The state department legal adviser's office: Eight decades in peace and war

Georgetown Law Journal

Volumn 100, Issue 5, 2012, Pages 1747-1781

  Koh, Harold Hongju ^a  

^a Department of State ^*  (United States)

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EID: 84864713185     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (57)

1. Harold Hongju Koh, Legal Adviser, Remarks at the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/ releases/remarks/139119.htm.
2. MICHAEL P. SCHARF & PAUL R. WILLIAMS, SHAPING FOREIGN POLICY IN TIMES OF CRISIS: THE ROLE OF INTERNATIONAL LAW AND THE STATE DEPARTMENT LEGALADVISER (2010).
3. Richard B. Bilder, The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs, 56AM. J. INT'L L. 633, 634 (1962).
4. An Act for the Grading and Classification of Clerks in the Foreign Service of the United States of America, and Providing Compensation Therefor, Pub. L. No. 71-715, § 30, 46 Stat. 1207, 1214 (1931).
5. GREEN H. HACKWORTH, DIGEST OF INTERNATIONAL LAW (8 vols., 1940-44). By the device of numbering these office traditions, I seek deliberately to highlight unwritten "Canons of L" that I had sensed from the outside but had not come to understand fully until I began to serve in the Legal Adviser's Office.
6. SCHARF & WILLIAMS, supra note 2, at xix.
7. Living History Interview with Abram Chayes, 7 TRANSNAT'L L. & CONTEMP. PROBS. 459, 480 (1997).
8. See, e.g., ABRAM CHAYES ET AL., INTERNATIONAL LEGAL PROCESS (2 vols., 1968)
9. see also Harold Hongju Koh, Why Do Nations Obey International Law?, 106 YALE L.J. 2599, 2617-29 (1997) (describing the evolution of the International Legal Process view).
10. See SCHARF & WILLIAMS, supra note 2, at 18 ("The Office of the Legal Adviser also serves as a training ground of sorts for future professors of public international law. L alum, including the Legal Advisers, have contributed substantially to the body of public international law scholarship, with more than 1,000 articles and books authored by former L lawyers.").
11. John R. Stevenson, Statement of the Legal Adviser, 64 AM. J. INT'L L. 933 (1970).
12. Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995).
13. The evolution and importance of these two human rights briefs is described in Harold Hongju Koh, Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture, in INTERNATIONAL LAW STORIES 45 (John E. Noyes, Laura A. Dickinson & Mark W. Janis eds., 2007).
14. For the most recent U.S. government court filing in this line, submitted after this speech was delivered, see Brief for the United States as Amicus Curiae Supporting Petitioners, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Dec. 21, 2011).
15. See Davis R. Robinson, The Reagan Administration, in SCHARF & WILLIAMS, supra note 2, at 55, 55-56, 60-63 (discussing these developments). Ironically, it was through the overwork of the office in this period that I, as a young Justice Department attorney at the Office of Legal Counsel, had my first experience with L, when I was detailed to L in 1984 on temporary duty to help fill in for lawyers who had been dispatched to The Hague to work on these cases.
16. The Role of the Legal Adviser of the Department of State: A Report of the Joint Committee Established by the American Society of International Law and the American Branch of the International Law Association, 85 AM. J. INT'L L. 358, 361 (1991).
17. See, e.g., Abram Chayes & Antonia Handler Chayes, Testing and Development of "Exotic" Systems Under the ABM Treaty: The Great Reinterpretation Caper, 99 HARV. L. REV. 1956 (1986).
18. See William H. Taft IV, The Bush (43rd) Administration, in SCHARF & WILLIAMS, supra note 2, at 127, 129-30.
19. Perhaps the best known example is Will Taft's detailed January 11, 2002 memorandum responding to the January 9, 2002 memorandum by John Yoo, then-Deputy Assistant Attorney General of the Office of Legal Counsel at the Department of Justice. In arguing that Yoo's analysis was "seriously flawed," Taft wrote: "In previous conflicts, the United States has dealt with tens of thousands of detainees without repudiating its obligations under the [Geneva] Conventions. I have no doubt we can do so here, where a relative handful of persons is involved." Memorandum from William H. Taft, IV, Legal Adviser, U.S. Dep't of State, to John C. Yoo, Deputy Assistant Att'y Gen., Office of Legal Counsel, U.S. Dep't of Justice 1, 2 (Jan. 11, 2002), available at http://www.torturingdemocracy.org/documents/20020111.pdf. Taft ended on this memorable and poignant note: "Your draft acknowledges that several of its conclusions are close questions. The attached draft comments will, I expect, show you that they are actually incorrect as well as incomplete.We should talk
20. SCHARF & WILLIAMS, supra note 2, at xix.
21. See SCHARF & WILLIAMS, supra note 2, at 158 (remarks of Conrad Harper).
22. President Barack H. Obama, Nobel Lecture: A Just and Lasting Peace (Dec. 10, 2009), available at http://www.nobelprize.org/nobel-prizes/peace/laureates/ 2009/obama-lecture-en.html.
23. See Letter of Transmittal from President Ronald Reagan to the Senate of the United States (Jan. 29, 1987), reprinted in 81 AM. J. INT'L L. 910, 911-12 (1987).
24. Michael J. Matheson, Remarks, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y 419 (1987).
25. See, e.g., Libya and War Powers: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. (2011) (statement of Harold Hongju Koh) [hereinafter Koh Libya Testimony], available at http://foreign.senate.gov/imo/media/doc/Koh- Testimony.pdf; Koh, supra note 1
26. Harold Hongju Koh, Statement Regarding Use of Force in Libya (Mar. 26, 2011), available at http://www.state.gov/s/l/releases/remarks/159201.htm
27. Harold Hongju Koh, The Lawfulness of the U.S. Operation Against Osama bin Laden, OPINIO JURIS, May 19, 2011, http://opiniojuris.org/2011/05/19/the- lawfulness-of-the-us-operationagainst-osama-bin-laden/
28. Harold Hongju Koh, Statement Regarding Syria (Mar. 30, 2012), available at http://www.state.gov/s/l/releases/remarks/187163.htm.
29. Confirmation Hearing on the Nomination of Alberto R. Gonzales to Be Attorney General of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 80 (2005) (statement of Sen. Lindsey Graham).
30. William H. Taft IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 YALE J. INT'L L. 319, 322 (2003).
31. Hamdan v. Rumsfeld, 548 U.S. 557, 633 (2006) (alteration in original) (quoting Taft, supra note 47).
32. On March 7, 2011, just a few days after these remarks were delivered, the Obama Administration announced that the "[t]he U.S. Government will . . . choose out of a sense of legal obligation to treat the principles set forth in Article 75 [of Additional Protocol I] as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well." Press Release, White House, Fact Sheet: New Actions on Guantánamo and Detainee Policy (Mar. 7, 2011), http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions- guant-namo-anddetainee-policy. The Administration further urged the Senate "to act as soon as practicable" to provide its advice and consent to ratification of Additional Protocol II. Id.
33. For a fuller description of current State Department practice, see Harold Hongju Koh, Foreign Official Immunity After Samantar: A United States Government Perspective, 44 VAND. J. TRANSNAT'L L. 1141 (2011), from which the following discussion directly derives.
34. Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010)
35. quoting Ex parte Peru, 318 U.S. 578, 587 (1943).
36. Id. (quoting Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945) (alteration in original)).
37. Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dep't of State, to Philip B. Perlman, Acting Att'y Gen., U.S. Dep't of Justice (May 19, 1952), reprinted in 26 DEP'T OF STATE BULLETIN 984 (1952). Forgive me if I note with pride my own fleeting personal connection with Jack Tate. Born in Bolivar, Tennessee, in 1902, Tate graduated from the University of Tennessee at Knoxville in 1924, and after his historic service as Acting Legal Adviser moved to my hometown, New Haven, Connecticut, where he served for many years as the beloved Deputy Dean of Yale Law School. In that role, Tate showed great kindness to my family, and his wife Elizabeth became my older sister's revered and favorite high school English teacher.
38. Isbrandtsen Tankers v. President of India, 446 F.2d 1198, 1201 (2d Cir. 1971)
39. Samantar, 130 S. Ct. at 2291.
40. Brief for the United States as Amicus Curiae Supporting Affirmance, Samantar v. Yousuf, 130 S. Ct. 2278 (2010) (No. 08-1555).
41. Statement of Interest of the United States of America at 7, Yousuf v. Samantar, No. 1:04 Civ. 1360 (E.D. Va. Feb. 14, 2011) [hereinafter Samantar Statement of Interest]
42. see also Brief for the United States as Amicus Curiae Supporting Appellees at 5, Yousuf v. Samantar, No. 11-1479 (4th Cir. Oct. 24, 2011).
43. Samantar Statement of Interest, supra note 62, at 7-9.
44. Order, Yousuf v. Samantar, No. 1:04 CV 1360 (E.D. Va. Feb. 15, 2011).
45. Samantar, 130 S. Ct. at 2284 (internal quotation marks and brackets omitted).
46. At this time, we also continue to work vigorously to secure enactment of consular notification legislation that would implement the United States' obligations under the ICJ's outstanding judgment in Case Concerning Avena and Other Mexican Nationals (Mexico. v. United States), 2004 I.C.J. 12 (Mar. 31).
47. See, e.g., Fulfilling Our Treaty Obligations and Protecting Americans Abroad: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011) (statement of Patrick Kennedy, Under Sec'y for Mgmt., U.S. Dep't of State), available at http://www.state.gov/m/rls/remarks/2011/169182.htm.
48. Grand River Enterprises Six Nations, Ltd. v. United States, Award (ICSID Jan. 12, 2011), available at http://www.state.gov/documents/organization/156820. pdf.
49. See generally The U.S. and the International Criminal Court: Report from the Kampala Review Conference (June 16, 2010) (remarks of Harold Hongju Koh and Stephen J. Rapp), available at http://www.asil.org/files/Transcript-ICC-Koh- Rapp-Bellinger.pdf.
50. As an academic, I had discussed some of the challenges of addressing the United States' relationship with the ICC and other interna- tional tribunals in Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1503-09 (2003).
51. SCHARF & WILLIAMS, supra note 2, at 156-57 (remarks of Michael J. Matheson).
52. See Koh Libya Testimony, supra note 45.
53. Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention: Hearing Before the S. Comm. on Foreign Relations, 112th Cong. (2012) (written testimony of Hillary Rodham Clinton, Sec'y of State, U.S. Dep't of State), available at http://www.foreign.senate.gov/imo/media/doc/REVISED-Secretary-Clinton-Testimony. pdf.
54. See Brief for the United States as Amicus Curiae in Support of Neither Party, European Community v. RJR Nabisco, Inc., No. 11-2475 (2d Cir. Oct. 4, 2011).
55. See Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 284 (2d Cir. 2011) (discussing effort to execute default judgment upon two Chinese giant pandas on loan to the National Zoo inWashington).
56. See generally Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 HOUS. L. REV. 623 (1998)
57. Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996).