Harold Koh, eight months into his tenure as the top lawyer for the U.S. State Department, invoked the imagery of a snowstorm today in explaining why the Obama administration has not made as much progress on national security issues as some liberals had hoped.
“It takes a lot more time to dig out from a snowstorm than it does for the snow to fall,” Koh told a gathering of international lawyers at the Washington office of Arnold & Porter.
The former dean of Yale Law School spoke alongside his State Department predecessor, John Bellinger III, who is now a partner at Arnold & Porter. It was a rare public dialogue between two lawyers who have advised U.S. secretaries of state, and it was a chance for Bellinger to turn the tables on Koh, a harsh critic of the Bush administration’s handling of international law.
Why, Bellinger asked, has the Obama administration not acted swiftly to forge stronger ties with multilateral institutions, such as the International Court of Justice, and to clear up lingering disputes in international law, such as the legality of U.S. predator drones?
Much of the reason, Koh replied, is that addressing those issues often requires action by Congress. For example, legislation related to the ICJ has stalled, and any treaties face the even greater hurdle of requiring 67 votes in the Senate.
“Until you have an approach that’s going to work, I think we need to take our time,” Koh said of the ICJ legislation, which would address states’ imposition of the death penalty against foreign nationals.
Koh defended the work of the Obama administration in several areas, including resolving the cases of Guantanamo Bay detainees, amending the authorization for military commissions, and revising the guidelines for invoking the state-secrets privilege in litigation.
But he said that other priorities will take time. “We have been tasked with unwinding policies that we would not have implemented,” Koh said.
As legal adviser to the State Department, Koh manages a staff of 180 lawyers who counsel Secretary of State Hillary Clinton on a wide variety of issues. He held a top position in the department during the Clinton administration, and he has repeatedly popped up on lists of potential Democratic nominees to the U.S. Supreme Court.
The conversation between Bellinger and Koh was recorded for C-SPAN. We’ll link to it when it’s posted.
UPDATE (6:12 p.m.): Click here for a recent op-ed that Bellinger wrote for The New York Times. Among his points: The difficulties of the Obama administration "show that the Bush administration demonstrated a greater commitment to international law in its second term than is generally acknowledged abroad, particularly in Europe, and that there are bedrock domestic political constraints in the U.S. that may prevent the Obama administration from living up to expectations."