Armed Conflict Congress Executive Branch Foreign Relations & International Law

Koh on Koh

Jack Goldsmith
Thursday, June 23, 2011, 6:26 AM
Last Friday I speculated on why Legal Advisor Harold Koh, a leading academic critic of presidential war unilateralism, supported President Obama’s constitutional arguments for the Libya intervention, as well as his restrictive interpretation of the War Powers Resolution.  At about the time I posted those thoughts, Koh was giving a speech at the American Constitut

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Last Friday I speculated on why Legal Advisor Harold Koh, a leading academic critic of presidential war unilateralism, supported President Obama’s constitutional arguments for the Libya intervention, as well as his restrictive interpretation of the War Powers Resolution.  At about the time I posted those thoughts, Koh was giving a speech at the American Constitution Society convention in which he touched on these issues.  Here are some relevant excerpts:
Now at one point in my confirmation process I met with my handlers and one of them said, “You know, you might want to apologize for some of the things you wrote.”  And I said to him, “Can we get one thing straight, I am not apologizing, I did nothing wrong. I’ve lived the life I wanted to live, I’ve said the things I wanted to say.  If you really want me to say I’m sorry, I’ll say I’m sorry that my life’s work has been misunderstood.  But at my confirmation hearing, mark my words, I want to say on the record I stand by every word I ever wrote . . . .” . . . Now sometimes people ask me, and they usually do it at a place like this at the cocktail hour, “You know, isn’t it hard to be a government lawyer, having to say all those things you don’t believe?”  So my answer, and I say it to all of you: I never say anything I don’t believe. . . . [I]f you hear me say something you can be absolutely sure that I believe it, and that’s true whether I’m speaking about the U.S. policy toward the International Criminal Court, the legality of the Administration’s positions on drones, the lawfulness of the  military operation against Bin Laden, or the Administration’s position on war powers in Libya.  If I say it, I believe it and I intend to stand by it and to argue for it. Now in this day and age some people love to play “gotcha,” and it’s easier for them to do so.  The longer I serve in government, I get  questions of the following form: "You’re a hypocrite, aren’t you?"  . . .  You know, there’s a down side to having a paper trail which is that people who are obsessive enough can actually read it.  Well, read it is a little strong.  Go through it scavenging for quote lines and then you read [unintelligible] a blog that says, “Koh’s a hypocrite isn’t he?  Why?  Because when he was 29 years old he wrote this but today, years later, he’s saying that.  So obviously he has caved to political pressure."  Now this happens not all the time but every once in awhile and my answer is always, first: I think what I believe I believe.  I don’t think the two statements are really inconsistent.  If you put both quotes in their context, most reasonable people would see why I honestly believe what I said then and honestly believe what I say now. Most of the time, in fact almost all the time, I see no inconsistency whatsoever.  I learned this from Justice Blackman who was frequently accused of being inconsistent over his 60 year career.  And one day he said to me with a smile, “Harold, some people forget, life is long and you actually learn things.”  How about that.  You get older and you get wiser. And you know what?  I trust my judgment now more than I did when I wrote stuff 30 years ago.  So if you want the better view, I’d say trust what I’m saying now, because it reflects a lifetime of thinking about hard problems, not a sentence I put in to complete a footnote in a tenure piece. [minutes 33:15–38:02 on video]
Earlier, Koh explained his view of the relationship between his roles as Legal Advisor and academic:
[D]ifferent roles place very different demands on the same lawyer.  To illustrate, in my own career for more than 30 years as a lawyer in every job I’ve held I’ve struggled with the same question: how to promote a lawful US foreign policy. But during that time I’ve served in and out of the government.  I’ve been a professor, human rights activist, a policy maker and a government lawyer.  So those are very different roles and you have to understand the differences between them.  Now that’s hard to do. . . . But the harder question is not the difference being a government lawyer and a Dean, it’s what’s the difference between being a government lawyer and a professor?  Well the roles are different in three senses.  First, professors try to be individualists; government lawyers are team players.  Second, professors measure success by how cogently you express yourself; government lawyers measure success by the results you achieve.  Now in the policy world there are real consequences and greater uncertainty, so being wrong has real costs.  And in academia the best thing is to be original, innovative.  I often go to faculty meetings where they said, "He wrote an article that had a spectacularly original, wrong idea. He should be made Dean."  In the real world, having a spectacularly innovative, wrong idea is scary.  So government lawyers seek to be effective by unearthing tradition and following precedent.  So what does this mean for roles?  Well first, as a government lawyer I advocate for others; as a professor, I advocate for my own position.  And so my role now is fiercely advocate, honestly defend.  I advocate inside the government fiercely for my preferred position; when a decision is taken I defend it honestly.  So what does this mean?  As a matter of policy I am opposed to the death penalty.  I have litigated cases against the death penalty.  I think it is wrong, I think it is counter-productive.  But I do not yet think in all of its manifestations it is illegal under international law.  That day may come, I hope it does come, it hasn’t come yet.  So as a government lawyer I’m constantly called in places like Geneva, New York, to defend policies of states with regard to the death penalty, and I can honestly defend the international lawfulness of policies that I would not personally advocate as a matter of human rights policy.  Why?  It is a different role.  They don’t have another lawyer who is in the position to make the defense.  If I wasn’t prepared to make the defense, I shouldn’t have taken the job.  Second, as a lawyer I defend my client’s right to choose legally available options.  Now, Herman Phleger, a former Legal Advisor put it well.  He said, “Never say no to your client when your law and conscience say yes, but never, ever say yes when your law and conscience say no.”  So in the government when a number of options are on the table, you should remove the illegal options.  Say, that option is not legally available, like torture. . . . So if that option is put forward you should say "no, it’s not legally available."  Not try to figure a way to pretend that it is.  But, there is a flip side to this.  Your client has a right to choose from the other options, even those you think are lawful if awful.  And if that’s the choice they make you have to give it your vigorous defense.  Third, my personal scholarly views may differ from the stare decisis of the executive branch.  My views, I have them, I have 150 articles worth and a bunch of books.  But as Walter Dellinger observed when he worked at the Office of Legal Counsel: "Unlike an academic lawyer an executive branch attorney has an obligation to work within a tradition of reasoned executive branch precedent memorialized in formal written opinions.  Lawyers in the executive branch have thought and written for decades about the president’s authorities.  When lawyers who are now in my office begin to research an issue, I don’t expect them to turn to what I wrote or said at a law professor’s convention.  They look at the previous opinions of the Attorney General and heads of this office to develop and refine the executive branch’s legal position." Now that’s not to say that one administration can’t and should not reverse legal positions of another administration.  But it does mean that government lawyers begin with a presumption of stare decisis unless after careful review they think the prior interpretation is unwarranted.  Now this is not surprising.  After all criminal defense lawyers or prosecutors who become judges play a different role and they approach the law from a different perspective.  But I am amazed, I am amazed, how few lawyers outside the government understand the three points I just made, so I will repeat them. Being a government lawyer may require you to defend human rights policy decisions you personally do not prefer.  If your client chooses a legally available option you should defend it or quit.  And if your position and the government position of long standing conflicts you must give a presumption of deference to the government position until you follow the right procedures for getting it overturned.  [minutes 20:02–27:36 on video]

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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