Targeted Killing

The Strange Case of Harold Koh at NYU

By Benjamin Wittes
Tuesday, April 21, 2015, 1:16 AM

I would normally lay off writing about the flap that has erupted at NYU over Harold Koh's presence there. Academic politics don't interest me much. Student protests interest me even less. And student protests based on false facts that, in turn, lead to academics piously leaping to the defense of one another's virtues and students claiming intimidation . . . well, life is short.

But the controversy over Koh, which Politico also covered here and has sparked a lot of discussion over at Just Security, seems to me predicated on an amusing layering of nonsense that is worth stripping away---if only for the sake of clarity.

The first layer of nonsense is that, as the student protesters put it, Koh was "a key legal architect of the Obama Administration’s extrajudicial killing program during his time as State Department Legal Adviser." No, he wasn't. Those who have defended Koh have tended to stress that he was "a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue." They are being delicate: Koh was an obstructionist.

In fact, Koh fought tenaciously to limit drone strikes. He greatly irritated---sometimes infuriated---his counterparts in the interagency process with both his substantive legal positions and his frankly bullying style of engagement. The proper criticism of Koh is not that he was a shill for the drone program, though he did speak at ASIL on the subject. It is that he threw significant roadblocks in the way of the program and gummed up the works with policy objections masked as legal objections. Many people in government object to the the role Koh played while in office. I haven't heard any of them complain, however, that he was an enabler.

The second layer of nonsense is that Koh is some kind of victim here of an academic culture that has trouble acknowledging the complexities of government service. Let's be candid: Koh is reaping what he sowed. Nobody in academia was harder on those who, in the service of the prior administration, took positions with which Koh disagreed. Koh was not more careful with his own rhetoric than his student critics are with theirs about him. And since leaving government, he has, with what has become a laughable silliness, insisted that there are no contradictions between the positions he took prior to his service and the positions he took in office. The students are being ridiculous, but I have heard Koh himself sound more similar to than different from those who now oppress him.

The third layer of nonsense is the notion that students are facing "intimidation" or retaliation for their protest. The astonishing sense of entitlement on the part of a group of students to peddle false information and not be disagreed with or corrected---and to regard any expression of disagreement as intimidation---beggars belief. The students complain that Ryan Goodman wrote a letter suggesting that they not support the petition ("Due to the power imbalances between students and faculty, we find his request inappropriate."). They are upset that the law school's dean, Trevor Morrison, criticized the letter. This is not intimidation. It's disputation.

I'm left finding that the public voice I most sympathize with in this conversation is that of John Yoo, who penned the following:

While I don’t agree with Harold on many issues, the protest strikes me as silly. A university should bring forth all points of view, even those — especially those — that students, alumni, and faculty do not like. How better could law students learn than from someone like Harold, whose role as a government lawyer may have run counter to his views as a legal scholar and activist? If there are students, faculty, and alumni who think Harold should be excluded from the NYU community, they may want to go to a university that cares more about protecting their feelings than improving their minds. But they will be worse off for it.