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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Foreign Policy Since 9/11

We were on a trajectory before 9/11. You discussed that with us just now: a commitment to building an international structure. As you said, this was pushed aside by the choices made by the Bush administration. Why do you think that happened? I know you believe those decisions were wrong, but what is your analysis of the dynamic that would create such a reversal, a reversal that even ran against what many former officials who served the first President Bush thought was a way to approach some of these problems?

In trying to put myself in their shoes, I think the Bush administration saw a radical discontinuity. I call it Achilles and his heel. On the one hand, we are the most powerful country; on the other hand, we clearly have an Achilles heel -- we can be attacked and 3,000 people can be killed. So how do we defend ourselves? We adopted an approach of homeland security, which they construed to mean more security at home and preemptive self-defense toward people abroad. Their focus on human rights shifted from "freedom to ... " -- freedom to speak -- to "freedom from ...."

"Freedom from fear" was Franklin Roosevelt's famous phrase. I think they thought we need freedom from fear. So they essentially inverted the framework by which human rights analysis had been going on for years, because they thought there was this radical discontinuity. Their great mistake was to underestimate the strength of the legal process that surrounds what the U.S. did. I describe it as a legal exoskeleton. The United States had created a political order, and there was a legal framework that held it in place.

Internationally?

Internationally. The United States designed this. It was designed to help us. We could mobilize it. For example, we mobilized that legal framework in the first Gulf War to lawfully drive Saddam Hussein out of Kuwait.

I think that what happened was, the administration suddenly felt this exoskeleton as constraining, and they tried to break free. It looked for a while as if they had done so. But what we're seeing as I speak, which is in October, 2003, that the exoskeleton is flexible, it's closing back in. The U.S. government is under a lot of pressure. It's pretty clear that the unilateral actions they've taken have hurt them overseas and at home. They're now trying to figure out a way to get Iraq's reconstruction funded. What it shows is that law is resilient, and power has to take law into account.

In 1990 you wrote a book after your experience in the Iran Contra matter, The National Security Constitution. One of your arguments was that foreign policy (I will state it briefly and you can correct me if I'm wrong) could be made which reflected the constitutional framework which said that on issues such as foreign policy there is a shared responsibility. That although we have separation of powers, the dynamism between the different branches could make for a better policy, and that in the Iran - Contra case, that had failed. You went on to say that you thought there had been a failure of power sharing, because there had been an executive initiative, congressional acquiescence to that initiative, and a judicial tolerance of letting the executive do what it wanted or thought was best.

So the question is, does that analysis apply in this situation? Why didn't the system respond sooner to the actions that the Bush administration took, which essentially put aside the framework? Does your analysis apply to what happened after 9/11?

Very much so. I think you stated the thesis well. You know, the thesis of the book National Security Constitution was that at the time, many people were saying the Iran - Contra affair was kind of a blip. It was a failure of certain individuals -- Admiral Poindexter, Oliver North. My argument was that is this is systemic. There are two competing visions of how to run policy: one is executive dominance, the other is what I call balanced institutional participation -- the Congress, the president, and the courts. The principle of checks and balances doesn't stop at the water's edge; all three branches have to participate. There had been a pattern of executive overreaching, congressional acquiescence, and judicial tolerance, which was building this counter-paradigm of executive dominance.

Now, the funny part was, after I wrote the book, we went through a period in which the Clinton presidency had great weakness. Newt Gingrich came up, and a lot of people said, "Do you now think you were wrong?" I said, "No, the pendulum will come back." Look what happened right in the wake of 9/11. The president said, "I want a Patriot Act." Congress was extremely acquiescent; the courts have up until this point not really drawn a line.

We're now in a situation in which, finally, some cases are working their way to the Supreme Court, particularly [the question of whether] you can hold a U.S. citizen indefinitely without a lawyer, calling him an enemy combatant. That's the Jos? Padilla case. In the end, we're looking to see whether the president's power can be restrained by either Congress or the courts. Just analogize it back to the steel seizure case of 1952.

That was which case now?

Youngstown Sheet and Tube, the steel seizure case. Harry Truman seized the steel mills in Youngstown, Ohio, during the Cold War. The Supreme Court said, "You can't, indefinitely, seize American property at home in time of war." Now, if that's so, how can you seize an American citizen indefinitely in time of even a war against terrorism?

So what we're going to see now is which image of foreign affairs decision-making the Supreme Court will accept. Will it be the executive dominance model, or will it be the power-sharing model? I would argue it ought to be the power-sharing model. The most important point is that the power-sharing model is not just good for Congress and the courts, it's good for the president. When the president goes it alone, he may have greater freedom in the early going based on his popularity polls, but when his popularity starts to drop, he needs the support of Congress and he needs the legitimization of the courts to carry on a balanced constitutional foreign policy.

That's what we're seeing with President George W. Bush now. He started with tremendous popularity. Over time, it diminished. Now a majority of the American people is criticizing the way he's conducting our foreign policy. If he had gotten a statute that clearly supported him, if he had gotten a judicial ruling that clearly said he is in the right, he'd be on much stronger footing. It's in his interest to seek those.

In the case of this particular administration, it seems they've gone out on a limb, and the route they've taken doesn't work. So it's not just that they violated the norms, but the norms were in place for a reason. Now they're out on the limb which an election may saw off, so to speak.

Yes. Again, this is an idea of a legal exoskeleton that is not just a restraint, but it's also a source of power. If you stay within the legal exoskeleton, you're exercising legal power; when you step outside, you're sacrificing your legitimacy. The big challenge of this administration: can they fight outlaws while staying within the law? There has been too much of a tendency to say "fight fire with fire, legal niceties don't count"; and then find that we are viewed as as big of an outlaw as some of the countries that we're criticizing. That weakens our cooperative power, our soft power.

Joe Nye,* the political scientist, distinguishes America's hard power -- military and economic power -- from its soft, cooperative, persuasive power. I see the rule of law and our reputation for promoting the rule of law, human rights, as core to our soft power. We have been squandering that reputation and relying on our hard power. It turns out that hard power is good for defeating Iraq. It turns out it's not good for rebuilding Iraq; for that we need soft power, and we are sacrificing that soft power. We're squandering it at a time when we need it the most.

One has the sense that the very problems that the Bush administration is now confronting in Iraq are the ones that we worked on in the nineties; that we were building up a way of thinking about them, working through them. They pushed all that off of the table, and now they're hoisted by their own petard.

Yes, one argument I made in the Jefferson Lecture is, did the United States have an option other than to attack Iraq with the British government in the spring of 2003? The Bush administration framed it as, "Attack Iraq with the Brits, or do nothing and let Saddam continue with weapons of mass destruction and gross human rights violations." Many people then said, "Well, if this is the choice, better to get him out."

What I've been arguing is that there was a third way that was developed a long time ago. How was Milosevic removed? The United States put pressure on him -- collectively, cooperatively -- and created a tribunal where he could be tried, encouraged popular democracy to thrive. He was gradually forced to leave. A democratic government replaced him, and he went to The Hague [to be tried].

So if the United States government had used a similar plan -- disarm Iraq without attack, get Saddam to leave without military force -- we could have maintained our legitimacy without resorting to this radical, coercive alternative. The Clinton administration felt like there was a game plan, there was a blueprint that you could follow, which was followed with regard to Milosevic. Here, they didn't follow it. They took a route that looked better in the short term. It's turned out to be much worse in the long run.

General Wesley Clark has an article in the forthcoming issue of The New York Review of Books where he argues that one of their failures was to not build on what had become an interagency process during the Clinton administration to lay out within the government planning about how one prepares for the transition to democracy.

In Kosovo, in East Timor, in Sierra Leone -- all of these were post-conflict societies in which major peacekeeping rebuilding efforts were made. One of the great tragedies of Iraq [was when] Sergio Vieira de Mello, who was the U.N. administrator in Kosovo and the U.N. administrator in East Timor, went to Baghdad and was killed in a bomb attack. Why? In part because the necessary preconditions, the security arrangements and everything, weren't established. I think he knew, even at the time that he was going, that he was entering a much more dangerous situation in which basic groundwork hadn't been laid. It's a tremendous tragedy for everybody that we didn't learn the lessons of the past.

Do you feel that there was a political failure, domestically, in the United States among elected people in the Congress to oppose the war? Did they not meet the test that you defined in your book?

Yes.

Yes, they failed?

They failed. Let me give one example. The Patriot Act passed with one dissenting vote, Russ Feingold. The Patriot Act circulated in draft when most of Congress was out of their offices because of anthrax, so many of them didn't even read it -- you're passing a law that you didn't read! It's called the Patriot Act. The authorization for use of force essentially permitted the president to attack any country that he thought was a threat after 9/11. It didn't name names. Declarations of war name particular countries. It's one of the most open-ended authorizations since the Gulf of Tonkin resolution.

With regard to Iraq, Congress made an absolutely critical error. In the first Gulf War, the president went to the Security Council and he got a resolution authorizing an attack, but setting limits. Then Congress authorized him to use power necessary to enforce the limited Security Council resolution. That was the right sequence.

In this Gulf War, 2003, the president goes to Congress and says, "Just give me a resolution which I can use in that regard whether there's a Security Council resolution or not." So they gave him, essentially, an open-ended Security Council resolution before the election. Once he has a congressional resolution, he doesn't need a Security Council resolution. So then he goes to the Security Council and says, "I'm going to attack Iraq whether you say so or not." Then they go back and forth. In the end, he abandons the effort to get a Security Council resolution that would authorize the attack, and then says, quite, in my mind, unbelievably: "By the way, the old Security Council resolution justifies today's attack." That's pretty strange to think that France, in 1991, was authorizing the attack of Iraq in 2003, when Chirac is sitting there in 2003 saying, "I'm going to veto any resolution."

Congress failed in terms of the way in which they saw their responsibilities. They should not have given a blank check. The president was short-sighted also. He saw this blank check as somehow in his interest, but he's paying a price, because now it's "Bush's War." He didn't have congressional approval at the time. It was too open-ended. So now, Congress can walk away from the war.

I'm not blaming any particular entity. I think everybody covered themselves with inglory in this episode. The president acted without real consultation, without getting specific authorization. Congress bailed out, ran for cover. The courts haven't yet adjudicated, particularly in these detention issues, but their challenge is coming up.

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