Harold Hongju Koh

Legal adviser to the State Department (since March 2009)

(Yale Law School)

Why He Matters

Few Obama appointees have drawn as much scrutiny as Koh. A former Yale law school dean and ex-State Department official, Koh is one of the leading U.S. experts on international law, national security law and human rights. He has argued before the U.S. Supreme Court, testified in front of Congress, and written eight books and countless law review articles. He advises Secretary of State Hillary Rodham Clinton on every legal issue, formulatating foreign policy and promoting U.S. participation in the development of international law.

Koh's appointment was praised by legal scholars and law professors alike. "President Obama could have named a pair of mild-mannered tax attorneys to these high government positions," wrote Slate's Dahlia Lithwick about Koh and Dawn Johnsen, Obama's pick to head the Justice Department Office of Legal Counsel. "Instead, he opted to pick precisely the sorts of people we most need there: fierce advocates who care deeply about these agencies and the law as it applies to them."

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Background

At a Glance

Career History: Dean, Yale Law School (2004 to 2009); Professor, Yale Law School (since 1985); Assistant Secretary for State for Human Rights (1998 to 2001)
Birthday: December 8, 1954
Hometown: Boston, Mass.

Alma Mater: Oxford University, M.A., 1996; Harvard Law School, J.D., 1980; Oxford University, B.A., 1976; Harvard College, B.A., 1975
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Path to Power

Koh was born in Boston. His father, a Korean diplomat, was working in New York when a military coup overturned the fledgling democracy there. The elder Koh refused to serve a dictatorship, and never returned to his home country.

Koh and his five siblings grew up around universities, where both of his parents taught. He shared a room with his brother Howard, who was also nominated to an assistant secretary positionat Obama's Health and Human Services Department. He has always been an over-achiever - during an awards night in middle school, Koh's friends bought him a small wagon so that he could haul home all of his prizes.

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Koh attended Harvard as an undergraduate. He started out as a physics major, but switched because he wasn't that good at the subject, he told an interviewer in 2003. "Quite literally, one day I was going to a physics lab and somebody else was going to a U.S. and East Asia course, and I turned around and went to that course, and I haven't looked back," he said.

After graduating in 1975, he spent two years at Oxford University as a Marshall Scholar before moving back to Boston, where he earned his J.D. at Harvard University. After graduating in 1980, he clerked for U.S. Court of Appeals Judge Malcolm Wilkey and Supreme Court Justice Harry Blackman. After a stint with Covington and Burling, Koh joined the Justice Department in 1983 as an attorney-adviser in the Office of Legal Affairs under the Reagan administration. There, he helped ratify the Genocide Convention, which labeled genocide a crime that must be punished, and worked on a case against the U.S. by Nicaragua in the World Court.

Yale Law and Clinton State Department

Koh became a professor at Yale Law School in 1985, where he taught international law and international business. Eventually, he decided to focus more closely on human rights by founding a clinic to litigate cases. In 1993, he led the fight to shut down the first U.S. detention camp established in Guatanamo Bay, Cuba, which held Haitian refugees. Koh sued both the George H. W. Bush and the Clinton administrations to establish that the prison was not exempt from U.S. law.

In 1998, Koh was invited by a former student to serve as Secretary of State Madeline Albright's assistant secretary of Human Rights. According to Koh, "I said [to the student], 'you know I spend most of my time suing the Clinton administration.' He said, 'that's why we want you. You're nobody's yes-man." Koh was confirmed unanimously for the job. During his time in the State Department, he helped address crises in East Timor, Sierra Leone, and Kosovo.

Koh returned to academia in 2001 determined to build stronger bridges between "people with ideas and people with influence. He told an interviewer, "when I was in the government, every day matters would arise in which I'd think somebody must have written about this. So I would send my staff out to look for articles and books. But very often what they came back with was so tangential and so abstract that I couldn't use it." He said that as a professor, he has focused on explaining why the law should be heeded by decision-makers.

In 2004, Koh was named Yale Law School dean. He was wildly popular with most students, though some have said he had a "chilling effect" on conservative thought on campus. "My one misgiving about his is that he tends to wear his convections on his sleeve," Yale Law School Professor Peter Schuck told the Yale Daily News. "The Law School would be a stronger institution if there were more ideological diversity."

As dean, Koh ardently supported a legal basis for gay rights. He advocated efforts to ban military recruiters from campus because the Pentagon wouldn't sign a non-discrimination pledge due to its 'don't ask, don't tell' policy. However, an Appeals Court forced the school to open its doors to the military or forfeit federal money. In a statement after the ruling, Koh said he was disappointed by the decision and that he would work to ameliorate its impact.

Conservative Opposition

Koh's 2009 State Department nomination has come under fire from some right-wing opponents, who call him "dangerous and anti-American" and an "unhinged leftist." The opposition heated up when the New York Post ran a piece alleging that Koh told an audience at a 2007 speech that Sharia Islamic law could be used to govern cases in U.S. "It's a job where you want a strong defender of America's sovereignty. But that's not Koh," the author wrote. "Score one for America's enemies and hostile international bureaucrats, zero for American democracy."

Many people who attended the event denied Koh made any such claim, and he has never made that argument in his published work. A spokeswoman for Koh said she couldn't confirm the incident. "I had heard that some guy . . . had asked a question about sharia law, and that Dean Koh had said something about that while there are obvious differences among the many different legal systems, they also share some common legal concepts," she told the New York Post.

"I hate to see the blogosphere drive questions about this nominee," said Deborah Pearlstein, an international law scholar. "There are legitimate areas of debate on matters of international law, but whether or not he would impose Sharia law in the United States is not one of them." The White House had defended Koh, calling the attacks "a gross mischaracterization."

Koh has been mentioned as a possible Supreme Court nominee.

The Issues

The major criticisms of Koh revolve around his support of trans-nationalism, or the incorporation of international laws into U.S. legislation and vice versa. "Transnational law matters because it increasingly influences laws and policies that govern us," Koh wrote in a 2005 legal journal article.

Koh supports developing a more internationally-focused U.S. legal system, which he imagines as an "exoskeleton" that guides countries' interactions. "We need these institutions, even if they cut our own sovereignty a bit," he said in a 2003 interview. The current international law system is not perfect, he said, but that isn't a sign that it has failed. "It's a little bit like discovering the speed limit of 60, but people are going 65. The fact that the law is not working perfectly doesn't mean that it's not having a restraining force," he said in a 2003 interview. He also advocates incorporating a more international curriculum into U.S. law schools.

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Some conservatives have charged that Koh wants to subjugate Americans to international regulations at the expense of the U.S. legal system. The National Journal's Ed Whelan argued that Koh wants to revolutionize the American legal system so that Americans are forced to live under countries' laws. At a congressional hearing in 2005, he argued that Alberto Gonzales should not be appointed the George W. Bush administration attorney general because he supervised the drafting of 2002 memos that argued that violent and painful coercive interrogation techniques could be used on suspected terrorist detainees. Koh said Gonzales overlooked the rule of law and the U.S. constitutional ban on cruel and unusual punishment by approving the memo, which was later repudiated by the Justice Department Office of Legal Counsel.

Koh has advocated for a justice system for enemy combatants that resembles those used in courts-martial under the Uniform Code of Military Justice. He believes enemy combatants must receive a fair and timely public hearing before an independent tribunal, be presumed innocent, have the chance to examine evidence and witnesses and the right not to testify against themselves or to confess guilt.

Human Rights

When Koh was Clinton assistant secretary for human rights, he laid out four principles for the U.S. to follow. He said the country should focus on promoting honesty in human rights, advocating for violators to take accountability for past violations, speaking out against countries that are violating human rights and promoting democracy. He has argued that promoting a democratic government is particularly important for long-term human rights development. "If you want a healthy government, you have to deal with the symptoms of an unhealthy government," he said in 2003.

The Bush Administration and the Rule of Law

In Koh's 1990 book, The National Security Constitution, he argues that foreign policy should be made by a combination of Congress, the courts and the president. The lack of this dynamic can lead to foreign policy failures like the Iran-Contra crisis, he contended. During the George W. Bush administration, Koh argued that the president had overstepped the bounds of executive power and said that its disregard for international law had earned it a place along with North Korea in the "axis of disobedience.

However, Koh has never said that international law should subsume American law.

Torture and Enemy Combatants

Koh was one of the earliest and fiercest critics of the Bush administration's policies on torture, which he called "illegal and totally abhorrent to our values and constitutional traditions."

Koh also said the Bush administration's detention, interrogation, and surveillance policies had imposed "unnecessary, self-inflicted wounds, which have gravely diminished [the U.S.] global standing and damaged our reputation for respecting the rule of law," according to the New York Times.

The Network

Koh's brother Howard Kyongju Koh was nominated as an assistant secretary for health at the Department of Health and Human Services. "Our interests are very similar. Howard is interested in healthy bodies and I'm interested in a healthy body politic," Harold told the New Haven Register.

As a member of the Clinton administration's State Department, Koh worked with Madeleine Albright and current Secretary of State Hillary Rodham Clinton. He has also worked with U.N. Ambassador Susan E. Rice.

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