Non-International Armed Conflict

A Dissenting Word on the Harold Koh Memoranda

By Benjamin Wittes
Monday, March 10, 2014, 2:00 PM

I want to take issue with Peter Margulies’s laudatory remarks this weekend about the Harold Koh memos on extraterritorial application of the ICCPR and the CAT---you know, those memos that mysteriously showed up in the New York Times just as the United States was preparing to present its views on the ICCPR to the UN panel that oversees the treaty.

My concern is not substantive. I am not an expert on the ICCPR or the CAT, and I will leave the debate between Koh and the U.S. government over extraterritorial application of the treaties to those who know the issues better than I do. My concern, rather, is procedural. These memos seem to have been leaked in an attempt to pressure the government to abandon a long-standing legal position---one that has stood across administrations of both parties---and Koh signed one of them on his last day in office in what looks like some kind of effort to bind his successor. It’s a bad way to run a government. And I fear that the ironic result will be to undermine the office Koh used to head.

Let me start with what may sound like a bold claim but actually isn’t to anyone who spends any time talking to lawyers at “L”: I don’t believe these memos represent the considered view of the Legal Adviser’s office. I think they represent the views of Koh and a small group of people around him. The position of the government through administrations of both parties, and held by the career staffs of that office, is that the ICCPR and Article 3 of the CAT (relating to transfers of individuals to countries where they might be subject to torture) do not apply extraterritorially. Koh describes the ICCPR conclusion as "[un]tenable" and "implausible" and has even stronger words about the CAT: “it is not legally available to policymakers to claim such a categorical bar.” And, as I say, I’m not going to get into the merits except to say that I believe there are multiple reasonable---tenable and plausible---readings of these treaties with respect to extraterritoriality, and the long-standing U.S. government position is certainly one of them. For present purposes, my point is that Koh’s criticism is really a criticism of generations of staff at the office he headed, who held these views sincerely over time---and on the strength of whose work many officials have argued publicly for them. The Times story cites an anonymous official “maintain[ing that] the memos were never cleared as the official State Department position, and [saying] agencies had ‘unanimously’ concluded the existing interpretation was sound.”

Second, if there is any kind of contemporary movement within the U.S. government to overturn the prior position, it has an exceedingly weak hand. The delegation that goes to Geneva to represent the United States this week will consist of some very able lawyers and policy officials who will represent the United States well and proudly, I’m sure. But it will not be led by a confirmed Assistant Secretary of State for Democracy, Rights and Labor---as my friend and sometime sparring partner on the subject of autonomous weapons, Tom Malinowski, has yet to be confirmed by the Senate for the job. Nor will it include a confirmed (or even nominated) successor to Koh as State Department Legal Adviser. Nor will it include a confirmed Assistant Attorney General for Civil Rights. Indeed, while someone appears to have leaked the Koh documents to try to move the U.S. government position on this issue, the move has apparently backfired, provoking a White House statement that “The legal position held by prior administrations---Republican and Democratic---is a carefully considered position with a strong basis in the text of the treaty, and there is a very high bar for change under those circumstances." Translation: Koh’s memo was given its due weight and then put in a special file cabinet marked, “To Be Ignored.”

And that would be merely embarrassing for Koh except for one problem: Being ignored on important issues has implications for the legal adviser's status within the U.S. government. These are memos, after all, that are not crafted as representing only the office head and as doing so in contravention of the internal views of career State Department lawyers. They carry the official imprimatur of the office. They are written on its letterhead. And they purport---as do all such memoranda---to have binding effect on the U.S. government on a matter of treaty interpretation. The fact that they seem be having little or no continuing internal effect is bad for the credibility of future legal advisers who will lead that office. It risks contributing to a perception that their advice is politicized or merely hortatory, and it undermines the customary sanctity of their official pronouncements. Indeed, just looking at the series of events, we would have to conclude that a lengthy memo from L means little more than, say, a law review article. The State Department, after all, here officially called "untenable" and "implausible" the very view that was in the end accepted again as the U.S. government position and which its officials will this week once again present internationally. And as best as I can tell, a position it described as “not legally available” to policymakers remains available enough to be the continuing position of the United States.