BY MATTHEW HUTCHINS
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For those who criticize President Barack Obama ’91 for showing more continuity with the Bush Administration’s policies than change, Harold Hongju Koh ’80 has one word. “Duh.”
Koh, who was the Dean of Yale Law School before entering the Obama administration as Legal Adviser of the Department of State, says that the massive institutional momentum of the federal government means, “You do not turn the Titanic 180 degrees. There will always be more continuity than change from one administration to the next. But the question is what is the approach, and is the approach the same or different.”
Koh appeared at Harvard Law School as the keynote speaker for the Harvard International Law Journal‘s 2010 Symposium, where he outlined what he sees as an emerging “Clinton-Obama Doctrine” of international engagement, as well as his own role in the Department of State and his conception of how government lawyers shape international law.
As the Legal Adviser of the Department of State, a position he assumed last June, replacing John Bellinger ’86, Koh is tasked with coordinating a multitude of U.S. legal affairs, but whether he is acting as the general counsel to the diplomatic corps, buying land in Beijing, negotiating contracts in Afghanistan, or advising the Secretary of State, he sees his primary role as a defender of U.S. interests.
From his position as an advisor to Secretary Clinton, he sees the emerging Clinton-Obama Doctrine as centering around four key ideas: principled engagement with international organizations and institutions, diplomacy as a critical element of smart power and at the vanguard of foreign policy, strategic multilateralism, and the conduct of U.S. affairs in line with both domestic and international law in a way that follows “universal standards, not double standards.”
As examples of greater international engagement, Koh pointed to the United States’ return to the International Criminal Court, climate change negotiations, the human rights counsel, and numerous other international discussions.
Although Koh has written widely on international law, he said that his own role in the discussion is more that of adviser and facilitator than decision maker or expert. “I am not in the office as Harold Koh the legal expert. I am in the government as Harold Koh the legal advisor. Standing up at a law professors’ conference makes no difference. Legal advice must be based on the reasoned opinions of prior governmental officers.”
Given the body of statutory and case law, as well as policy documents from all branches of government, and faced with the challenges of a serious recession, two armed conflicts, and earthquakes in Haiti and Chile, Koh said that making progress can be extremely difficult. In addition, formulating a new governmental position can be painfully slow as a document progresses through the internal clearance process, the interagency process, the legislative process, the governmental lawyering process, and the intergovernmental process.
Despite all the barriers to change and inevitable delays, Koh believes that government lawyers are crucial to the process of internalizing international norms. Among the important functions government lawyers serve, Koh elaborated upon their role in creative generation of lawful options, channeling actions toward what is legal under international law, determining the applicability of international rules, evaluating customs, nominating international experts, negotiating international texts, and participating in international dispute resolution.
Of these, he put particular stress on option generation as a means of providing advice beyond the mere evaluation of legality. He said that on joining Secretary Clinton’s staff he made it clear that, “If I am to be your general counsel, I must have the freedom, after I have told you whether something is lawful or not, to go one step further as a policy matter to tell you whether this is lawful but awful.”
Koh sees this as an indispensable function that lawyers can provide in their capacity as trusted advisors who take part in important discussions of policy. “The international lawyer is not a potted plant,” Koh argued. “In a crisis, your job is not just to sit there. When the moment arises, speak up!” he exhorted students going into public service. “Speak law to power!”