Controversy Swirls Around NYU Law Professor Involved in Obama's Drone Program

Harold Koh NYU
Harold Koh speaks at the U.S. Mission to the United Nations in Geneva on September 28, 2009. Then the legal advisor to the U.S. Department of State, Koh, a current visiting scholar at NYU, is now the subject of a petition at the law school. U.S. Mission / Eric Bridiers

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 defender of the president's drone strike program. Last month, a petition was 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 writes.

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 in 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 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 in 2012.

"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 law."

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 about 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 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 against 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.