Twenty-first-century problems - twentieth-century international law.

Author:Koh, Harold Hongju
 
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It is great to be back here with so many friends. I have former students, colleagues from the State Department, and members of the two law schools.

As Dean Scharf said, in my last four decades, I have spent more than thirty years as an international law professor, five years as a dean, twenty years as a human rights lawyer, and ten years in the U.S. government.

Just to give you some pictures, the upper left-hand corner is me appearing before the U.N. Human Rights Council in Geneva; the upper right is at the Kremlin for the Nuclear Security Summit; the bottom left, Afghanistan; and the bottom right, Guantanamo. I first went to Guantanamo in 1992, and I have been there now, I think, nineteen times.

On the left, Iraq; in the middle, Greece, for the financial crisis; on the far right was with Secretary Albright at the funeral of Kim Daejung, former President of Korea and Nobel Prize winner. And, I appeared in many courts: the International Court of Justice on the left, in the Kosovo case; the European Court of Human Rights in Strasbourg; the African Court of Human and Peoples' Rights; and as the head of our delegation to the International Criminal Court.

I took many flights, and this is the most famous. This has become classic. We were flying into Tripoli after the Libya intervention on a transport plane from Malta, and because Secretary Clinton was there, we were put on these four nice seats. We got on, and they started taking pictures of us. So I texted to her "look over your shoulder," and that's what she is reading.

I worked on issues, both natural and manmade: Wikileaks, the earthquake in Haiti, the Fukushima meltdown in Japan, the Arab awakening, human rights issues, international criminal law, cyberspace, economic and private international law issues, and public health. Here I am with Chen Guangcheng, the blind Chinese dissident with whom I spent a number of days in Beijing, and here he is in his apartment at NYU.

The most challenging issues concern the fallout of September 11th, which is now nearly thirteen years ago. So, in my capacity as Legal Adviser at the State Department, I played a number of roles. I mentioned in the introduction to Dean Scharf's book that I was a managing partner of a law firm of about 200 lawyers, about 350 people total. I was the general counsel to Secretary Clinton. It is like being the general counsel of any government agency--we buy buildings, but they are in Kabul. We get visas, but in Baghdad.

I was the internal conflict manager. I was the internal conflict manager in the department for a far-flung department as Ambassador Hodges knows. A unique role of the Legal Adviser is to be the designated spokesperson or conscience of the U.S. government on international law.

If the U.S. is doing something that speaks to the issue of international law, I think it is the duty of the Legal Adviser to explain why we think the position is legal, and then, finally, if we get sued in any forum, whether in an international court or in a domestic court, I am the designated defender, or I was the designated defender.

I was Of Counsel on numerous Supreme Court briefs, and I also appeared and argued in several different international tribunals. So what are some things that I find, as I have now left, that people don't fully grasp?

By the way, here is a picture of my brother Howard, who is the Assistant Secretary of Health and Human Services. He is the highest-ranking public health official in America. My mother loves the picture because it looks like President Obama works for us.

The inference is you are not the only lawyer. As I said, in the State Department, there are over 200 lawyers. At the Defense Department, how many lawyers do you think there are? Can anyone guess? How about 17,000; the Justice Department, probably about 10,000 to 15,000 lawyers; Treasury, National Security Council, CIA, Director of National Intelligence, Homeland Security.

So a U.S. government condition has to be brokered between all of these agencies, not to mention the White House Counsel's office and the National Security Council's lawyer's office. One issue, as academics often say, is that the legal opinion of the government stopped where it got interested, and the short answer is, that's where they stopped agreeing.

What they didn't say is because they couldn't get an agreement on the position. So they just stated what they agreed upon and kept moving forward.

Secondly, and this may be obvious, you are not your own client. When you are a professor, you can just say whatever you think is right, but if Hillary Clinton is your client, she is pretty smart, and if she works for Barack Obama, he is pretty smart, and they are both lawyers themselves.

So the question is not what you think is the right thing to do lawfully; the question is whether what your client wants to do is legally available to them or not. So you can say that that is legally available; you can say that it is legally unavailable. For example, I think torture is legally unavailable as an option or, what is sometimes the case, in cases you say it is lawful, but it is lawful as a matter of policy.

And here is an incredible thing. I wrote a lot of books and articles. The precedent that you follow is not what you said in your private capacity. They don't care what Harold Koh wrote in a footnote when he was coming up for tenure at age twenty-nine. What they care about is the opinions of the Office of the Legal Adviser, which have gone back since 1848.

And when the people in my office looked at the precedents of the office, they looked to the precedents of the Office of the Legal Adviser, which is as it should be, because after all, where has more thought gone in: an opinion that has been brokered with thousands of other lawyers in the government on matters of life and death after a career in international law, or something you threw into an article in a footnote to complete a tenured piece?

Now, you have many roles as I have said. And perhaps most important, you must play the hand you are dealt. You don't get to choose.

There is a favorite story about the two guys from Galway who are walking down the road. I say this because St. Patrick's Day was yesterday, and my wife is Irish. And the one guy says to the other, "How do you get to Dublin?"

And the first guy goes, "You know, I wouldn't start from here."

So they said to me, "Would you like to be Legal Adviser in a time of peace and prosperity, or instead, would you rather be the Legal Adviser during three wars--Afghanistan, Iraq, and against Al-Qaeda, Taliban, and associated forces--in the worst economic crisis since the Depression?" And then, you move on to natural disasters in places like Haiti and Fukushima, and then throw into the mix the release of millions of documents in Wikileaks, et cetera. And then add to it the most political environment in American history, which has created this set of deadlock, and you might say, "No, I wouldn't start from here."

But you don't get to choose. You play the hand you are dealt, and I analogize to people who do criminal law. You could, over the course of a long career, be an expert on criminal law. Sometimes you do criminal defense work; sometimes you do prosecutions; sometimes you are a judge; sometimes you are a professor.

You are always doing the same body of law, but you are going to emphasize different things, depending on what role you are in. So you are not going to emphasize the same things if you are a white collar defense lawyer than if you are a prosecutor. That doesn't mean you are inconsistent; it just means that you are playing a different role with the same body of law.

So I found this to be an interesting challenge. I consider myself in my lifetime to have the exact same commitments with different roles. I am a man of peace, I think. I have spent my life teaching international law. I believe I am a defender of human rights, and I happened to be for four years a lawyer for a nation at war, and I tried to do that to the best of my ability. It was not easy. It was in some ways a relief to return to the academic world where I can say just what I want and nobody cares.

But I think that's because sometimes I am asked, as a human rights lawyer, how do I defend drones? And the answer is pretty easy. I think all torture is illegal no matter how it is used. I don't think the President can be the torturer-in-chief. But it is the very nature of the laws of war, which is called international humanitarian law, that some killing is lawful if it is done in the context of the laws of war.

You may not like it, but if you were the lawyer for the U.S. government, it is your inescapable duty to draw a difficult line between lawful and unlawful, killing those who do or do not save innocent lives.

And you have to defend those lines. It is much better to have people that care about the rule of law and human rights than people who don't care.

There is a baseball manager, who once said when he was getting flack for a decision he made, "That's okay over there. Their job is to say stuff over there. My job is to do stuff." And I would encourage everybody here to take their time in the government because there is a long, long way from a good idea to actually getting it done.

Now, obviously 9/11 changed our lives. It was itself a grotesque human rights violation: 3,000 innocent people getting killed for going to work. It signaled a new kind of war between a terrorist network that crosses borders and whose goal has been essentially to attack civilian targets and major western countries.

It demanded a strong response, but one that was also respectful of human rights. It is combined in a blog that I now write in the idea of "just security"--not just security but a just security in which law is an important piece. Not "lawfare" as it is sometimes dismissed by some, but in fact, a way of thinking about how to defend our human rights while not making the 9/11 era the new...

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