Harold Hongju Koh
Encyclopedia
Harold Hongju Koh is an Korean American
lawyer and legal scholar. He currently serves as the Legal Adviser of the Department of State
. He was nominated to his current position by President
Barack Obama
on March 23, 2009, and confirmed
by the Senate
on June 25, 2009.
In public service, Koh previously served in the United States Department of State
during the Clinton administration
as Assistant Secretary of State for Democracy, Human Rights, and Labor
. In academia, he served as a member of the faculty of Yale Law School
, and later as its Dean
.
, Massachusetts. His parents grew up in Korea under Japanese rule
. He has described his family thus:
After the coup, Koh's father, legal scholar and diplomat Kwang Lim Koh, was granted asylum in the United States
. He moved to New Haven, Connecticut
with his family and took a teaching position at Yale. His wife, Hesung Chun Koh (Harold Koh's mother), had a Ph.D. in sociology
and taught at Yale as well—they were the first Asian American
s to teach there.
One of six siblings, Harold was struck by polio at age six; he went through "two operations, leg braces, and endless rehabilitation" and as a result still walks with a limp.
One of Koh's siblings, Howard Kyongju Koh, a Harvard University
public health professor and former Massachusetts Public Health Commissioner, currently serves as the United States Assistant Secretary for Health
in the Obama administration
. Another sibling, Jean Koh Peters, also teaches at Yale Law School
.
Koh's wife, Mary-Christy Fisher, is an attorney employed by the New Haven Legal Assistance Association; they have two children.
in New Haven
; graduated summa cum laude
and Phi Beta Kappa from Harvard in 1975 with a degree in Government. He received a Marshall Scholarship
to study at Magdalen College
, Oxford University, and graduated cum laude
from Harvard Law School
in 1980. At Harvard Law School, Koh was a member of the Board of Student Advisers.
for Associate Justice
Harry Blackmun
on the U.S. Supreme Court from October 1981 through September 1982. In 1982 and 1983, he worked as an associate at Covington & Burling
.
From 1983 to 1985, Koh worked as an attorney-adviser to the Office of Legal Counsel
(OLC) in the United States Department of Justice
under Reagan.
He joined the Yale Law School faculty in 1985. Since 1993 he has been the Gerard C. and Bernice Latrobe Smith Professor of International Law; he became the law school's 15th dean in 2004. From 1985 through 1991, Koh largely devoted himself to writing and teaching.
A notable paper Koh wrote was a November 1990 legal brief challenging the first president Bush's contention that he could fight the Gulf War
on his own authority. Koh argued that "the Constitution
requires the president to 'consult with Congress
and receive its affirmative authorization — not merely present it with faits accomplis — before engaging in war.'"
In 1992–93, he led a group of Yale students and human rights
lawyers in litigation against the United States government to free Haitian refugees interned at Guantanamo Bay, Cuba. As chronicled in Brandt Goldstein's book Storming the Court (Scribner 2005), Koh and the plaintiffs prevailed in the case, Haitian Centers Council v. Sale, and the Haitians were released in the spring of 1993. At the same time, Koh and his team of law students argued a related case Sale v. Haitian Centers Council
before the U.S. Supreme Court
but the court ruled against them on an 8-1 vote.
In part because of his tenacious work on the Haitian Centers Council case, Koh was nominated by President Clinton
to become Assistant Secretary of State for Democracy, Human Rights, and Labor
on September 10, 1998, and confirmed unanimously by the Senate
on October 21, 1998. He assumed the job on November 13, 1998, and remained in office until the end of the Clinton presidency on January 20, 2001.
Koh is the author of several books, including The National Security Constitution: Sharing Power after the Iran-Contra Affair (Yale University Press
,1990); Transnational Legal Problems (with Harry Steiner and Detlev Vagts, Foundation Press, 1994); Deliberative Democracy and Human Rights (with Ronald C. Slye, Yale University Press, 1999); and Transnational Litigation in United States Courts (Foundation Press 2008). He has also written over 175 law review articles and legal editorials.
Koh is a prominent advocate of human rights and civil rights
; he has argued and written briefs on a wide number of cases before U.S. appellate courts, and has testified before the U.S. Congress more than a dozen times. He has received numerous awards, medals, and honorary degrees.
Blogger David Lat
(editor of abovethelaw.com) and George Mason professor David Bernstein
(contributing to the Volokh Conspiracy), have described Koh as a "highly partisan Democrat" and claim that he has politically polarized Yale Law School during his tenure as dean. Other observers have countered that during his tenure prominent conservatives have been appointed to the Yale law faculty, and note that Koh has served in both Republican (Reagan) and Democratic (Clinton) administrations. A group of Yale Conservative Law Students offered a vigorous defense of Koh, noting that "Dean Koh has been very supportive of conservative students and conservative student organizations." They conclude, "Dean Koh is one of the brightest legal minds of his generation, a credit to the profession we look forward to joining, and an able and effective public servant."
On May 4, 2010, the Friends of the Law Library of the Library of Congress presented Koh with their annual award named for George W. Wickersham
.
and from typically conservative publications such as Forbes
.
Koh has written in support of the practice of using tenets of international law and foreign legal precedent to inform the deliberative process of judicial decision making in the United States, and has described what he has called "transnational jurisprudence" as essential to maintaining a well-ordered international legal system. Arguing that "concepts like liberty, equality and privacy are not exclusively American constitutional ideas but, rather, part and parcel of the global human rights movement" Koh has traced the influence of decisions from foreign courts throughout the history of U.S. Supreme Court and the American court system. Critics of this approach, including Supreme Court justices Antonin Scalia
and Clarence Thomas
, argue that citing foreign decisions as legal precedent
s threatens American sovereignty and "lends itself to manipulation." Other commentators have observed that the “use of such nonbinding sources to bolster legal arguments is a central and uncontroversial tenet of the American judicial process."
On May 12, 2009, the Senate Committee on Foreign Relations voted 12–5 in favor of Koh. After a hold was placed on his nomination, Senate Majority Leader Harry Reid
announced on June 22, 2009, that he would invoke cloture
on the nomination. On June 24, 2009, the Senate voted 65–31 to end debate on the nomination, paving the way for a full Senate vote the following day. On June 25, 2009, Koh was confirmed by the Senate in a 62–35 vote. While working in government, Koh is taking a leave of absence from Yale Law School.
by aerial drone
strikes in Pakistan
, Yemen
, and other countries included by the U.S. government as being within the scope of the war on terror
. The State Department's legal adviser said that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs)", which the Obama administration has leaned on heavily in its efforts to eliminate al-Qaeda
and other terrorist groups in Asia, "comply with all applicable law, including the laws of war
", citing the principles of distinction
and proportionality
. He said that the U.S. adheres to these standards, and takes great care in the "planning and execution to ensure that only legitimate objectives are targeted, and that collateral damage
is kept to a minimum."
He said the U.S. is in "an armed conflict with al-Qaeda, the Taliban, and the associated forces", and therefore has the lawful right to use force
to protect its citizens "consistent with its inherent right to self-defense" under international law
. Koh identified three elements that the U.S. considers when determining whether to authorize a specific targeted drone killing:
He also said that the drone strikes against al-Qaeda and its allies were lawful targeted killing, as part of the military action authorized by Congress, and not assassination
, which is banned by executive order. Under domestic law, U.S. targeted killings against 9/11-related entities is authorized by the Authorization for Use of Military Force Against Terrorists
.
The speech earned praise from the editorial board of The Wall Street Journal
Koh was criticized by lawyer Jennifer Robinson, who represents activist Julian Assange, for addressing a letter to both her and her client. Robinson felt this was in breach of legal custom.
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Korean American
Korean Americans are Americans of Korean descent, mostly from South Korea, with a small minority from North Korea...
lawyer and legal scholar. He currently serves as the Legal Adviser of the Department of State
Legal Adviser of the Department of State
The Legal Adviser of the Department of State is a position within the United States Department of State. It was created by an Act of Congress on February 23, 1931 and given a rank equivalent to that of an Assistant Secretary...
. He was nominated to his current position by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Barack Obama
Presidency of Barack Obama
The Presidency of Barack Obama began at noon EST on January 20, 2009 when he became the 44th President of the United States. Obama was a United States Senator from Illinois at the time of his victory over Arizona Senator John McCain in the 2008 presidential election...
on March 23, 2009, and confirmed
Advice and consent
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
by the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on June 25, 2009.
In public service, Koh previously served in the United States Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
during the Clinton administration
Presidency of Bill Clinton
The United States Presidency of Bill Clinton, also known as the Clinton Administration, was the executive branch of the federal government of the United States from January 20, 1993 to January 20, 2001. Clinton was the first Democratic president since Franklin D. Roosevelt to win a second full term...
as Assistant Secretary of State for Democracy, Human Rights, and Labor
Assistant Secretary of State for Democracy, Human Rights, and Labor
The Assistant Secretary of State for Democracy, Human Rights, and Labor is the head of the Bureau of Democracy, Human Rights, and Labor within the United States Department of State...
. In academia, he served as a member of the faculty of Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, and later as its Dean
Dean (education)
In academic administration, a dean is a person with significant authority over a specific academic unit, or over a specific area of concern, or both...
.
Early life and family
Koh was born in BostonBoston
Boston is the capital of and largest city in Massachusetts, and is one of the oldest cities in the United States. The largest city in New England, Boston is regarded as the unofficial "Capital of New England" for its economic and cultural impact on the entire New England region. The city proper had...
, Massachusetts. His parents grew up in Korea under Japanese rule
Korea under Japanese rule
Korea was under Japanese rule as part of Japan's 35-year imperialist expansion . Japanese rule ended in 1945 shortly after the Japanese defeat in World War II....
. He has described his family thus:
They grew up under Japanese colonial rule, forbidden to speak Korean or even to use their Korean names. When their country was divided after World War II, my mother and her family were trapped in North Korea. In desperation, they hiked for days to the border to be picked up and were brought back to Seoul. But even there, they lived under dictatorship. For less than a year in the 1960s, (South) Korea enjoyed democracy. My father joined the diplomatic corps. But one day, tanks rolled and a coup d'etat toppled the governmentApril RevolutionThe April Revolution, sometimes called the April 19 Revolution or April 19 Movement, was a popular uprising in April 1960, led by labor and student groups, which overthrew the autocratic First Republic of South Korea under Syngman Rhee. It led to the peaceful resignation of Rhee and the transition...
, leaving us to grow up in America.
After the coup, Koh's father, legal scholar and diplomat Kwang Lim Koh, was granted asylum in the United States
Asylum in the United States
The United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who apply for asylum either overseas or after arriving in the U.S., are admitted annually. Refugees compose about one-tenth of the total...
. He moved to New Haven, Connecticut
New Haven, Connecticut
New Haven is the second-largest city in Connecticut and the sixth-largest in New England. According to the 2010 Census, New Haven's population increased by 5.0% between 2000 and 2010, a rate higher than that of the State of Connecticut, and higher than that of the state's five largest cities, and...
with his family and took a teaching position at Yale. His wife, Hesung Chun Koh (Harold Koh's mother), had a Ph.D. in sociology
Sociology
Sociology is the study of society. It is a social science—a term with which it is sometimes synonymous—which uses various methods of empirical investigation and critical analysis to develop a body of knowledge about human social activity...
and taught at Yale as well—they were the first Asian American
Asian American
Asian Americans are Americans of Asian descent. The U.S. Census Bureau definition of Asians as "Asian” refers to a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, for example, Cambodia, China, India, Indonesia, Japan,...
s to teach there.
One of six siblings, Harold was struck by polio at age six; he went through "two operations, leg braces, and endless rehabilitation" and as a result still walks with a limp.
One of Koh's siblings, Howard Kyongju Koh, a Harvard University
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
public health professor and former Massachusetts Public Health Commissioner, currently serves as the United States Assistant Secretary for Health
United States Assistant Secretary for Health
The United States Assistant Secretary for Health serves as the Secretary of Health and Human Services's primary advisor on matters involving the nation's public health and, if serving as an active member in the regular corps, is the highest ranking uniformed officer in the Public Health Service...
in the Obama administration
Presidency of Barack Obama
The Presidency of Barack Obama began at noon EST on January 20, 2009 when he became the 44th President of the United States. Obama was a United States Senator from Illinois at the time of his victory over Arizona Senator John McCain in the 2008 presidential election...
. Another sibling, Jean Koh Peters, also teaches at Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
.
Koh's wife, Mary-Christy Fisher, is an attorney employed by the New Haven Legal Assistance Association; they have two children.
Education
Koh graduated in 1971 from the Hopkins SchoolHopkins School
The Hopkins School is a private, college-preparatory, coeducational day school, located in New Haven, Connecticut....
in New Haven
New Haven, Connecticut
New Haven is the second-largest city in Connecticut and the sixth-largest in New England. According to the 2010 Census, New Haven's population increased by 5.0% between 2000 and 2010, a rate higher than that of the State of Connecticut, and higher than that of the state's five largest cities, and...
; graduated summa cum laude
Latin honors
Latin honors are Latin phrases used to indicate the level of academic distinction with which an academic degree was earned. This system is primarily used in the United States, Canada, and in many countries of continental Europe, though some institutions also use the English translation of these...
and Phi Beta Kappa from Harvard in 1975 with a degree in Government. He received a Marshall Scholarship
Marshall Scholarship
The Marshall Scholarship, a postgraduate scholarships available to Americans, was created by the Parliament of the United Kingdom when the Marshall Aid Commemoration Act was passed in 1953. The scholarships serve as a living gift to the United States of America in recognition of the post-World War...
to study at Magdalen College
Magdalen College, Oxford
Magdalen College is one of the constituent colleges of the University of Oxford in England. As of 2006 the college had an estimated financial endowment of £153 million. Magdalen is currently top of the Norrington Table after over half of its 2010 finalists received first-class degrees, a record...
, Oxford University, and graduated cum laude
Latin honors
Latin honors are Latin phrases used to indicate the level of academic distinction with which an academic degree was earned. This system is primarily used in the United States, Canada, and in many countries of continental Europe, though some institutions also use the English translation of these...
from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
in 1980. At Harvard Law School, Koh was a member of the Board of Student Advisers.
Early career and scholarship
Koh clerkedLaw clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
for Associate Justice
Associate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
on the U.S. Supreme Court from October 1981 through September 1982. In 1982 and 1983, he worked as an associate at Covington & Burling
Covington & Burling
Covington & Burling LLP is an international law firm with offices in Beijing, Brussels, London, New York, San Francisco, Silicon Valley, San Diego, and Washington, DC. The firm advises multinational corporations on significant transactional, litigation, regulatory, and public policy matters...
.
From 1983 to 1985, Koh worked as an attorney-adviser to the Office of Legal Counsel
Office of Legal Counsel
The Office of Legal Counsel is an office in the United States Department of Justice that assists the Attorney General in his function as legal adviser to the President and all executive branch agencies.-History:...
(OLC) in the United States Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
under Reagan.
He joined the Yale Law School faculty in 1985. Since 1993 he has been the Gerard C. and Bernice Latrobe Smith Professor of International Law; he became the law school's 15th dean in 2004. From 1985 through 1991, Koh largely devoted himself to writing and teaching.
A notable paper Koh wrote was a November 1990 legal brief challenging the first president Bush's contention that he could fight the Gulf War
Gulf War
The Persian Gulf War , commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from 34 nations led by the United States, against Iraq in response to Iraq's invasion and annexation of Kuwait.The war is also known under other names, such as the First Gulf...
on his own authority. Koh argued that "the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
requires the president to 'consult with Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and receive its affirmative authorization — not merely present it with faits accomplis — before engaging in war.'"
In 1992–93, he led a group of Yale students and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
lawyers in litigation against the United States government to free Haitian refugees interned at Guantanamo Bay, Cuba. As chronicled in Brandt Goldstein's book Storming the Court (Scribner 2005), Koh and the plaintiffs prevailed in the case, Haitian Centers Council v. Sale, and the Haitians were released in the spring of 1993. At the same time, Koh and his team of law students argued a related case Sale v. Haitian Centers Council
Sale v. Haitian Centers Council
Sale v. Haitian Centers Council, 509 U.S. 155 is a case in which U.S. Supreme Court ruled that the President's executive order that all aliens intercepted on the high seas could be repatriated and that executive order was not limited by the Immigration and Nationality Act of 1952 or Article 33 of...
before the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
but the court ruled against them on an 8-1 vote.
In part because of his tenacious work on the Haitian Centers Council case, Koh was nominated by President Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
to become Assistant Secretary of State for Democracy, Human Rights, and Labor
Assistant Secretary of State for Democracy, Human Rights, and Labor
The Assistant Secretary of State for Democracy, Human Rights, and Labor is the head of the Bureau of Democracy, Human Rights, and Labor within the United States Department of State...
on September 10, 1998, and confirmed unanimously by the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on October 21, 1998. He assumed the job on November 13, 1998, and remained in office until the end of the Clinton presidency on January 20, 2001.
Koh is the author of several books, including The National Security Constitution: Sharing Power after the Iran-Contra Affair (Yale University Press
Yale University Press
Yale University Press is a book publisher founded in 1908 by George Parmly Day. It became an official department of Yale University in 1961, but remains financially and operationally autonomous....
,1990); Transnational Legal Problems (with Harry Steiner and Detlev Vagts, Foundation Press, 1994); Deliberative Democracy and Human Rights (with Ronald C. Slye, Yale University Press, 1999); and Transnational Litigation in United States Courts (Foundation Press 2008). He has also written over 175 law review articles and legal editorials.
Koh is a prominent advocate of human rights and civil rights
Civil rights
Civil and political rights are a class of rights that protect individuals' freedom from unwarranted infringement by governments and private organizations, and ensure one's ability to participate in the civil and political life of the state without discrimination or repression.Civil rights include...
; he has argued and written briefs on a wide number of cases before U.S. appellate courts, and has testified before the U.S. Congress more than a dozen times. He has received numerous awards, medals, and honorary degrees.
Blogger David Lat
David Lat
David B. Lat is an American blogger and a former federal prosecutor. He is the founder and managing editor of Above the Law, a blog about law firms and the legal profession....
(editor of abovethelaw.com) and George Mason professor David Bernstein
David Bernstein (law professor)
David E. Bernstein is Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995....
(contributing to the Volokh Conspiracy), have described Koh as a "highly partisan Democrat" and claim that he has politically polarized Yale Law School during his tenure as dean. Other observers have countered that during his tenure prominent conservatives have been appointed to the Yale law faculty, and note that Koh has served in both Republican (Reagan) and Democratic (Clinton) administrations. A group of Yale Conservative Law Students offered a vigorous defense of Koh, noting that "Dean Koh has been very supportive of conservative students and conservative student organizations." They conclude, "Dean Koh is one of the brightest legal minds of his generation, a credit to the profession we look forward to joining, and an able and effective public servant."
On May 4, 2010, the Friends of the Law Library of the Library of Congress presented Koh with their annual award named for George W. Wickersham
George W. Wickersham
George Woodward Wickersham was an American lawyer and Presidential Cabinet Secretary.-Biography:Born in Pittsburgh, Pennsylvania, he graduated from the University of Pennsylvania...
.
Nomination
On March 23, 2009, the White House announced Koh's nomination as Legal Adviser to the State Department in the Obama administration, the senior legal adviser to Secretary of State Hillary Clinton. His nomination was generally supported in the Senate and among legal colleagues. The nomination drew criticism from some conservative commentators for his views on international law and its use in American legal analysis and jurisprudence, while drawing support from other conservatives such as Ted Olson and Kenneth StarrKenneth Starr
Kenneth Winston "Ken" Starr is an American lawyer and educational administrator who has also been a federal judge. He is best known for his investigation of figures during the Clinton administration....
and from typically conservative publications such as Forbes
Forbes
Forbes is an American publishing and media company. Its flagship publication, the Forbes magazine, is published biweekly. Its primary competitors in the national business magazine category are Fortune, which is also published biweekly, and Business Week...
.
Koh has written in support of the practice of using tenets of international law and foreign legal precedent to inform the deliberative process of judicial decision making in the United States, and has described what he has called "transnational jurisprudence" as essential to maintaining a well-ordered international legal system. Arguing that "concepts like liberty, equality and privacy are not exclusively American constitutional ideas but, rather, part and parcel of the global human rights movement" Koh has traced the influence of decisions from foreign courts throughout the history of U.S. Supreme Court and the American court system. Critics of this approach, including Supreme Court justices Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
and Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, argue that citing foreign decisions as legal precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
s threatens American sovereignty and "lends itself to manipulation." Other commentators have observed that the “use of such nonbinding sources to bolster legal arguments is a central and uncontroversial tenet of the American judicial process."
On May 12, 2009, the Senate Committee on Foreign Relations voted 12–5 in favor of Koh. After a hold was placed on his nomination, Senate Majority Leader Harry Reid
Harry Reid
Harry Mason Reid is the senior United States Senator from Nevada, serving since 1987. A member of the Democratic Party, he has been the Senate Majority Leader since January 2007, having previously served as Minority Leader and Minority and Majority Whip.Previously, Reid was a member of the U.S...
announced on June 22, 2009, that he would invoke cloture
Cloture
In parliamentary procedure, cloture is a motion or process aimed at bringing debate to a quick end. It is also called closure or, informally, a guillotine. The cloture procedure originated in the French National Assembly, from which the name is taken. Clôture is French for "ending" or "conclusion"...
on the nomination. On June 24, 2009, the Senate voted 65–31 to end debate on the nomination, paving the way for a full Senate vote the following day. On June 25, 2009, Koh was confirmed by the Senate in a 62–35 vote. While working in government, Koh is taking a leave of absence from Yale Law School.
Views on targeted killing
Koh argued strongly in a March 2010 speech for the legality of targeted killingTargeted killing
Targeted killing is the deliberate, specific targeting and killing, by a government or its agents, of a supposed terrorist or of a supposed "unlawful combatant" who is not in that government's custody...
by aerial drone
Unmanned aerial vehicle
An unmanned aerial vehicle , also known as a unmanned aircraft system , remotely piloted aircraft or unmanned aircraft, is a machine which functions either by the remote control of a navigator or pilot or autonomously, that is, as a self-directing entity...
strikes in Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
, Yemen
Yemen
The Republic of Yemen , commonly known as Yemen , is a country located in the Middle East, occupying the southwestern to southern end of the Arabian Peninsula. It is bordered by Saudi Arabia to the north, the Red Sea to the west, and Oman to the east....
, and other countries included by the U.S. government as being within the scope of the war on terror
War on Terror
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
. The State Department's legal adviser said that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs)", which the Obama administration has leaned on heavily in its efforts to eliminate al-Qaeda
Al-Qaeda
Al-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
and other terrorist groups in Asia, "comply with all applicable law, including the laws of war
Laws of war
The law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
", citing the principles of distinction
Distinction
*Distinction may refer to:* Distinction is a social force that places different values on different individuals....
and proportionality
Proportionality
Proportionality may refer to:*Proportionality , the relationship of two variables whose ratio is constant*Proportionality , A legal principle under municipal law in which the punishment of a certain crime should be in proportion to the severity of the crime itself, and under international law an...
. He said that the U.S. adheres to these standards, and takes great care in the "planning and execution to ensure that only legitimate objectives are targeted, and that collateral damage
Collateral damage
Collateral damage is damage to people or property that is unintended or incidental to the intended outcome. The phrase is prevalently used as an euphemism for civilian casualties of a military action.-Etymology:...
is kept to a minimum."
He said the U.S. is in "an armed conflict with al-Qaeda, the Taliban, and the associated forces", and therefore has the lawful right to use force
Use of force by states
The use of force by states is controlled by both customary international law and by treaty law. The UN Charter reads in article 2:All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or...
to protect its citizens "consistent with its inherent right to self-defense" under international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. Koh identified three elements that the U.S. considers when determining whether to authorize a specific targeted drone killing:
- Imminence of the threat;
- SovereigntySovereigntySovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
of other States involved; and - Willingness and ability of those States to suppress the threat the target poses.
He also said that the drone strikes against al-Qaeda and its allies were lawful targeted killing, as part of the military action authorized by Congress, and not assassination
Assassination
To carry out an assassination is "to murder by a sudden and/or secret attack, often for political reasons." Alternatively, assassination may be defined as "the act of deliberately killing someone, especially a public figure, usually for hire or for political reasons."An assassination may be...
, which is banned by executive order. Under domestic law, U.S. targeted killings against 9/11-related entities is authorized by the Authorization for Use of Military Force Against Terrorists
Authorization for Use of Military Force Against Terrorists
The Authorization for Use of Military Force Against Terrorists , one of two resolutions commonly known as "AUMF" , was a joint resolution passed by the United States Congress on September 14, 2001, authorizing the use of United States Armed Forces against those responsible for the attacks on...
.
The speech earned praise from the editorial board of The Wall Street Journal
The Wall Street Journal
The Wall Street Journal is an American English-language international daily newspaper. It is published in New York City by Dow Jones & Company, a division of News Corporation, along with the Asian and European editions of the Journal....
Koh was criticized by lawyer Jennifer Robinson, who represents activist Julian Assange, for addressing a letter to both her and her client. Robinson felt this was in breach of legal custom.
See also
- List of law clerks of the Supreme Court of the United States
- Barack Obama Supreme Court candidatesBarack Obama Supreme Court candidatesPresident Barack Obama has made two successful appointments to the Supreme Court of the United States. The first was that of Judge Sonia Sotomayor to fill the vacancy created by the retirement of Associate Justice David H. Souter. Sotomayor was confirmed by the United States Senate on August 6,...
External links
- U.S. State Department's Office of the Legal Adviser and Harold H. Koh's Biography
- Faculty profile at Yale Law
- Faculty C.V. at Yale Law
- Interview
- The Bright Lights of Freedom, Koh's radio essay on freedom and democracy that was broadcast on NPR
- Conceptions of the Court
- Criticism of Koh's Politics
- Koh and Linda Greenhouse
- Slates Dahlia Lithwick on conservative bloggers' criticism of Koh
- Conservative legal analyst Ed Whelan's survey of Koh's writings on international law
- Yale Law SchoolYale Law SchoolYale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
's Dean Harold H. Koh with Former ICJ President Stephen M. SchwebelStephen M. SchwebelStephen Myron Schwebel is an American jurist and expert on international law. He is well known for his separate and dissenting opinions as a Judge of the International Court of Justice 1981-2000 and for his involvement in many cases of the ICSID and Permanent Court of Arbitration.-Biography:Judge...
and Prof. W. Michael Reisman at ceremony of hanging Judge Schwebel's portrait in the Yale Law School on September 27, 2007 - Harold Koh's Lecture From International to Transnational Law on the website of the UN Audiovisual Library of International Law which was launched in 2008
- ASIL Counsellor Koh Sworn In as the U.S. Legal Adviser on June 26, 2009 and His Selected Writings
- Harold Koh Is Named the First Martin R. Flug ’55 Professor of International Law of November 20, 2009
- U.S. Agent Harold H. Koh during Kosovo Oral Hearings, ICJ President Hisashi OwadaHisashi Owadais a former Japanese diplomat and a judge on the International Court of Justice, and currently serves as its President, having been elected to this post in 2009.-Early life:Hisashi Owada was born in Shibata, Niigata Prefecture, Japan. After earning a B.A...
, 1–11 December 2009 and Agent Koh's Statement of December 8, 2009, at pp.22–39 and Overview of International Court of Justice advisory opinion on the legality of Kosovo's unilaterally proclaimed independence and USA-Russia Clash in the ICJ over Kosovo's Independence of December 10, 2009 and December 9, 2009 and UN World Court Ends Public Hearings of December 11, 2009 and ICJ Kosovo Advisory Opinion Rules Kosovo's Independence Legal of July 22, 2010 and Legal Adviser Koh briefs on ICJ Kosovo Opinion of July 22, 2010 and Kosovo Did Not Violate International Law and ASIL Insight on Kosovo Advisory Opinion of August 17, 2010 and ICJ Kosovo Independence Ruling Watched Around the World of August 25, 2010 - U.S. Legal Adviser Harold H. Koh on Law of 9/11 of March 25, 2010 at the 104th ASIL in Ritz Carlton in Washington, D.C.Washington, D.C.Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
and His Video in 104th ASIL Videos - U.S. Legal Adviser Harold Hongju Koh's Membership, along with i.a. H.E. Former ICJ President Stephen M. SchwebelStephen M. SchwebelStephen Myron Schwebel is an American jurist and expert on international law. He is well known for his separate and dissenting opinions as a Judge of the International Court of Justice 1981-2000 and for his involvement in many cases of the ICSID and Permanent Court of Arbitration.-Biography:Judge...
, in the U.S. National Group of the PCA which on June 18, 2010 nominated U.S. Principal Deputy Legal Adviser Joan E. Donoghue to be the third – after ICJ President Rosalyn HigginsRosalyn HigginsDame Rosalyn Higgins, DBE, QC is the former President of the International Court of Justice. Higgins was the first female judge to be appointed to the ICJ, and was elected President in 2006. Her term of office expired on 6 February 2009...
and Ms Xue Hanqin – woman Judge in the International Court of Justice's history and U.S. Foreign Secretary Hillary Clinton's Congratulations and ASIL/ILIB and Judge Donoghue Elected by the UNSC and UNGA to the World Court on September 9, 2010
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