[Marxism] Controversy Swirls Around NYU Law Professor Involved in Obama’s Drone Program

A.R. G amithrgupta at gmail.com
Tue Apr 7 13:51:27 MDT 2015


Harold Koh, the former legal adviser to the U.S. Department of State, is
getting a chilly reception from some law students and alumni of New York
University Law School, where he is currently a visiting scholar.

While working for the Obama administration, Koh was the most public legal
the president’s drone strike program. Last month, a petition
circulated at NYU Law—one of the top law schools in the country—that called
Koh’s teaching of international human rights law for the 2014-1015 academic
year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to
an illegal and inhumane program of extrajudicial assassinations and
potential war crimes, we find his presence at NYU Law and, in particular,
as a professor of International Human Rights Law, to be unacceptable,” the
petition reads.

The petition has drawn around 200 signatures, but it has stirred a much
bigger controversy on campus than the numbers might suggest.

Koh himself dismisses the description of himself in the petition as a
fabrication. “Pretty much the whole thing” is false, he said, and declined
to elaborate. “I don’t really think I should be in a position to make the
case for myself when others have adequately done that.”

Indeed, within moments of *Newsweek*’s first phone conversation with Koh, a
series of defenders called to speak up for him. “[Koh] let me know the
article was happening,” said Seth Silverman, a third-year law student in
Koh’s human rights law class, who called *Newsweek*. “I don’t agree with
the way they categorized the role that he played.”

In the few weeks prior, the online petition had gathered dozens of
signatures from students, alumni, several lawyer and activist groups, law
students at other universities and faculty at NYU (though no NYU Law
faculty have signed). But just as quickly, several scholars and prominent
human rights lawyers came to Koh’s vocal defense, and called for students
to remove their names from the document. Several suggested that the group
of students who authored the petition were misguided in their approach and
wholly incorrect in their characterization of Koh as a “key legal
architect” of the U.S. drone program.

“I urge those who are considering signing it to know the real story about
Harold Koh and urge those who already have signed it to reconsider,”
Michael Posner, a prominent lawyer and former human rights diplomat for the
State Department who now teaches at NYU’s Stern business school, wrote in a
lengthy condemnation of the petition sent to the NYU Law email listserv.
(He, too, rang *Newsweek*’s office shortly after hearing a reporter was
inquiring about the petition.) Koh, wrote Posner, was “our government’s
strongest and most effective advocate” for drone policies “rooted in the
rule of law and human rights principles,” and “deserves a medal” for his
service, “not a statement of no confidence.”

As *Newsweek* reported in 2012
Koh was a fierce advocate while in office for more transparency about the
CIA’s targeted-killing program. Former*Newsweek* managing editor Daniel
Klaidman wrote in his book, *Kill or Capture
that Koh worked to develop clear rules for drone strikes that would confine
U.S. actions to compliance with international law. He was also central in
the effort to urge Obama to refocus on closing the Guantanamo Bay detention
facility, and spoke directly to the president on the matter, Klaidman

But critics of Koh point to what they see as a fundamental change of heart
by the former Yale Law dean, who once called President George W. Bush the
nation’s “torturer in chief,” and told *The New York Times*
December 2002 that compiling “kill lists” for targeted execution appeared
to be a violation of the U.S.’s ban on assassination.

In 2010, within one year at his appointment as legal adviser, Koh gave a
speech <http://www.state.gov/s/l/releases/remarks/139119.htm> defending the
procedures involved with placing names on a list for lethal force as
“extremely robust.” Koh went on to be “the only administration official who
spoke on the record—in public forums—about the legal basis for the
program,” according to a profile of him that ran in the Daily Beast

“Why did he get involved? It’s quite inconsistent with his general work
before. Koh’s claim to fame as a law professor has to do with the notion
that the way international law and human rights become effective is through
internalization in people like the legal adviser at the State Department,”
Bruce Ackerman, a Yale law professor, told the Daily Beast at the time. “To
put it gently, targeted killings are not acceptable under international

For Marilyn Young, a professor of political history at NYU, that made her
decision to sign the petition simple.

“I think Koh was and is a great supporter of international law and human
rights. I respected him enormously and was very pleased when he joined the
Obama administration," she said. "So I was very disappointed when he spoke
out for and defended the use of drones. I think it is a violation of the
laws of war and human rights, which is why I signed.”

Meanwhile, the backlash to the petition, some students say, amounts to
“intimidation,” such that the names of the 35 law students who signed are
now “hidden” from the public petition document until after final exam
grades are issued “in order for NYU Law students not to suffer further
retaliation,” according to a note on the document.

Trevor Morrison, the dean of NYU Law school, responded to the allegations
of intimidation in a school-wide email on Monday.

“Although I accept that these allegations of intimidation are made in good
faith, I believe they are unfounded and the product of miscommunication and
misunderstanding,” he wrote. “Some members of our faculty have views about
Professor Koh and his service in government that are just as deeply held as
those expressed by the supporters of the statement against him.”

A few weeks prior, Morrison held his constitutional law class of first-year
law students for a few minutes after class to tell them that the petition
was “wholly inaccurate” and a departure from an “evidence-based” campus,
according to a student in the class who asked not to be named. The class
had been assigned to prepare for a discussion of Koh’s State Department
testimony the following week.

Morrison, reached for comment about the petition, said in an email that NYU
Law is “a community that prizes academic freedom and encourages debate
among our students, who care deeply about the important issues of the day.
That discourse is most productive when—to paraphrase the late Senator
Moynihan—we argue our own opinions but not our own facts.”

Meanwhile, Stephen Bright, the president of the Southern Center for Human
Rights and a Yale Law professor, emailed NYU Law student Amanda Bass, one
of the organizers of the petition, urging her to reconsider whether the
petition was a good use of her time. Bass worked as an intern at the
Southern Center last summer.

“The people who have long labored in the trenches fighting for human rights
all over the world have the utmost respect for Harold. Why attack him?
Aren’t there more constructive things to do? Wouldn’t it do more good to
help some of the many people with desperate needs for legal assistance than
tearing down a good man who has lived a good life and helped more people
than most of us will be able to help in our lives? It’s not fair and it’s
not right, and I hope that you and others will reconsider whether this is
really the battle you want to fight,” Bright wrote to Bass.

Bass says she sees the email, sent at 12:37 a.m. on a Thursday last month,
as a form of intimidation from a former employer, and an attempt to “shift
the lense” of the petition away from its narrow focus: The fact that Koh
publicly defended the drone program on a number of occasions. The argument
made by many of the letters defending Koh is that he was a champion for
human rights-based approach to drones while in government, and although he
may not have won every battle for that cause, he nonetheless tried. In
short, the drone program would have been worse without him. But for the
petitioners, that’s not good enough.

“For us, we would actually like to see a model for human rights lawyering
that essentially highlights one resigning rather than continuing to sit at
the table and advocate for it,” Bass says. “Otherwise human rights lawyers
can become complicit, and human rights can become an extension of
state-sponsored violence.”

Bright tells *Newsweek *that the email to Bass “certainly wasn’t intended”
to intimidate, and was meant only to remind Bass of the many human rights
achievements of Koh’s career.

“I think Harold Koh is just an extraordinary human being ... I don’t know
how you could ever judge people on one aspect of a very rich career, he
said. “He did some pretty miraculous things while he was [at the State
Department]. I don’t see how you can try to tar him for the drone program.
The president was very committed to drones. There’s no getting around that.
Only a law student who hasn’t been out in the real world could think that.”

Besides the 35 NYU Law students who have signed, the international
committee of the National Lawyer’s Guild, several other groups, 16 current
and former NYU faculty members and 13 NYU Law alumni have as well.

“I think a professorship at a law school is not a right. It’s a privilege,
and a job. It’s not like Koh is being silenced [had he not been] hired. I
think it’s great that the students who put this together are mobilizing. I
don’t see that as censorship ... there’s no free speech issue here,” says
Chase Madar, an attorney and journalist who graduated NYU Law in 2004.
Madar recently wrote a book
Chelsea Manning, the Army soldier in prison for leaking classified
information. “I have school spirit about NYU Law school and I want what’s
best for it. I would much prefer that they hired someone else.”

Madar is unmoved by the defenses of Koh written by his colleagues,
especially the statements that Koh was working from the inside to sculpt a
more humanitarian drone program even as he defended it.

“I’ve heard that argument, but I really don’t care what his secret thoughts
are,” Madar says. “If he really thought they were a bad thing, why did he
get up before the American Society of International Law in the basement of
the Ritz Carlton and lay out a defense of drone strikes that have been
damaging to foreign life and American policy?”

“That’s sweet that they’re defending a fellow professor,” Madar adds.
“That’s fine. That doesn’t mean alumni or students have to.”

Students launching petitions against professors and speakers is nothing
new. Last year, Rutgers students protested
<http://www.cnn.com/2014/05/04/us/condoleeza-rice-rutgers-protests/> having
former U.S. secretary of state Condoleezza Rice speak at their graduation,
over her connection to the Iraq War and torture under George W. Bush’s
administration. At the University of California Berkeley School of Law last
summer, students, alumni and lawyers signed a petition
John Yoo, a co-author of the so-called “Torture Memos” penned under Bush.
Yoo had recently been endowed as faculty chair at the law school.

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