War Powers Resolution: Libya

Paul Starobin on Harold Koh

By Benjamin Wittes
Sunday, August 7, 2011, 10:05 AM

Paul Starobin has a piece in the New York Times pondering the flip-flop of Harold Koh on war powers:

During the Bush administration, he was legendary for his piercing criticisms of “executive muscle flexing” in the White House’s pursuit of the so-called war on terror.

Even more, he was described by those who knew him as the inspiration for a generation of human rights activists and lawyers passionately committed to a vision of a post-imperial America as a model of constitutional restraint. His colleagues viewed him as not only a brilliant scholar but a “liberal icon.”

Suddenly, though, Mr. Koh seems to be a different person.

Starobin quotes several friends and former colleagues of Koh's waxing indignant at the shift (Mary Ellen O'Connell: “Where is the Harold Koh I worked with to ensure that international law, human rights and the Constitution were honored during the Bush years?”). And Starobin considers a few possible explanations for the transformation. He's an institution man; he's very loyal; "A mix of partisan and personal sympathies could be at work."

One explanation Starobin doesn't consider is the possibility that Koh is a lawyer with a client, and that the role of the academic and the role of the government lawyer differ. What's more, Starobin misses an important dynamic about Koh: He has fought tenaciously within the administration for a lot of the things his external critics would want him to be representing publicly (though, admittedly, not on war powers and Libya, the specific issue about which Starobin is writing). In fact, on many of them, he has fought so tenaciously that he has created significant friction within the administration--some of which has spilled out in public at times.

The problem with Koh is not that he went into the administration and there changed his positions on certain issues. While that has certainly happened, there simply has to be space both for people with views to take on government (or private) clients whose interests require public positions at odds with one's academic views. There also has to be space for people to argue internally for one thing, lose a debate, and then go out and represent the policy in public.

The problem with Koh is that he personally did so much to constrict the space for exactly this sort of behavior in government lawyers before he went into government. What Starobin admiringly calls Koh's "legendary . . . piercing criticisms of 'executive muscle flexing' in the White House’s pursuit of the so-called war on terror" were often, in fact, bullying and blustering efforts to delegitimize positions with which Koh disagreed and to attack those who took those positions. Koh sometimes did so, I might add, with remarkably poor command of relevant facts and law that simply did not support the positions he treated publicly as orthodoxies from which one strayed at peril of his wrath. (Full disclosure: While I have never been a government lawyer, I have been on the receiving end of one of Koh's public outbursts, and it was a singularly unpleasant experience.) This sort of pressure, particularly when it comes from the dean of the Yale Law School, does not make it easier for people in government to represent government clients.

Koh's problem, in my view, is not that he has changed position situationally or taken on a government client with interests and positions that diverge from his stated prior views. It is that he spent years denying others the latitude to do the same.