HAROLD KOH

• Advocate of transnationalism, a concept that argues in favor of “global governance” as opposed to the constitutional sovereignty of independent nation-states
• In March 2009, President Barack Obama nominated Koh to be the Legal Advisor to the U.S. State Department

Born in Boston, Massachusetts in December 1954, Harold Hongju Koh is an attorney of Korean-American heritage. After earning his J.D. degree from Harvard Law School in 1980, he worked as a law clerk for Supreme Court Justice Harry Blackmun (best known as the author of Roe v. Wade). Koh then went on to hold a variety of positions in private practice, government service, and academia. In 1992 he won the Human Rights Award of the American Immigration Lawyers' Association. From 1998 to 2001, he served as Assistant Secretary of State for Democracy, Human Rights, and Labor in the Bill Clinton administration. He has testified before Congress more than a dozen times. He was the dean of Yale University Law School from 2004 to March 2009, at which time he relinquished that position when President Barack Obama nominated him to be the Legal Advisor to the U.S. State Department.

Koh is an advocate of transnationalism, a concept that argues in favor of “global governance” as opposed to the constitutional sovereignty of independent nation-states. This perspective holds that the world’s most challenging problems -- war, terrorism, “climate change,” hunger, financial and social inequalities, diseases, human rights violations, racism, sexism, and xenophobia -- are too complex and deep-rooted for any single nation-state to address effectively on its own. The solution, says Koh, would be for all members of the international community to recognize a set of supranational laws and institutions whose authority overrides that of any particular government. Koh believes that such laws should “be internalized into the domestic law of even resistant nation-states.”

In March 2007, Koh lamented that under the Bush administration, “we have shifted from diplomacy backed by force to force backed by diplomacy, seeking to build democracy from the top down rather than from the bottom up.” He chastised the U.S. for having “unwisely disengaged from various institutions that promote fundamental human rights, chief among them the International Criminal Court and the newly established [United Nations] Human Rights Council.”

“Repairing America's human rights reputation is one of the most serious problems we as Americans face today,” said Koh in June 2008. “… In the last six years, we have gone from being viewed as the major supporter of the international human rights system to its major target. Our obsessive focus on the War on Terror has taken an extraordinary toll upon our global human rights policy.”

“After September 11,” Koh added, “we were viewed with universal sympathy as victims of a brutal attack. But we have responded with a series of unnecessary, self-inflicted wounds, which have gravely diminished America's standing as the world's human rights leader.” He cited the following examples: “the horror of Abu Ghraib”; “our disastrous policy on Guantanamo”; “our tolerance of torture and cruel treatment for detainees”; “warrantless government wiretapping”; “our attack on the U.N. and its human rights bodies”; “the denial of habeas corpus for suspected terrorist detainees”; and “our counterproductive decision to create military commissions.”

“The strongest argument against military commissions is not legal, but political,” Koh explains. “Military commissions create the impression of kangaroo courts, not legitimate accountability mechanisms.… To truly win a global war against terrorism, the U.S. must not only apply, but also be universally seen to be applying, credible justice. Credible justice for international crimes demands tribunals that are fair and impartial both in fact and in appearance. By their very nature, military tribunals fail this test.”

Koh opposes the use of any form of coercive interrogation against America's enemies. “[I]n just a few short years,” he has said, “we seem to have gone from what was a zero-tolerance policy toward torture, to what now seems to be a zero-accountability policy…. And what impact does this have on our ability to help to solve the acute problems around the world, especially in the Middle East?... More countries in the region simply do not listen to us any more, and openly make moves that go against our stated policies and strategy.”

According to Koh, “[W]e need to stop pushing for double standards in human rights. If we believe that human rights are universal, we must respect them, even for suspected terrorists.... And as a matter of universal principle, we must give all detainees basic humane treatment, however heinous they may be.”

In September 2008, Koh advised: “[A]s soon as the new President takes office, he should issue executive orders: (1) ordering the relevant agencies to begin formally closing the prison camp at Guantanamo by a date certain; (2) directing compliance by all U.S. officials with the Geneva Conventions and the Convention Against Torture …; (3) unequivocally banning the use of torture and cruel, inhuman or degrading treatment (including waterboarding) by any person employed by or under contract to the United States government anywhere in the world …”

President Barack Obama would issue Executive Orders on each of those matters shortly after taking office in January 2009.

In Koh’s view, America's anti-terror efforts have not only sullied the nation's image abroad, but also have "deeply exacerbated distinctions between citizens and aliens within American society with respect to political, civil, social, and economic rights, and contributed to pronounced scapegoating of Muslim, Middle Eastern, and South Asian aliens."

Koh has derided the Patriot Act as legislation that “was created with hardly any deliberation or genuine legislative process,” and which consequently “should really be called the ‘Round-up-the-Usual-Suspects’ Act.”

Koh has spoken out against “indiscriminate racial profiling” by security personnel at airports, favoring instead the use of “behavioral profiling” as an alternative. “If you cross [the border] in England or in Canada,” he explains, “they [security authorities] ask you, ‘Why are you traveling today? Does your story hold together?’ They ask you to produce documents that show that you are who you say you are, and that what you are doing makes sense given your own stated objectives.”

In 2004, 2005, and 2006, Koh played an active role (as a speaker and/or moderator) at the national conventions of the American Constitution Society.

Koh has authored or co-authored several books, including The National Security Constitution: Sharing Power after the Iran-Contra Affair (1990); Transnational Legal Problems (1994); and Deliberative Democracy and Human Rights (1999).