“Harold Koh, who once called Bush the ‘torturer in chief,’ became one of President Obama’s fiercest defenders of aerial drone strikes.” Tara McKelvey, Interview With Harold Koh, Obama’s Defender of Drone Strikes (April 8, 2012). Koh, you will remember, was one of the harshest critics of the Bush Administration’s “torture memos” written by his former student John Yoo. Then he signed on to the Obama Administration and began to pimp the legal reasoning that justified targeted drone strikes as something other than assassinations.  As the former Dean of Yale Law School, and a highly regarded expert on international law, Koh’s reputation burnished the argument.

Now consider John Yoo. His work on the “torture memos” got his him sued, widely condemned by his fellow academics, including Koh, subject to disbarment actions and generally ostracized by many.* The irony, of course, is that Yoo’s legal work on the “torture memos” resulted in no deaths, while Koh’s work greased the killing of many.

Now, the shoe is on the other foot, sorta. While Koh visited at NYU this semester, some student and faculty members circulated a petition. It states:

Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable[.]”

Zoe Schlanger, Controversy Swirls Around NYU Law Professor Involved in Obama’s Drone Program, Newsweek (April 7, 2015).

Koh had earlier been criticized by a Yale colleague for precisely the same reasons:

Why did he get involved? It’s quite inconsistent with his general work before. Koh’s claim to fame as a law professor has to do with the notion that the way international law and human rights become effective is through internalization in people like the legal adviser at the State Department,” Bruce Ackerman, a Yale law professor, told the Daily Beast at the time. “To put it gently, targeted killings are not acceptable under international law.


This time around, however, the academics came out in full force lauding Koh and decrying the NYU petition.

Koh’s supporters recently released a statement that, while careful to acknowledge the importance of free debate, said, “We think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty.

Nahal Toosi, Harold Koh in the cross hairs, Politico, (April 19, 2015).

As for John Yoo, he takes no pleasure from the misfortunes of Koh, his former teacher and critic. Rather, Yoo said that although he disagrees with Koh on many issues, “the NYU protest strikes me as silly.” Id. Yoo added that “I don’t believe in karma.” Id.

While Yoo may not believe in karma, I know hypocrisy. Why did a large number of academics strive to make John Yoo a pariah while giving Koh a pass? Perhaps there are good reasons. But, somehow, I doubt it.


*”Harold Koh, the former dean of Yale Law School, once railed against the Bush administration’s treatment of terrorism suspects, including deriding legal rationales laid out by a former student, John Yoo. After Yoo left the Bush team to return to teach at the University of California-Berkeley’s law school, he found himself a pariah, with many students unsuccessfully urging the school to drop him for policies they said justified torture.” Nahal Toosi, Harold Koh in the cross hairs, Politico, (April 19, 2015).

7 responses

  1. As a lawyer I have very little patience with other lawyers’ hypocrisy for the simple reason that we have been trained to think and analyze things in a fashion that should make such inconsistencies jump out at us. Even so, amongst the lawyers that I deal with routinely on a legal listserv when it comes to political issues I see them routinely parroting their political party’s talking points without regard to what reasoned analysis would show to be unsupported. Mind you this isn’t something limited to the left or right as I see this again and again by folks on both sides of the aisle. Does anyone have a reasonable explanation why a group of intelligent individuals that have been highly trained to sift through the BS to get to the very heart of legal matters feel compelled to toss out those skills and training to rationalize their political leanings?

  2. This is about how sausage is made. No one, except perhaps the sausage makers themselves, wants to see pig parts cut, chopped, ground up and stuffed into an intestine. Although sausage making, like politics, is the worlds second-oldest profession, and the results can be delicious, the details should not be closely observed by the faint-hearted.

  3. Not only lawyers, but scientists, who are trained to doubt their own arguments, fall prey to motivated reasoning.

  4. You say that Yoo was sued, condemned by fellow academics, subjected to disbarment action, and generally ostracized by many, and then you quote an article calling him a pariah.

    But hold on. Anyone can get sued, and Yoo won his suit. He was not subject to disbarment action, but the OPR recommended he be referred to the Pennsylvania Bar. That recommendation was countermanded. He wasn’t referred for disbarment. He wasn’t literally ostracized (obviously), and to the extent he’s been condemned and figuratively ostracized, so what? Say offensive things and people will be offended. You don’t have the right to expect more. And then the article you quote says he’s a “pariah,” noting that students have unsuccessfully tried to have him fired from his job teaching at UC Berkeley. He is emphatically not a pariah. He is a member of the legal academy. And not at Regent or Liberty or Ave Maria or something. At UC By God Berkeley.

    So the extent of Yoo’s punishment is this: Some people criticized him, some people want him disbarred, some people want him fired, and his victim wanted $1.00 from him, and none of those people got what they wanted, and he sits in an endowed chair at Boalt Hall. God grant us all such retribution for our crimes.

    As for hypocrisy, to the extent it’s the same academics, I agree with you. Academics are not a fungible continuous group, such that “academics” are guilty of hypocrisy if they do something inconsistent with what “academics” did before them. Tell me who attacked Yoo and who defended Koh, and that’s who, specifically, your hypocrites are.

  5. L,

    I am sorry for the late reply.

    I appreciate your correction (really a clarification) of the bar matter.

    I also appreciate that academics are not fungible. I probably painted with too broad a brush.

    By the way, I have no particular sympathy for Yoo. And, I have no particular sympathy (or animus) for Koh. I do find it strange, however, that a large number of academics rushed to support Koh although he supported targeted killings in the Obama administration, when the same was not true for Yoo regarding his authorship of the “torture memos” in the Bush administration. There may be principled reasons for this disparate treatment, but it would helpful if a reasonably objective and knowledgeable person would explain them.

    Thanks for taking the time to write.

    All the best.


  6. I’m not sure your premises are all true. Certainly there weren’t a large number of academics defending Yoo’s conclusions as legally correct. But I think a sizable number of academics stood up for him in the name of academic freedom, even as they believed he was wrong. I may be mistaken, of course.

    But why not just say what you appear to be dancing around? It’s obvious enough. Yoo worked for Bush and Koh worked for Obama, and these academics are Democrats/liberals/”leftists”/progressives/Obama supporters, and therefore they’re eager to criticize a vile Bush advisor and not a vile Obama advisor. I can give you ten thousand examples of Democrats/liberals/”leftists”/progressives/Obama supporters criticizing the right and giving a pass to the same bad behavior on the left. And I can give you ten thousand examples of Republicans/conservatives/”libertarians”/Bush supporters criticizing the left and giving a pass to the same bad behavior on the right. It’s a bad thing, and I’m not saying the first twenty thousand examples excuse the twenty-thousand-and-first, but unfortunately it’s also wholly unremarkable.

    There is an alternative: Society really treats killing in combat different than other kinds of killing and other types of violence. If Koh is seen as giving legal cover for a form of warfighting, while Yoo is seen as giving legal cover for a form of off-battlefield barbarism, there need not be any hypocrisy in differentiating.

    Another possibility: Maybe some of these academics think Yoo was wrong and Koh was right. The two legal questions are not really related, and although I happen to think Koh’s opinion was wrong, it wasn’t as obviously wrong as Yoo’s. There’s only hypocrisy if someone thinks they were both wrong, but then treats them differently.

    One last thing – If the academics came out “in full force” in defense of Koh, who signed the NYU petition?

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