We Respond

On April 12, 2015, the student-organizers of the Statement of No Confidence in Harold Koh drafted the following letter in response to faculty intimidation:

To Our Classmates and Members of the NYU Community:

“We do not kill our cattle the way the US is killing humans in Waziristan with drones.”      – Rafiq ur Rehman

In the fall of 2013, Rafiq ur Rehman traveled with his 13-year-old son, Zubair, and 9-year-old daughter, Nabila, from their small village in North Waziristan to Capitol Hill. Their purpose in making this long and painful trek was simple: to appeal to the hearts of U.S. lawmakers by sharing stories of the carnage wrought upon their community and upon their family by U.S. drone strikes. In 2012, a U.S. drone strike had killed Rafiq’s elderly mother and severely wounded two of his young children.

Only five members of Congress showed up.

The suffering of thousands of individuals like Rafiq, Zubair, and Nabila, moved a few of us to author a Statement of No Confidence in Harold H. Koh. The Statement is fairly simple. It argues that due to Mr. Koh’s role as a key legal architect of the Obama administration’s targeted killing program, a program that violates International Human Rights Law, the Law School should not have hired him to teach that particular body of law. The petition extensively documents the factual basis for our position—and echoes the concerns of other students, academics, and human rights activists.

The gravity of targeted killings via drones and the factual basis upon which we built our petition warranted this expression of disaffection. Academic institutions, after all, are supposed to be places for honest and critical debates. At times, we have known NYU Law to be such a place—that is, a setting where compassionate and thoughtful people confront, rather than dismiss uncomfortable facts.

While we welcomed disagreement with the petition, we never fathomed that some faculty and administrators would, intentionally or not, work hard to quash our expression of dissent and intimidate numerous students. Professor Ryan Goodman, for instance, emailed every individual signatory of the petition, including some of his own students and advisees, and urged them to withdraw their support for the Statement. Withdrawal, he stated, “will reflect well on us as a community” [Goodman Letter].  Due to the power imbalances between students and faculty, we find his request inappropriate.

Stephen Bright, meanwhile, a Yale Law professor and known anti-death penalty lawyer, sent a disparaging email to his former intern, an organizer of the petition and an aspiring anti-death penalty lawyer, following repeated phone calls. He asked her whether she didn’t have better things to do with her time, and later claimed that the petition arose out of ignorance and inexperience. Concerning our corporate colleagues who signed the petition, Mr. Bright asked, “Does someone who is going to a firm to make hundreds of thousands of dollars a year representing corporations [have] any position to express a lack of confidence in Harold Koh?” [Bright Letter] Finally, another student was told that s/he was not welcome at Human Rights First for an internship since the organization held Harold Koh in high regard and was aware of the student’s signature on the petition.[1]

Rather than a trial of the Obama administration’s targeted killing program, and the distortion of Human Rights Law that it represents, what we have seen unfolding over the past few weeks is the trial of students, mostly women and students of color, who have been dismissed as “naïve” and maligned as “smearers.” There has been no acknowledgement of the concern for human life that prompted the petition, or any acknowledgement that the more than 260 supporters of the students’ Statement include lawyers, students, scholars and pacifists from all over the globe.

Figuring prominently in this trial is Dean Trevor Morrison, who preemptively announced his verdict prior to meeting with the authors of the recent CoLR Statement: “[allegations of intimidation] are unfounded.” Ironically, the Dean himself, in his first-year constitutional law class, had described the petition as “smear,” “wholly inaccurate” and, once again, urged students to withhold support. Two of his students did, in fact, withdraw their signatures from the petition despite privately expressing agreement with its merits.

Soon after, the Dean initiated a meeting with the organizers of the petition, ostensibly for the purpose of making our upcoming event “productive.” In the process, he called our public letters “vitriol unseen in the law school” and accused us of “inflicting wounds that will not heal.” His words, uttered to three students of color, two of whom are of South Asian descent, revealed a painful truth: the wounds inflicted upon the egos of the powerful are recognized and defended, while the wounds of Rafiq, Zubair, Nabila and thousands of unnamed others fail to register—not in our university discourse or in the government’s civilian casualty count. This, more than anything else, illustrates what this petition aims to counter and why it is so important.

For all that has been said by some members of the faculty and administration, we have been saddened by the silences prevailing in their responses. None of the thousands of people assassinated by U.S. drones are mentioned—not once. There has been no questioning of the “Drone War’s” legitimacy or meaningful engagement with our concern that Mr. Koh did in fact provide the legal rationale and cover for this program. There has been no reflection upon the relationship between state-sponsored violence abroad and state-sponsored violence here at home, in places like Ferguson, North Charleston, and New York. And there has been little concern with human rights becoming a field that legitimizes U.S. global hegemony by masking its questionable interference in the social and political structures of other nations.

Indeed, the silences do not stop there. Neither the facts nor the sources that we extensively cite and upon which we base our critique, were genuinely examined. Rather, they were largely dismissed. Meanwhile, we have been accused of leveling attacks that are not “evidence-based” and of launching nothing more than a “smear” campaign. We wonder: if we have gotten the facts wrong about Mr. Koh’s well-documented role in shaping and defending the U.S. government’s targeted killing program, why haven’t the true facts surfaced? Why are we asked to blindly take the word of his friends, who speak of past actions that have no bearing on his role in this particular violation?

We have sought to understand the troubling responses that we have received from some faculty and administrators. It occurs to us that those in government who defend drone attacks in Pakistan, Yemen, Somalia, and now the Philippines, or who justify wars whether in Iraq or Libya, expect to waltz comfortably through the revolving door from government back into the academy, while demanding silence concerning these crimes.

We desire to break these silences in order to demand accountability and to express our outrage with the devaluation of human life that the U.S. extrajudicial killing program reflects.

The Undersigned,

[1] For these reasons, the names of NYU Law student signatories have been made temporarily unavailable for public viewing.

*                    *                    *

On March 10, 2015, the student-organizers released the following statement:

To The Members of The NYU Law Community:

As the Statement of No Confidence in Harold Koh makes clear, U.S. drones have claimed thousands of lives across the globe. We reiterate the fundamental point that lies at the heart of our petition: the U.S. government’s extrajudicial killing program, for which Mr. Koh was a key legal architect and advocate, is immoral and violates the applicable international human rights and humanitarian laws governing the use of lethal force.

In light of the profound human costs that the drone program has exacted, we find it regrettable that Professor Posner mischaracterizes our petition and dismisses the serious concerns raised therein. Nowhere in the petition do we argue that there are no circumstances under which drones can be lawfully deployed. Rather, we expressly state that our concern is with the U.S. drone program’s profound human costs and with its illegality under international human rights and humanitarian law. There is powerful objective evidence to which we cite in support of our critique, which Professor Posner entirely fails to address (See Posner Letter).

We disagree with Professor Posner’s belief that “we need more Harold Koh’s in government, not fewer.” 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 it serves 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.

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.

The costs of remaining silent are simply too high.

We live in a time when the state-sanctioned murder of black, brown and poor people within and outside of our borders is normalized. Unfortunately, even the most prominent and well- respected lawyers in the fields of international law and human rights have contributed to this normalization by shielding the architects of these policies from accountability and thereby defending the powerful against the powerless. We need to be courageous enough to say, “No more.”

For these reasons, we urge students, faculty, staff, and community members to continue raising their voices to protest NYU Law’s hiring of Harold Koh as a professor of International Human Rights Law.

The Undersigned,

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