I agree with Benjamin Wittes that there is an important, even a vital, distinction between being a lawyer in academia and being a lawyer in government with a client interest. And I talked with Harold Koh about this distinction as part of our wider discussion about how he came to his opinion, as the State Department’s legal advisor, that there were no “hostilities” in Libya for the purposes of engaging the War Powers Resolution. In my piece that ran in Sunday’s New York Times he’s quoted saying “I am changing roles” in the shift from the academy to government.
But here’s the thing: On this very particular and quite controversial matter—the ‘no hostilities’ opinion—Harold is not falling back on the explanation that he is acting as a government attorney. To the contrary: He is saying that this opinion squares with his personal convictions about war powers—and more than that, that there is no inconsistency between his vision of war powers as fleshed out in this opinion and his vision as expressed in his past writings on the subject. At one point, I asked him if he’d be making the case against the need for congressional consent of the Libya operation if he was still outside the government, and the commander in chief was John McCain—and he said yes, his opinion would be the same.
While a debate about the different hats an attorney can wear, inside and outside of government, can be illuminating, I think the focus here belongs on the substance of the particular opinion at issue. I tried to make the case in my piece that a worrisome precedent has been set. I’d be interested in hearing from anyone who thinks otherwise. Here’s the opinion, set forth in Harold’s testimony on June 28th to the Senate Foreign Relations Committee. (See p.4 in particular.)
A few thoughts in response:
First, Starobin's point is far stronger if one takes his original article to be narrowly about Libya and "hostilities" than it is if one takes it be about Koh's role in general. Libya is certainly Starobin's only example, and rereading his piece, I can see it as a piece only about Libya and Koh's interpretation of the War Powers Resolution. But truth be told, that's not the way I read it over the weekend. Starobin's opening is by no means limited to the Libya point. He begins by describing Koh, quite accurately, as having been a passionate critic of the Bush administration's anti-terrorism policies, a liberal icon generally, and the mentor of and inspiration for a generation of human rights activists. He then says that Koh has become unrecognizable to some of his former fans--a point that had been made long before Libya even arose. After then bringing Libya into the discussion, he goes on to quote Mary Ellen O'Connell posing a question that does not appear in any sense limited to the Libya war powers issues: “Where is the Harold Koh I worked with to ensure that international law, human rights and the Constitution were honored during the Bush years?” Readers of this blog, for example, know that O'Connell may just as well be talking about targeted killing here as Libya. To the extent one ignores all of this as atmospheric noise and treats Starobin's article as dealing with Libya, his answer strikes me as more or less complete.
Second, I say more or less complete because I don't think it's an entirely adequate answer, even in the context of the Libya debate narrowly, to observe that Koh says that his current position reflects his personal views and is consistent with his past positions. No lawyer worth his salt would acknowledge in any representation that he does not believe the arguments he is making publicly. And most people will most of the time try to reconcile in their own minds their current positions with their past ones. In this case, I think Koh's kidding himself that the reconciliation is possible, but that's his business--a matter for his own conscience. In assessing him as a government lawyer, the ultimate question is not whether he is being consistent with his past academic work. It is whether he is giving faithful advice to and representation of the client.
Third, this brings me to what I think is probably the stronger critique of Koh than that he is betraying his past positions on Libya (or on other matters): that his advice on Libya and "hostilities" has been tendentious. Starobin hints at this point, noting--as has Jack--that both the Justice Department and the Defense Department lawyers rejected his reading of "hostilities." He notes that Koh's position sets a "worrisome precedent," and he closes with the derisive quip that faced with a thorny war powers problem, "an imaginative executive-branch lawyer, in a pinch, can invent an argument that does the trick." But I think it's fair to say that this line of argument is sublimated to Koh's infidelity to his past--the "flip-flop" point. That seems to me backwards. If Koh's arguments on hostilities are tendentious, it will not save them to argue that they are faithful to Koh's own past positions--any more than it ultimately saved John Yoo's OLC memos that they reflected long- and earnestly-held views of executive power. Conversely, if they are appropriate arguments for the State Department legal adviser to be making on behalf of his client--and advice to be giving to the client--they are defensible whether or not they violate every principle in every article Koh has ever written.
My problem with Koh, as I said in my original post, is that while he seems to understand about himself that fidelity to his academic work is not the highest value, he never seemed to understand that fact about the attorneys who came before him.