International Law, Law Schools

NYU Law Students Need To Get Off Their High Horse

NYU students are up in arms over a professor who has given controversial legal advice.

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UPDATE: Note the short update at the bottom of this story.

Part of being a student is the freedom to hold all manner of idealistic stances with the tenacity of a petty commissar. Every arguably “moral” conflict is an all-or-nothing proposition within the Ivory Tower because there’s pretty much no downside to ranting about every slight, real or perceived. And that’s generally a good thing. It lets students work out the kinks in their personal ethics — learning to pick and choose their battles — so they won’t grow up to be hopeless, untethered rage-aholics.

But part of that learning process is smacking down that unfettered idealism from time to time and forcing the students to get some perspective. That time has come for the assembled NYU Law students throwing a fit over the school letting Harold Koh teach an international law course.

Make no mistake, I’m sympathetic to these students. To a point.

Professor Harold Koh, the former dean of Yale Law School and former Legal Adviser of the Department of State, is currently a Distinguished Scholar in Residence at NYU Law teaching International Human Rights: Law Policy and Strategy. That would seem like an ideal subject for a two-time State Department lawyer with decades of international law experience to teach. Unfortunately, Koh has his fingerprints all over the Obama administration’s targeted killing policy, which he has repeatedly defended as compliant with international law, a stance that deeply concerns people who’ve noticed the number of civilians killed by drone strikes. Given the documented carnage, objecting to drone strikes (in particular the so-called “signature strikes” that targeted faceless people the CIA just kinda felt might be terrorists) is entirely reasonable.

But that’s not the entirety of Professor Koh’s stance on drones. He’s also publicly criticized the administration for keeping its targeted killing policy a secret, preventing useful scrutiny of its provisions. To hear Koh tell it, a lot of the opposition to the policy stems from people merely guessing at what it says and that the reality is not as arbitrary as it looks from outside. Now, no amount of transparency will bring back the innocent civilians killed, but that’s not really the question when it comes to Professor Koh. The controversy about Professor Koh is whether the policy — in all its details — complies with international norms for wartime conduct. This may not satisfy staunch peace activists, but the laws of warfare aren’t actually about guaranteeing the safety of every non-combatant. Which you’d learn in, say, an International Law course.

Notwithstanding, a bunch of NYU Law students signed onto a “Statement of No Confidence in Harold H. Koh,” which is reproduced on the next page. Calling out Professor Koh for his stance on targeted killing and citing a number of scholarly critics, the students demand the school kick Koh to the curb.

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While we believe that NYU Law should remain committed to academic freedom, we take issue not with Mr. Koh’s opinions but rather with his actions—that is, his direct facilitation of the U.S. government’s extrajudicial imposition of death sentences on U.S. citizens along with civilians of other nationalities. By hiring Mr. Koh to teach International Human Rights Law, NYU Law places its imprimatur not on what Mr. Koh thinks, but rather on what he did.

Actually, no, NYU Law is only placing its imprimatur on what he thinks. If you want to rally against someone who did something, go protest the President. That’s the battle. In fact, it’s massively egotistical to pretend that the legal counsel to the State Department can grind U.S. military action to a halt by the power of their Lawyerlyness and that no one else in the administration could have ever thought to launch an attack without his say so.

Professor Koh didn’t call in drone strikes, he was asked whether he thinks a particular drone strike policy is legal under prevailing international norms. Regardless of how one feels about war generally, whether drones fit within the bounds of a body of law specifically designed to govern killing other people is a scholarly dispute.

This is why, for all the rhetorical jabs I’ve launched at Professor John Yoo over his interpretation of what makes for “legal” torture, I’ve never joined the critics who want to ban him from civil society for writing a legal memo. And that memo was a much greater departure from the international legal consensus than the drone policy. Lawyers advance positions on behalf of their clients, they don’t actually take the action. Calling for the heads of Professor Koh or Professor Yoo over their legal counsel is like declaring Johnny Cochran a murderer because he helped get O.J. off.

To borrow from a great Patton Oswalt routine, when it comes to State Department legal advice, it’s “all about coulda not shoulda.” I respect the outrage over America’s seemingly arbitrary (and opaque) use of drone strikes and their aftermath. But Professor Koh wasn’t making the “shoulda” argument for drone strikes, he only told the administration what they could do. Don’t blame the laws of war for providing at least a colorable argument for drone strikes. Or the overarching drone policy for every individual drone strike.

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The U.S. doesn’t have to loose every arrow in its quiver at every opportunity just because it can.

In the meantime, by all means use this event as an opportunity to spread your message about the administration’s policy or to protest the international laws of war themselves, but let’s stop short of calling a lawyer unethical for doing his job.

(The Statement of No Confidence is available on the next page.)

UPDATE (4/8/15 11:47 a.m.): Some of the NYU Law students who signed the statement have alleged harassment and intimidation from NYU faculty. Obviously, this would be inappropriate. That said, let’s remind students that intimidation is more than, “powerful person saying you’re wrong.” Because if that’s your standard, good luck! Dean Trevor Morrison has weighed in and explains both his feelings on Professor Koh’s position and his intentions regarding the intimidation claims. His memo is available here.

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