State Department Legal Adviser Harold Koh

At one extreme of U.S. foreign policy are those who say, “Nuke ‘em back to the stone age.” At the other are those who want a principled, restrained U.S. to shame enemies into submission by marshaling international clucking against them.

According to his critics at least, State Department Legal Adviser Harold Koh embodies the latter position.

Koh may disagree with that assessment, but he has sometimes let his professorial taste for provocative phrasing supply detractors with ammunition for painting him as a man eager to subordinate the U.S. Constitution to vague, unenforceable notions of human rights and international law.

One famous example has Koh naming the U.S. in his “Axis of Disobedience” along with North Korea and Saddam Hussein’s Iraq. Another is Koh’s assertion that sharia, the Muslim holy law, may on occasion be applied to govern legal decisions in American courts.

Koh would protest that these statements were taken out of context. What is indisputable is that the Korean American who served for five years as Dean of Yale Law School has been harsh and vocal in his criticisms of the U.S. invasion of Iraq in 2003 and subsequent efforts to justify waterboarding and other physical interrogation techniques used against al Qaida detainees at Abu Ghraib Prison.

“We should resist the claim that a War on Terror permits the commander in chief’s power to be expanded into a wanton power to act as torturer in chief,” Koh writes in an article published in Indiana Law Journal — showing again his weakness for flamboyant phrasing that is uncommon in an eminent Yale legal scholar, much less one who served for three years as an Assistant Secretary of State in the Clinton Administration.

At bottom Koh has been an insistent advocate of a U.S. that not only “obeys global norms” and submits to “transnational legal process”, but makes itself into a shining example and the most powerful global exponent of human rights and international law.

“Adhering to international standards strengthens those who do and isolates those who don’t,” is a quote from Obama’s Nobel Prize speech that sums up Koh’s belief in the national security advantage of working through a system of international law rather than taking a unilateral approach. This internationalist approach, Koh argues, is founded on nothing more liberal than the vision of universal rights and rule of law on which the founding fathers based the Declaration of Independence and the Constitution.

Koh also echoes his other famous boss and client, Secretary of State Hillary Clinton, in arguing that “a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves.”

What worries critics is that the post of State Department Legal Adviser holds Koh out to the world as the top U.S. lawyer in the international legal system.

“This is not a desk job,” groused conservative commentator Steven Gross when Koh was nominated for the post by President Obama in March of 2009. “This guy will be the face of American international law around the world. The top legal adviser at State travels extensively and is involved in international legal negotiations, treaties and in major United Nations conferences.

“The president should have the right to choose the most conservative or liberal legal advisers to give them advice, but this is much more than that. The concern is that he cares as much about — if not more about — international law and integrating that into the American judicial system than he does about protecting American prerogatives and American sovereignty.”

Notwithstanding Koh’s penchant for raising red flags with provocative phraseology, his impeccable credentials and the high respect he enjoys in international law circles ensured confirmation by a largely partisan vote of 62-35 on June 25, 2009, three months after his nomination. As the Obama Administration’s top voice in matters pertaining to U.S. interests under international law, in March 2010 Koh surprised critics by arguing eloquently for the legality of using missiles fired from drones to target al Qaida officials in Pakistan. More recently, Koh took the lead in using the force of international law to bring about the imprisonment of Julian Assange in Britain after WikiLeaks facilitated the publication of tens of thousands of U.S. diplomatic cables.

Harold Hongju Koh was born in Boston, Massachusetts on December 8, 1954 to Korean parents who, together, became the first Asian Americans to teach at Yale. At the time Harold was born his father was a S. Korean diplomat serving Korea’s first democratic government. When that regime quickly collapsed the elder Koh won asylum in the U.S., allowing the family to stay in the U.S. The family moved to New Haven where both parents were hired to teach at Yale through the efforts of then deputy National Security Adviser Walt Rostow and his brother Eugene, then dean of the law school. The elder Koh and wife Hesung Chun Koh taught a course on East Asian law and society for three years. Harold was six then, one of six Koh siblings. ‘‘It was my first experience with American goodness,’‘ Koh told the New York Times.

At around that time Harold was afflicted with polio and was forced to have two operations. Despite leg braces and a lengthy course of physical therapy, Koh still walks with a limp.

Koh graduated from New Haven’s Hopkins School in 1971. He majored in government at Harvard where he graduated summa cum laude and Phi Beta Kappa in 1975. He took advantage of a scholarship to study at Oxford for two years before entering Harvard Law School in 1980. He did well enough there to earn a clerkship with Supreme Court Associate Justice Harry Blackmun and spend two years as an associate at the D.C. office of the prestigious international law firm of Covington & Burling.

In 1983 Koh began a two-year stint as attorney-adviser to the Office of Legal Counsel (OLC) in the United States Department of Justice under Reagan, then joined the Yale Law School faculty in 1985 where he distinguished himself as a brilliant legal scholar, an admired professor and an effective human rights advocate. In 1992 he led a group of Yale students and human rights lawyers in litigation against the United States government to free Haitian refugees interned at Guantanamo Bay, Cuba. The suit ended in 1994 with the refugees’ release. It also caught the eye of President Clinton who nominated Koh the Assistant Secretary of State for Human Rights. Koh was confirmed unanimously on October 21, 1998. He left the post at the end of Clinton’s second term in January of 2001 and returned to teach at Yale where he was named dean in 2004.

Despite Koh’s clear political leanings on the issue of the role international law should play in U.S. foreign policy, he won respect for being politically impartial as Dean. When critics accused him of having politicized Yale Law School during his term, the Yale Conservative Law Students organization came to his defense. “Dean Koh has been very supportive of conservative students and conservative student organizations,” they said, adding, “Dean Koh is one of the brightest legal minds of his generation, a credit to the profession we look forward to joining, and an able and effective public servant.”

Harold Koh’s achievement is practically commonplace in his distinguished family. Brother Howard Kyongju Koh is currently the U.S. Assistant Secretary of Health after a career as a Harvard University public health professor and Massachusetts Public Health Commissioner. Sister Jean Koh Peters also teaches at Yale Law School. Wife Mary-Christy Fisher, with whom Koh has two children, is an attorney for the New Haven Legal Assistance Association.