Subject: Koh petition
I am writing to you all as law students who have signed the petition concerning the Statement of
no confidence in Professor Harold Koh.
First, I am writing to invite any of you who would like to have a conversation about your
concerns and about the substance of the Statement to speak with me. I am happy to meet with
people individually or in groups. And I assume that such conversations can have an incidental
benefit of helping to feed into and structure a public event.
Second, I have more that I would like to say, but for now I want to make sure you all receive a
full set of information about the nature of the claims against Professor Koh.
I should start by saying that you all have significant and understandable concerns about the use
of lethal force by the United States, including the U.S. drones program. Current practices are, in
important respects, still far from what international law requires and liberties and lives are being
lost in the meantime. At a minimum you, like me, demand that U.S. actions conform to a
demanding application of constitutional law and international law including humanitarian law
and human rights. As a member of the human rights community, I have criticized many post-9/11
actions of the U.S. government including during the time that Harold Koh served in the
administration.
The sad irony is that for people who signed the petition and for people like me, we may have had
no better friend and advocate in government than Harold Koh.
I can only hope that individuals who organized and signed the petition will reflect upon and
reconsider their actions in light of the fuller record. (I also hope the petition has a simple way for
individuals to remove their names from the list if they subsequently decide to dissent from it.)
The petition rests on a profound misunderstanding and mischaracterization of Professor Koh’s
service in public office. Over multiple decades, Professor Koh has established a career as
arguably the nation’s foremost human rights lawyer and scholar of his generation.
To be brief, I focus here on Professor Koh’s period as Legal Adviser of the Department of State
and on issues relevant to post-9/11 U.S. counterterrorism practices.
In testimony before the Senate Judiciary Committee in September 2008[1], Professor Koh
strongly signaled the views he would bring to the next administration if asked to serve. He
criticized abuses of governmental power in reaction to 9/11 and detailed the legal and policy
flaws of what he called “the infamous list [that] includes: Abu Ghraib; Guantanamo; torture and
cruel treatment of detainees; indefinite detention of ‘enemy combatants;’ military commissions;
warrantless government wiretapping and datamining; evasion of the Geneva Conventions and
international human rights treaties; excessive government secrecy and assertions of executive
privilege; attacks on the United Nations and its human rights bodies, including the International
Criminal Court; misleading of Congress; and the denial of habeas corpus … for suspected

 terrorist detainees on Guantanamo.” In his testimony, Koh also recommended that “as soon as
the new President takes office he should issue executive orders,” including to close Guantanamo,
end torture, and comply with the Geneva Conventions. As Gregory Johnsen notes[2], “two days
after Barack Obama took the oath of office on the balcony of the U.S. Capitol building, he put
Koh’s advice into action.”
What did Professor Koh then do once he joined the administration?
First, on human rights treaties, Koh utterly unsettled the administration by issuing a 56-page
memorandum concluding that the International Covenant on Civil and Political Rights must
apply to U.S. actions abroad and in situations of armed conflict. On his last day in office, he
issued a 90-page memo stating the same for the Convention Against Torture. The memos were
subsequently leaked to the New York Times,[3] and helped to change the course of the
administration’s position when it represented the United States in Geneva.
Second, as Jess Bravin documents in his book, the Obama administration’s decision to restart
military commissions faced a roadblock: “The principal obstacle was Harold Hongju Koh, the
State Department’s chief lawyer. As professor and dean of Yale Law School, Koh had been
perhaps the most influential international law scholar in the American academy.”[4] Bravin
explains that “Koh considered military commissions an affront to the rule of law … Koh did all
he could to derail it, persuading his boss, Secretary of State Hillary Rodham Clinton, that
resuming commissions trials would undermine international cooperation on counterterrorism
efforts.”
Secretary Clinton lost that battle, but Koh continued to work on the issue in a different form. In
May 2010, the Vancouver Sun[5] reported that “officials in the Obama administration demanded
a game-changing rule change for the Guantanamo Bay military tribunal that would have likely
scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr.” Those
officials wanted to strip the commissions of an offence that did not have a basis in international
law. The Vancouver Sun identified one person behind this effort: “Among those leading the
charge against the contested murder segment was Harold Koh.” This was not an issue with
limited effects only on the prosecution of Mr. Khadr. “Omission of the segment could have also
obliged prosecutors to trim or abandon "up to one-third" of its cases, according to one inside
estimate,” the Sun explained.
Third, when Koh lost the effort to prevent the commissions from restarting, Bravin writes that he
gained another concession: “to mollify Koh, the administration agreed to ask the Senate to ratify
agreements expanding protections under the Geneva Conventions, including one that had been
collecting dust since President Reagan signed it in 1987.”
Fourth, Daniel Klaidman’s book[6] details a pivotal moment in the administration’s decision to
refocus on closing Guantanamo when political expedience might have traded off that issue with
other concerns. At a meeting in the Oval Office, Klaidman writes that Koh said directly to the
President, “In the history of the United States there have been three large-scale internments: the
Palmer Raids, the Japanese internments, and the Bush administration’s post-9/ 11 detentions. ….
Mr. President, if you end up embracing a regime of indefinite preventive detention, it will be

 your legacy— and it will be worse than what the Bush administration did.” Klaidman’s account
suggests that Koh’s bold effort shaped the President’s decision to proceed against the advice of
political consultants and recommit to closing the detention facility.
Furthermore, in 2010, the New York Times[7] reported that an internal fissure within the
administration had developed over how to define the types of individuals who could be detained
without trial as wartime prisoners. The Times identified Koh as the source of opposition to
ongoing U.S. practices: “some criticized the notion that the United States could also consider
mere supporters, arrested far away, to be just as detainable without trial as enemy fighters. That
view was amplified after Harold Koh … became the State Department’s top lawyer in late June.
Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws
of war for the United States’ position in the Bensayah case. Mr. Koh found himself in immediate
conflict with the Pentagon’s top lawyer.” How important a legal question was this? “‘Beyond the
technical legal issues, this debate is about the fundamental question of whom we are at war
with,’” Professor Noah Feldman told the New York Times.
Finally, what about the drones program, targeted killing, and lethal operations, which are at
the heart of the petition? Of course application of the Geneva Conventions and international
human rights treaties to U.S. actions in foreign countries would constrain the U.S. military, but
Koh took the lead on specific ways to bring U.S. actions into compliance with international law
and, even above what international law might require, with respect to humane and reasonable
policy. Klaidman’s book describes Koh as an individual who was perceived by other officials as
the leading human rights advocate inside the administration and who pushed back hardest against
forces inside the Pentagon and CIA. According to Klaidman, as one measure of resistance, Koh
developed a test that called for targeting only senior members of enemy forces on the theory that
“a low-level member, like a driver or a cook, was easily replaced and therefore posed no unique
threat to the United States or its interests.” As Klaidman explains, this was the type of legal
constraints that “drove the operators crazy.”
Another incredibly important legal issue in lethal targeting involved whether the United States
could try to kill any member of an al-Qaeda affiliated group operating in Somalia or Yemen or
only those individuals who directed their hostilities toward attacking the United States.
According to a New York Times story in 2011[8], the issue pitted Koh once again against the
General Counsel of the Defense Department. What was at stake were thousands of lives. As the
Times described it, “the debate…centers on whether the United States may take aim at only a
handful of high-level leaders of militant groups who are personally linked to plots to attack the
United States or whether it may also attack the thousands of low-level foot soldiers focused on
parochial concerns.” The Times added: “State Department lawyers are trying to reach out to
European allies who think that there is no armed conflict, for legal purposes, outside of
Afghanistan, and that the United States has a right to take action elsewhere only in self-defense,
the official said.”
Klaidman also recounts a culminating moment in which Koh successfully blocked efforts by the
top lawyers of the National Security Council and the Pentagon to expand the list of targets by
putting his name and office on the line: “‘The State Department legal adviser, for the record,

 believes this killing would be unlawful,” [Koh] said slowly and emphatically,’” and other
officials may have capitulated for fear that Koh might resign, according to Klaidman’s book.
According to multiple works [9][10][11], Koh was the most powerful advocate inside the
administration for greater levels of transparency with respect to counterterrorism programs
including the drone program and use of lethal force. And Koh used the opportunity of a speech
before the American Society of International Law to bring the administration toward a greater
level of comfort and commitment to public disclosures of its internal legal reasoning. As Dan
Klaidman explained in a Newsweek article, “It came down to what Denis McDonough, the
deputy national-security adviser, cheekily called the ‘half Monty’ versus the ‘full Monty,’ after
the British movie about a male striptease act. In the end, the principals settled on the half Monty.
As the State Department’s Koh continued to push for the maximum amount of disclosure,
McDonough began referring to that position as ‘the full Harold.’”
Needless to say, Professor Koh has continued to pursue these efforts since leaving government
and continues to have an imprint on the administration’s actions that bring it into greater
compliance with international law. In congressional testimony and in writings, he has led the way
for fundamentally rethinking the U.S. response to terrorism and ending “The Forever War;” he
has publicly called on the administration to accept his legal conclusions on the extraterritorial
application of human rights treaties; he has criticized the continued lack of transparency
including over civilian casualties; and he has criticized reliance on the 2001 authorization for use
of military force for operations against the Islamic State. Has Professor Koh balanced all those
efforts with a concern for the national security of the United States? Of course, and where he
strikes that balance may not be to the full satisfaction of some of the signatories of the petition.
But that zone of disagreement is actually quite small, and no academic institution would
condemn individuals on either side of it.
***
Where does that leave us? At a minimum: If a reasonable person could come to the conclusion
that US targeted killing and other post 9/11 programs would have been far worse if Koh had not
served in government, a condemnatory petition would naturally be unwarranted and indefensible.
And, indeed, Koh’s public service amounts to far more than that low threshold.
The petition begins with an inflammatory quote from Hannah Arendt, one of the most insightful
analysts of the Nazi regime and totalitarianism: “A functionary, when he really is nothing more
than a functionary, is really a very dangerous gentleman.” Based on the record above, we can be
sure that Arendt would have thought Koh was no functionary and that the world would be a
better place with more Harold Kohs in government. It is sad that petitions like this one might
discourage other human rights oriented professionals from pursuing government service.
The petition’s flaws undermine the very causes it tries to serve. I urge you to reconsider your
views in light of the full record. Doing so will reflect well on us as a community, and will
facilitate a more open conversation about the challenges of human rights advocates serving in
government in times of emergency and armed conflict.

 [1] Statement of Harold Hongju Koh, Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law,
Yale Law School Before the Senate Judiciary Committee, Subcommittee on The Constitution on Restoring the Rule
of Law, Sept. 16, 2008
http://www.law.yale.edu/documents/pdf/News_&_Events/Kohtestimony091608RuleofLaw.pdf
[2] Gregory Johnsen, 60 Words and A War Without End: The Untold Story Of The Most Dangerous Sentence In U.S.
History, Buzzfeed Jan. 16, 2014 http://www.buzzfeed.com/gregorydjohnsen/60-words-and-a-war-without-end-theuntold-story-of-the-most#.ltxXw90Y5
[3] Charlie Savage, U.S. Seems Unlikely to Accept That Rights Treaty Applies to Its Actions Abroad, Mar. 6, 2014
http://www.nytimes.com/2014/03/07/world/us-seems-unlikely-to-accept-that-rights-treaty-applies-to-its-actionsabroad.html?_r=0
[4] Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay, 364-65 (2013)
[5] Obama officials pushed, failed to get new rules in Khadr tribunal, https://listserv.buffalo.edu/cgi-bin/wa?
A3=ind1005&L=JUSTWATCH-L&E=quoted-printable&P=2991452&B=--&T=text%2Fplain;%20charset=usascii&header=1
[6] Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency 144 (2012).
[7] Charlie Savage, Obama Team Is Divided on Anti-Terror Tactics, New York Times, Mar. 28, 2010
http://www.nytimes.com/2010/03/29/us/politics/29force.html?pagewanted=all
[8] Charlie Savage, At White House, Weighing Limits of Terror Fight, New York Times, Sept. 15, 2011
http://www.nytimes.com/2011/09/16/us/white-house-weighs-limits-of-terror-fight.html?hp&_r=0
[9] Daniel Klaidman, Obama Team to Break Silence on al-Awlaki Killing, Newsweek, Jan. 23 2012
http://www.newsweek.com/obama-team-break-silence-al-awlaki-killing-64257
[10] Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency (2012).
[11] David Sanger, Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power (p. 255)
(2012).