Bench Memos

Law & the Courts

Harold Koh, War Criminal?

There is a lot to find amusing in the student protest at NYU law school against former State Department legal adviser, and visiting Yale law professor, Harold Koh (whose radical transnationalist legal views I critiqued in this extensive series of posts opposing his 2009 nomination). Lawfare’s Ben Wittes nicely exposes the various “layer[s] of nonsense.” Some excerpts (emphasis in italics):

The first layer of nonsense is that, as the student protesters put it, Koh was “a key legal architect of the Obama Administration’s extrajudicial killing program during his time as State Department Legal Adviser.” No, he wasn’t. Those who have defended Koh have tended to stress that he was “a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.” They are being delicate: Koh was an obstructionist.

 

In fact, Koh fought tenaciously to limit drone strikes. He greatly irritated—sometimes infuriated—his counterparts in the interagency process with both his substantive legal positions and his frankly bullying style of engagement. The proper criticism of Koh is not that he was a shill for the drone program, though he did speak at ASIL on the subject. It is that he threw significant roadblocks in the way of the program and gummed up the works with policy objections masked as legal objections.…

The second layer of nonsense is that Koh is some kind of victim here of an academic culture that has trouble acknowledging the complexities of government service. Let’s be candid: Koh is reaping what he sowed. Nobody in academia was harder on those who, in the service of the prior administration, took positions with which Koh disagreed. Koh was not more careful with his own rhetoric than his student critics are with theirs about him. And since leaving government, he has, with what has become a laughable silliness, insisted that there are no contradictions between the positions he took prior to his service and the positions he took in office. The students are being ridiculous, but I have heard Koh himself sound more similar to than different from those who now oppress him.

Most Popular

There Is No COVID Plan

The 2020 campaign for president has been surprisingly empty of substance since Joe Biden became the nominee. The Republicans notably didn’t even bother updating their party platform. Donald Trump’s team has spent many of the last days of the campaign making personal attacks, focused on the alleged financial ... Read More

There Is No COVID Plan

The 2020 campaign for president has been surprisingly empty of substance since Joe Biden became the nominee. The Republicans notably didn’t even bother updating their party platform. Donald Trump’s team has spent many of the last days of the campaign making personal attacks, focused on the alleged financial ... Read More
Elections

What Trump Needs to Win

On the menu today: walking through President Trump’s not-so-implausible route to 270 electoral votes, state by state, and taking a look at the gubernatorial races this year -- where GOP candidates from deep red states to a few blue ones are polling considerably ahead of Trump this cycle; and how the country ... Read More
Elections

What Trump Needs to Win

On the menu today: walking through President Trump’s not-so-implausible route to 270 electoral votes, state by state, and taking a look at the gubernatorial races this year -- where GOP candidates from deep red states to a few blue ones are polling considerably ahead of Trump this cycle; and how the country ... Read More