We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people.
–Martin Luther King, Jr., “Letter From Birmingham Jail,” April 16, 1963.
We live in a time when the state-sanctioned murder of black, brown and poor people within and outside U.S. borders has been normalized, in part because of our collective apathy. Even the most prominent and well-respected lawyers in the fields of international law and human rights have contributed to this normalization, whether directly as state bureaucrats, or indirectly by shielding the architects of wars from accountability and thereby defending the powerful against the powerless.
As law students committed to human and constitutional rights, we decided to break the silence inside our own institution and professional field. Aware of Mr. Koh’s role as a key legal architect and defender of the Obama administration’s drone program, we were troubled to learn that Mr. Koh had been appointed to teach International Human Rights Law at NYU. In his role as State Department Legal Advisor (2009-2013), Mr. Koh helped to conceive and publicly defended President Obama’s drone policies. He also sat behind a desk and decided, based upon questionable U.S. intelligence, who on this earth ought to live and who ought to die.
The most fundamental human right is the right to life. We therefore asked ourselves a set of basic questions: How can an acclaimed and self-proclaimed human rights lawyer and scholar work as an enabler of violence perpetuated by a highly belligerent state? How can an advocate of the inalienable rights of people facilitate extrajudicial assassinations and justify wars? How is such an individual morally and professionally qualified to teach a course on human rights? What does it say about the field of human rights that such a person is held in high esteem as a human rights icon? Is a similar phenomenon occurring in other academic fields? Would Michelle Alexander, Charles J. Ogletree, Jr., or Lani Guinier assist the Ferguson Police Department in perfecting its racial profiling of residents? If so, would they be qualified to teach a course about racial justice? And would the politicized students of critical race theory and racial justice be quiet?
We don’t believe so, and that is why we are here to say “enough.”
It has not escaped our attention that Mr. Koh is regarded as one of the most respected and powerful international lawyers of our time. This does not deter us from our commitment to holding accountable members of our community who, like Mr. Koh, seem to have traded fealty to international law for a ringside seat at the table, at the cost of thousands of lives.
We disagree with the belief espoused by NYU Law Professor Michael Posner that “we need more Harold Koh’s in government, not fewer” (Posner Letter). Rather, we believe that we need more principled people in government. We need people who will not advocate, as Mr. Koh has, the position that “[J]ustice for enemies ‘can be delivered through trials. Drones can also deliver.’” We need people in government who won’t make paternalistic and Orientalist generalizations about Middle Easterners by calling the U.S. diplomatic withdrawal from the Middle East in 2001 “akin to removing adult supervision from a playground populated by warring switchblade gangs.” (Koh, On American Exceptionalism, 55 Stan. L. Rev. 1479, 1490-91, 2003). We need people in government who are principled enough to resign when the government they serve pursues an immoral and illegal path that jeopardizes innocent lives, rather than defend this pursuit. We need human rights lawyers in government who will refuse to sit behind a desk and make decisions based on questionable U.S. intelligence about who lives and who dies, and then compare such decisions to the law school admission process.
In an age when Congress and the Courts have abdicated their roles to hold executive branch officials, like Mr. Koh, accountable for this inhumane killing program, it was important for us to raise our voices in order to demand some kind of public accountability.
Frequently Asked Questions
Q: What do you all want?
A: We want to express our concern about the NYU Law School’s decision to hire Harold Koh as a visiting professor of International Human Rights Law for the 2014–15 academic year. Harold Koh played a key role in developing the Obama administration’s illegal and inhumane drone program, and continued to defend the program even after he left the State Department in January 2013.
Q: Do you want Harold Koh to be fired?
A: We neither desire to nor we can fire Harold Koh. He currently teaches a course on International Human Rights Law here at NYU and we have no intention of disrupting his teaching. We do, however, desire to raise awareness about his direct role in shaping and defending the U.S. drone program, which we believe is inconsistent with human rights. It is also our hope that those who dedicate their lives to the legal profession and, particularly, law students who wish to work on behalf of human rights, will examine more critically the role that liberal human rights lawyers play in government.
Q: But Harold Koh is regarded as an international law icon and has done great work to advocate for human rights. Why are you criticizing him?
A: While it may be the case that Harold Koh has done admirable work on behalf of human rights, we remain committed to holding accountable members of our community, including liberal lawyers, who defend and enable the human rights violating actions of our government.
Q: Lawyers sometimes have to defend people and positions that they don’t believe in. Isn’t that what Harold Koh was doing with respect to drones?
A: Harold Koh defended the U.S. drone program both as State Department Legal Advisor and after he left his government position. Yet, even if Harold Koh defended a program in which he did not believe, we find this to be unprincipled action on the part of a human rights lawyer, particularly when thousands of innocent lives are at stake.
Q: What about academic freedom? Isn’t this Statement of No Confidence suppressing free expression?
A: We are not condemning Harold Koh’s thoughts about the U.S. drone program. Rather, we are condemning Harold Koh’s actions as an architect and enabler of an illegal and inhuman killing program, which has had devastating human costs around the world.
Q: But Harold Koh has been regarded as a leftist among liberals. Why are your critiques focused on him?
A: This question requires defining “the Left”. We first need to acknowledge that neither in the U.S. nor in any country with a politicized civil society, do social democrats stand for the Left. Undoubtedly, they have acted as stronger supporters of economic and social equality than the GOP, the Tea Party and similar parties whether in the U.S. or abroad. Even still, for any good student of U.S. history, it won’t be an easy task to argue that the Democratic Party, particularly in its latest incarnations, has embodied the aspirations of organized peace, labor, feminist, environmentalist, and LGBTQ activists.
We believe that the unity of the more progressive forces in the U.S. won’t occur as long we keep ourselves active in a conspiracy of silence in regard to the Democratic Party and its liberal functionaries. Our reluctance to criticize the liberal class–who remain loyal to and work for the U.S. as an empire without any regard for international human rights conventions and laws– undermines the very possibility of a true and widespread progressive force in the US.