Harold Hongju Koh Interview: Conversations with History; Institute of International Studies, UC Berkeley

Transnational Legal Process and World Order: Conversation with Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale, October 3, 2003, by Harry Kreisler
Photo by Jane Scherr

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Government Service

Let's start talking about your service in the government, because you actually started early as a law clerk to a Supreme Court justice, right?

My first year I clerked for Malcolm Wilkey, who is a judge of the U.S. Court of Appeals, so, the D.C. circuit. He went on to be ambassador to Uruguay, and very internationalist. He was one of the advisors of the restatement of foreign relations law. I then clerked for Harry Blackman who, among other things, was the most internationalist Supreme Court Justice we've had in some time. Then I worked for a big law firm, Covington and Burling, which was Dean Acheson's firm; and then for the Justice Department in the Reagan administration. There I worked on the suit by Nicaragua against the United States at the World Court, and the ratification of the Genocide Convention, and then I came to Yale and I taught international trade and international business transactions.

After 1990, I decided to do more in the human rights area, and I started, with another colleague, a clinic that would litigate human rights cases. That clinic started out doing alien tort cases, and we ended up representing Haitian refugees, and soon I was representing Haitian refugees on Guantanamo, and argued that case at the Supreme Court. Then we ended up litigating against the Clinton administration.

So it was a big surprise in 1998 when I got a call from my former student, who is Madeline Albright's advisor, and he said, "How'd you like to be Madeline Albright's human rights advisor?" I said, "You know, I spend most of my time suing the Clinton administration." He said, "That's why we want you. You're nobody's yes-man. Everybody knows where you stand, and it will give us credibility to have you." So I went in, and that was during the period of Kosovo, East Timor, Sierra Leone -- the last years of the Clinton administration. I actually think that was a very good time for human rights, particularly looking back on it from post-9/11 perspective.

We'll talk about that in a minute, but let me go back a minute. What you've just described must have given you amazing insight into the differences being in the ivory tower and then being in the halls of power and seeing the very important distinction between theory and practice. Looking back, what are your observations that you want to share with us about the differences between these two worlds?

My father, as I said, was my greatest teacher. In 1974, I was in Korea doing some research for my undergraduate thesis, and there was an attempt on the life of the president, and they imposed martial law. That same summer, Nixon resigned; Gerald Ford became president. I called my father and I said, "Isn't it amazing that the largest country in the world is changing power without any guns in the street or any shots being fired? Korea has never had a peaceful transition of government." He said, "That's the difference between dictatorship and democracy." He said, "In a democracy, when you're president, the troops obey you; in a dictatorship, when the troops obey you, then you're president." That was the first time I had a sense of the importance of understanding how the world works.

Another thing he said was, "Theory without practice is as lifeless as practice without theory is thoughtless." Partly because of that, I became convinced that I had to somehow make my academic work relevant to what was happening in the real world.

When I got to the State Department, I was struck -- I said this in a number of things -- that people with ideas have no influence, and people with influence have no ideas. The people who are making decisions often have no time to consult anything academic. But [even] if they do, it's not written clearly enough for them to be able to apply it. The people with ideas who do have time to think about these things often don't present their ideas in a way that they can be used by those who are trying to make decisions. So I've tried to bridge that gap as much as I can.

You're suggesting that the potential for synergy is very great, but that mediation is required between these two worlds. Is that a fair assessment?

Oh, very much so. When I was in the government, every day matters would arise in which I'd think, "How can I be making this decision in such a short-term focus? Somebody must have written about this. Somebody must have put this into a pattern, and I'd like to know what that pattern is." I would send my staff out to look for articles and books. But very often what they came back with was so tangential and so abstract that I couldn't use it; it didn't help me. When I went back into academia in 2001, part of my thought was that I needed to figure out a way to bridge this divide.

What is the key to doing that? Having been in both places, do you know what the common link might be?

For me as a lawyer, one of my particular focal points is how law influences political decision-making. I think many political scientists assume that law is somehow there, but it's not a really factor. I think particularly after September 11, people said, "What's law got to do with it? This is just about power." Everything that we did for fifty years to create this legal structure is somehow thrown out the window. What I've tried to do in my work is to argue, "Here's how law affects political choices: If you do things with law behind you, you're stronger. If you do things in the face of law or in violation of the law, you're weaker."

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