn Johnsen in a column for Slate.

    Johnsen (left), an ACS Board Member whose nomination to head the Office of Legal Counsel was filibustered, has openly criticized President Obama’s reported decision to take the legal advice of White House Counsel Robert Bauer and Department of State Legal Adviser Harold Koh, over the advice of the Office of Legal Counsel, which would typically have guided the president on this issue.

    She adds in this column that she disagrees with the legal conclusion adopted by President Obama — that continued U.S. intervention in Libya without congressional approval does not violate the War Powers Resolution, because U.S. military activity does not constitute “hostilities” as the word is used in the statute.

    But, she emphasizes, recent commentators who have equated the Obama administration’s approach to executive power with the Bush administration’s have gone too far, and failed to recognize stark differences in the quality and transparency of their legal analyses. She explains:

  • June 28, 2011

    The debate continued today over the legality of the ongoing U.S. military operation in Libya, as Department of State Legal Advisor Harold Koh explained the administration’s position in testimony before the Senate Foreign Relations Committee.

    Koh is the latest to wade into the debate over whether President Obama violated the War Powers Resolution by maintaining a military operation in Libya for more than 60 days without obtaining congressional approval. And his testimony comes four days after the House failed to pass two bills on the military operation — one that would have authorized military intervention for a year, and a second endorsed by House Speaker John Boehner that would have required an end to combat activity, NPR reports.

    A panel of experts addressed the legality of the military intervention in Libya during a panel on executive power at the ACS Tenth Anniversary National Convention earlier this month, with several on the panel questioning the strength of the Obama administration’s argument that the 60-day limit does not apply because the military operation in Libya does not constitution “hostilities” under the War Powers Resolution.

    During the panel and in a subsequent video interview, Ohio State University law professor Peter Shane said he thought the administration’s argument could be made with a straight face, but added, “just barely,” in later comments that followed news reports of some 60 airstrikes in Libya since April.

    Georgetown University law professor Martin S. Lederman, who was assistant deputy attorney general in the Office of Legal Counsel during the Obama administration, agreed in part, saying, “It’s just very difficult to say that a sustained bombing attack even by unmanned drones is not hostilities."

    The panelists also touched on recent reports that President Obama took the legal advice of Koh and White House Counsel Robert Bauer over that of lawyers at the Department of Justice and the Pentagon on whether congressional authorization was required.

    Walter Dellinger, who has served in high-level positions at both the Department of Justice (as acting solicitor general and as head of the OLC) and the White House (as a legal advisor), chimed in from the audience to explain the “profound difference” between getting legal advice from White House lawyers and Justice Department lawyers, and why the process matters:

  • June 21, 2011

    The Senate today confirmed Perkins Coie partner Michael H. Simon to the U.S. District Court for the District of Oregon, by a vote of 64 to 35.

    “The divided outcome on a nominee who was praised as a legal authority and highly qualified, reflected the slow and frustrating pace as well as the sharp partisan nature of nearly all confirmations,” reports The Oregonian.

    Simon (pictured) was originally nominated by President Obama almost a year ago in July 2010, and had been approved by the Judiciary Committee twice, but the Senate failed to hold a vote on his nomination, despite the declaration of a judicial emergency in Oregon.

    As Congress’s summer recess approaches, there are still 88 vacancies on the federal courts subject to Senate confirmation, 35 of which have been deemed judicial emergencies.

    “This is a very intentional well-designed program to keep as many seats open so that a future Republican president will put judges on it,” said Alliance for Justice President Nan Aron on “The Rachel Maddow Show” yesterday. She continued:

  • June 20, 2011

    A standing room only crowd at the ACS 10th Anniversary National Convention of the American Constitution Society heard State Department Legal Adviser and former Yale Law School Dean Harold H. Koh offer "guideposts" for lawyers on how to enjoy meaningful and productive lives, urging them not to discard their principles or refuse to take stands in order to land a government job.

    “In Washington you are only as good as your principles and the principals you work for,” Koh said. "That means you have to choose the right principals and choose the right principles."   He continued, “Life is too short to spend it waiting to be honest. Life is too short to keep all your heartfelt beliefs to yourself. It is the job of engaged citizens, and members of this Society to speak up and to stick by what you say."

    "So my plea to you is to stand for something," Koh implored. "Stand for the principles of this Society [ACS]. Stand for the rule of law and human rights principles that made you become a lawyer. Live by your principles. And stick by them. And if certain jobs don't come your way, you have your principles, which are more important."

    Koh provided the guideposts against a backdrop that he described as a "funny time, because like the Tale of Two Cities, for many of the members of this Society [ACS] this is the best of times and the worst of times."

    In what he also called a politically charged environment, Koh highlighted the increasingly acrimonious confirmation process for President Obama’s nominees, noting some setbacks for legal scholars who have spoken their beliefs and stood by their principles.

    Citing the Senate's unprecedented obstructionism of the president’s judicial and executive branch nominations, Koh noted the recent filibuster of UC Berkeley law school professor Goodwin Liu, the former ACS Board chair, to the U.S. Court of Appeals for the Ninth Circuit, and the defeat of the president’s initial selection to lead the Office of Legal Counsel (OLC)

    "We live in an environment where people like Dawn Johnsen [the president's initial selection to head the OLC, also an ACS Board member] and Goodwin Liu can't get confirmed, when there is no one more qualified than they are."

    To a standing ovation Koh referred to his "good friend" Liu, saying, "In Washington, you are controversial. In our world you are anything but. In our world, you are a hero. We are proud of you; we have always been, and we will always be."

    Watch video of Koh's speech here or by clicking on image below. Visit the ACS web site for additional video and reporting on the ACS 10th Anniversary National Convention.