Koh’s “Other” Record

Work–in–Progress [Please feel free to contact and help us expand Harold Koh’s lesser-known résumé]

In response to Harold Koh’s cronies, the “human rights hawks”, who dismissed our petition and attempted to silence our dissent, we have initiated a compilation of Koh’s lesser-known actions and utterances, which further call into question his work for human rights. For a complete list of Koh’s closest adulators, many of whom are staunch supporters of Israel’s colonial occupation of Palestine and current/former servants of the White House whether under Republican or Democratic presidents, please visit the “Open Letter In Support of Harold Koh.”

Harold Hongju Koh

Yale Law School
P.O. Box 208215
New Haven, CT 06520

  • On March 10, the Guardian reporter Jon Swaine writes that:

    Hillary Clinton’s most senior legal adviser while she was secretary of state has refused to disclose advice he gave her on the legality of operating a private email system, arguing that the secrecy of their discussion is protected by law.

    Harold Koh, who was legal adviser of the Department of State between 2009 and 2013, declined to discuss “advice I gave as a lawyer to my client” as Clinton prepared to address the controversy at a press conference in New York on Tuesday.

    “This is attorney-client privilege, I can’t answer that question,” Koh said, during a brief telephone interview with the Guardian. “You know, what as a lawyer you say to your client … I can’t answer that question.”

    In response to Koh, Mr. Swaine interviewed Edna Selan Epstein, a retired prosecutor and attorney and author of the American Bar Association’s authoritative guide on attorney-client privilege.” In Ms. Epstein’s own words:

    “It is not as clearcut as he suggests,” adding that Koh’s defence could be challenged in court.

    “The question is whether his real client is the American public or the government official,” Epstein said on Monday. “There is not a clear statute or large body of law on it, and there were cases, particularly during the Bill Clinton era, where privilege was not upheld.”

 Source: Jon Swaine, “Clinton’s Former Legal Adviser Deflects Questions About Private Email Account,” The Guardian, 10 March 2015.

  • June 2011: Harold Koh, the US State Department Legal Advisor, argued against Jeh Johnson (then-Pentagon General Counsel) and Caroline Krass (then-acting head of the DOJ’s Office of Legal Counsel) that the United States’ actions in Libya—dropping bombs and firing drones—did not constitute “hostilities” within the meaning of the War Powers Resolution, which allowed the destruction of Libya to continue without further Congressional authorization. Johnson and Krass, meanwhile, had argued, in contrast to Koh, that U.S. actions in Libya did constitute “hostilities” and that the continued bombardment would violate the War Powers Resolution. Source: Charlie Savage, 2 Top Lawyers Lost to Obama in Libya War Policy Debate, The New York Times, June 17, 2011.
  • June 29, 2011. Reuters reports that the “State Department legal adviser Harold Koh urged U.S. lawmakers to nonetheless vote for a resolution authorizing the U.S. role in the NATO-led mission.” Reuters also unveiled Koh’s claims, in his own words: “The U.S. intervention was not extensive enough in ‘nature, scope and duration’ to require a congressional declaration of war under Article One of the U.S. constitution.” “Nor did it constitute the kind of hostilities envisioned by the War Powers Resolution […] [t]his was because there were limits to the mission as well as the exposure of U.S. armed forces. The risk of escalation and the military means used by the United States were also limited, he said. The violence that U.S. armed forces had directly inflicted or facilitated after the handoff to NATO has been ‘modest’,” he said. Source: Reuters, Harold Koh, Top Obama lawyer, Defends Libya Operation Over Congress’ War Powers Objections, Huffington Post, June 28, 2011.
  • In 2011, the survivors of a 1997 massacre by Mexican paramilitary groups sued former Mexican President Ernesto Zedillo alleging that he was responsible for the attack. At the time, Zedillo was a scholar at Yale University. “The State Department said Mr. Zedillo should have immunity because the suit, filed in federal court in Connecticut, concerned actions taken in his official capacity … ‘The complaint is predicated on former President Zedillo’s actions as president, not private conduct,’ Harold Hongju Koh, a State Department legal adviser and a professor at Yale Law School, wrote in a letter accompanying the filing. He said that the complaint’s ‘generalized allegations’ did not give the department any reason to rule differently.” Source: Randal C. Archibold, S. Moves to Grant Former Mexican President Immunity in Suit, The New York Times, Sept. 8, 2012.
  • Harold Koh “had set his own legal standard to justify the targeted killing of a U.S. citizen: He felt that Awlaki would have to be shown to be ‘evil,’ with iron-clad intelligence to prove it. After absorbing the chilling intel, which included multiple bombing plots and elaborate plans to attack Americans with ricin and cyanide, Koh concluded that Awlaki was not just evil; he was ‘satanic.’” See Daniel Klaidman, “John Brennan and the Drone Consensus,’ The Daily Beast, 9 February 2013; and Jeremy Scahill, Dirty Wars: The World is a Battlefield (2013), p. 371.
  • On June 15, 2010, Mr. Koh reported the following during a special briefing on the outcome of the ICC Conference on the Crime of Aggression:

“We think that . . . the outcome protected our vital interests. The court cannot exercise jurisdiction over the crime of aggression without a further decision to take place sometime after January 1st, 2017. The [ICC] prosecutor cannot charge nationals of non-state parties, including U.S. nationals, with a crime of aggression. No U.S. national can be prosecuted for aggression so long as the U.S. remains a non–state party. And if we were to become a state party, we’d still have the option to opt out from having our nationals prosecuted for aggression. So we ensure total protection for our Armed Forces and other U.S. nationals going forward.”

“If the Security Council did not make a determination that aggression had occurred, the prosecutor would have to offer a reasonable basis for investigating the crime under a definition that’s been clarified by understandings we suggested. The prosecution would have to get a majority vote of six judges of the court’s pretrial division. The Security Council would still, at that point, have the authority to stop the prosecution with a red light Chapter 7 resolution disapproving the resolution. And as I said, the channel would not apply to nationals of non–state parties or any non-consenting state party who opted out.”

“The big picture going forward, I think we should keep in mind, is that as the country of Nuremberg prosecutor Justice Jackson, we are the only country that has successfully prosecuted the crime of aggression at Nuremberg and Tokyo. Of course, we do not commit aggression and the chances are extremely remote that a prosecution on this crime will, at some point in the distant future, affect us negatively.”

“So to paraphrase Churchill, this is not the end, it was not the beginning of the end, but it did feel like the end of the beginning of the U.S’s 12-year relationship with this court. After 12 years, I think we have reset the default on the U.S. relationship with the court from hostility to positive engagement. In this case, principal engagement worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.”

Source: “US Engagement With the ICC and the Outcome of the Recently Conducted Review Conference,” Special Briefing by Harold Hongju Koh, Legal Advisor U.S. Department of State, and Stephen J. Rapp, Ambassador-at-Large for War Crimes Issues, Washington, DC, June 15, 2010.

  • On November 5, 2010, Koh was one of the 30 officials representing the United States during a meeting of the UN Human Rights Council in Geneva. As journalist Mark Tran from The Guardian reports, the US delegation “was forced to listen to repeated calls for the US to put an end to the death penalty.” Koh then defended the U.S. by claiming that “capital punishment was a subject of vigorous debate and litigation in the US and was applied for in only the most serious crimes.” He resumed his statement on the death penalty by reiterating its legality. In his own words, “International human rights law does not bar it per se.” Source: Mark Tran, “UN Human Rights Council Urges US to End Death Penalty,” The Guardian, Nov. 5, 2010.
  • On that same occasion, namely the UN Human Rights Council meeting of November 5, 2010, Koh “defended the use of unmanned drone aircraft to kill ‘high value targets’ on the Afghanistan-Pakistan border and in Yemen.” In Koh’s own words:
      “Our targeting practice complies with all human rights law,” he said. “Operations are conducted in conformity with rule of law principles. It has been long legitimate to target enemy leaders and force is directed only at lawful targets.”

Source: Mark Tran, “UN Human Rights Council Urges US to End Death Penalty,” The Guardian, Nov. 5, 2010.

  • November 26, 2010: WikiLeaks founder Julian Assange wrote to U.S. Ambassador Louis B. Susman requesting that the government “privately nominate any specific instances (record numbers or names) where it considers the publication of information would put individual persons at significant risk of harm that has not already been addressed.” Assange expressed WikiLeaks’ willingness to “respect the confidentiality of advice provided by the United States Government and is prepared to consider any such submissions made without delay.” Source: Letters between Wikileaks and the U.S. Government, the New York Times.
  • November 27, 2010: Harold Koh responded with a letter addressed to both Mr. Assange and to Mr. Assange’s lawyer, Jennifer Robinson. In it, he imputed to them both the “intention to again publish on your WikiLeaks site what you claim to be classified U.S. Government document” in violation of U.S. law. Source: Letters between Wikileaks and the U.S. Government, the New York Times. [click here to download a copy of Koh’s Letter to Ms. Robinson]
  • December 10, 2010: Gail Davidson, Founder of Lawyers’ Rights Watch Canada wrote to Secretary of State Hilary Clinton and Attorney General Eric Holder to express “alarm” by Harold Koh’s actions:

“LRWC is alarmed by actions of US State Department Legal Advisor Harold Hongju Koh that put British barrister Jennifer Robinson in jeopardy and interfere with the right of her client Julian Assange, to be represented.” […]

“Mr. Koh violated US and international standards when he wrongly identified Ms. Robinson’s with the allegations of criminal wrongdoing made by the US against her client.” […]

“Mr. Koh has demonstrated professional irresponsibility by publishing exaggerated and unsubstantiated allegations of serious criminal acts against Ms. Robinson and her client.”

Source: Gail Davidson, Statement linking lawyer Jennifer Robinson with her client Julian Assange violates advocacy rights, Dec. 10, 2010.

  • July 29, 2009: According to an internal government cable released by WikiLeaks:

“In a July 29 meeting with [Afghan] Attorney General [Muhamad Ishaq] Aloko, Legal Advisor Harold Hongju Koh and Deputy Ambassador Francis Ricciardone pressed Aloko on the release without trial of detainees transferred from Bagram and Guantanamo to Afghan custody, and convicted narco-traffickers. Koh had visited the Afghan National Detention Facility (ANDF), Pol-i-Charki, the Counternarcotics Justice Center, and Bagram before seeing Aloko. Koh reported that he has observed juvenile detainees as 13 yeas old being held in the ANDF, an adult facility, and urged their immediate transfer to a juvenile detention center. On pretrial pardons, Koh also told Aloko that he would have difficulty reporting to his supervisors in the USG that he had confidence in the Afghan government who was releasing dangerous individuals into Afghan society without trial. […]

Ambassador Ricciardone pressed Aloko on why, contrary to explicit agreement, the GIRoA allowed 150 pre-trial releases from the ANDF, including the recent release without trial of Abdullah Shahab, nephew of anti-American Mujahideen leader Gulbuddin Hekmatyar […] Aloko argued that when U.S. transfers detainees to the GIRoA, the U.S.-provided evidence against some detainees is insufficient for prosecution, so he is sometimes left with no other choice than to release the detainee rather than let their cases take up time in already overburdened courts. Source: Afghanistan, Kabul to Secretary of State, Secret Kabul 002245, August 6, 2009; available thanks to Wikileaks. [PDF available here]

  • In the Summer of 2003, Harold Koh wrote an eulogy for Eugene V. Rostow. So who was Rostow? According to Godfrey Hogdson, the author of The Myth of American Exceptionalism (Yale, 2010), Rostow “was an opponent of arms limitation under President Ford, head of the arms control agency under President Reagan (1981-83), and in his 70s and 80s a champion of Israel and of the Likud party’s defiant policies.” “As early as the 1970s,” Hogdson writes for The Guardian, “Rostow was attacking Israel’s critics. He made himself useful to that country and especially to its US supporters by lending his prestige to a number of Israeli contentions, chiefly the proposition that there was no legal reason why Israel should not build West Bank settlements.” Yet none of what Hogdson reported in his own obituary of Rostow appeared in Koh’s piece. The following passages will unveil Koh’s “understanding” (or concealment) of Rostow:

Rushing to teach my morning class last November, I opened The New York Times and found Dean Rostow’s obituary. As I walked to the Law School, I thought of how much he had done for my family, for Yale, for the nation. As I began my lecture, I suddenly realized I was standing under Dean Rostow’s portrait. I looked up again at the man who had reminded us to be greater than ourselves. He sits, resplendent and regal in academic robes, with that twinkle I remember. It must have been painted around the time I first met him.

I paused and asked the class, “Do you know who this man is, and why he is so important?” And when they shook their heads, I told them Dean Rostow’s story. I told them about his courage, his humanity, and his vision. It just needed saying, that’s all.

Source: Godfrey Hogdson, “Eugene Rostow: Liberal Academic Lawyer Who Turned Sharply to the Right,” The Guardian, November 28, 2002; and Harold Koh, “In Memoriam: Dean Eugene V. Rostow,” Yale Law Report 16 (Summer 2003).

  • October 4, 2001. Professor Harold Koh delivered the Richard J. Childress Memorial Lecture at the Saint Louis University School of Law. During this presentation, Koh stated his personal opinion that the US should have participated in the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, South Africa). Yet he had his own proposal for how the US could have undermined and, at the same time, redirected the participants from paying attention to Israel and, particularly Zionism. In Koh’s own words:

Another failure to speak came at the recent World Conference Against Racism in Durban, South Africa, where Secretary of State Colin Powell declined to appear out of protest over the Conference’s scapegoating of Israel. Had he appeared, he could have used his speech-much as Warren Christopher did at the 1993 Vienna Conference on Human Rights and Hillary Clinton did at the 1995 Beijing Women’s Conference-to tell America’s story. He could have recounted the story of his own remarkable odyssey to become America’s first African-American Secretary of State as living proof of America’s sincere commitment to promoting racial equality. By taking the podium, he could not only have told the truth to those who wanted to use the Conference to assert that Zionism is racism, but also could have redirected the Conference agenda toward the real emerging global discrimination issues of the twenty-first century, such as caste discrimination, discrimination against refugees, workable affirmative action techniques and other efforts to give meaningful reparations for past discrimination.

Source: Harold Koh, “A United States Human Rights Policy For The 21st Century,” Saint Louis University Law Journal, vol. 46, no. 293 (2002), 309.

  • “As the US stepped up its bombing raids against Yugoslavia, Harold Koh, then assistant secretary of state for democracy, human rights, and labor, called the leaders of several US human rights groups to a hastily arranged meeting at his offices in Foggy Bottom. Koh started the session by telling the groups’ leaders, who included Amnesty International-USA’s head Dr. William Schulz, that he was sorry that the administration could not support the extradition of Pinochet. He stressed that while Madeleine Albright cared deeply about human rights matters, the Defense Department had quashed the idea. But, Koh said, there was good news. Albright had convinced the Defense Department and Clinton that human rights concerns should be the driving force behind the bombing of the Serbs. Koh said he hoped the human rights groups would enthusiastically support the mission and promised that if they did, Albright might even meet with them in person in the near future. Source: Alexander Cockburn & Jeffrey St. Clair, Those Incubator Babies, Once More?, Counterpunch, June 15, 1999.