In recent weeks I was asked to sign a petition circulated by Sarah Cleveland and Mike Posner strongly defending Harold Koh’s role and offering their views on the integrity and value of the human rights’ positions advanced by Harold when he was Legal Advisor at the State Department. In the light of Philip Alston’s post questioning the wisdom of academics countering student petitions, I offer the response I gave to the request for my signature. Like Philip I declare my own interests from the outset. I am a non-American international lawyer who has had the privilege of serving in a government appointed role in another jurisdiction. I have also worked with many of the best human rights lawyers in the world over the years, including owing a deep debt to Michael Posner for the tireless work he undertook as Executive Director of the (then) Lawyers Committee for Human Rights in Northern Ireland during some of the darkest days in the jurisdiction that is my home.
When asked to sign, I articulated a deep discomfort with the petition and the precedent it sets. I strongly believe that any academic should be able (as should any student) to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat. The capacity to question and unreservedly critique is particularly important when the decisions made were controversial. I also expressed my discomfort as a non-American international lawyer, echoing the views of many others within and outside the United States, that one can reasonably take the position that the US government and its targeted killing programs breached international and human rights law standards. The bottom line is that I am not fully in a position to judge, but neither really are those students who chose to express their views as they did, nor are the academics who were asked and chose to sign the petition. Petitions that purport to know what is unknowable and not in the public domain are neither good individual defenses, nor are they robust defenses that advance the protection of human rights in the United States or elsewhere.
I believe that the letter sends a real chill to an important open debate. It may leave students and professors who might want to express their critical views less able to do so, for fear of this kind of organized and in its way very powerful defense shutting down legitimate conversation that benefits us all. I have been deeply and profoundly influenced by Harold’s writings and his work in the world long before I came to work in an American law school. However, if this kind of organized response is activated for asking open if uncomfortable questions, it may stop many from asking those questions and engaging in the kind of debates that advance a democratic and human rights-compliant society. In a fundamental way, and my articulation may not be popular, it may well mean that younger scholars, those seeking advancement within the legal academy in the United States, and those who might wish to serve in the US government in the future may feel unable to articulate their discomfort precisely because so much of their future career and political advancement is bounded by this jurisdiction.
I also have a sense that with all the good will driving the counter-petition, there may be a miss on the optics of sending what seems like a sledgehammer to hit what from any external view looks like a group of students doing what students do (and should do). Students ask questions about big issues in the world and those responsible for them. They sometimes do so in sophisticated and highly thoughtful ways, sometimes in blunt and less complex ways, sometimes we agree with them, sometimes we disagree. Ultimately, we may not like what they say but we should defend their right to say it. The petition may, I fear, push us towards the kind of “enforced silence” that Justice Brandeis’ concurrence in Whitney v. California sought to steer us away from, particularly given the real (and perceived) power differentials between students and the academy speaking in concert.
Having some relevant experience of political appointment to a governmental body in Ireland (the Irish Human Rights Commission), I offer the following thoughts on the delicacy of human rights practice in government service. I served for five years on a body that was formally charged with overseeing and monitoring the state’s human rights obligations. In practice, as has been well documented, even governmental bodies with a formal human rights charge struggle with human rights enforcement and consistency. For a variety of reasons, the body I served on was often (rightly) critiqued for a failure to live up to our charge, even as many of us had the paper perfect credentials to demonstrate our long-term commitment to human rights and human dignity. Ultimately, you are party to the decisions that are made in the name of the government body you serve upon, and whether you fully agree with those decisions or not, you bear responsibility for and ownership of them. Your advocacy may be significant in the closed and silent rooms of government, but it was never my view that colleagues outside those rooms could attest to the vigor of my arguments or influence. Nor could they realistically know when I had compromised, stood back, or made decisions on other grounds.
When you choose government service, you enter a profoundly different space from human rights activism in the traditional sense. And it feels a little (a lot?) naïve to think that human rights activists who come into government always act for the good, or are always human rights-compliant and do not make the kinds of compromises and decisions that human rights academics and activists have a right (maybe duty) to critique from the outside. The point is, the roles are different, and the petition assumes that they are not. From a very personal perspective the petition undercuts the important value that one can and should be subject to criticism for the decisions one takes in and for government wearing a different hat. I bluntly think many human rights academics felt real pressure to sign this petition in ways that are not productive to open, honest, and rights-based conversations. The particular revolving door between academia and public service that Philip alludes to may be a peculiarly American construction, but we should not, on any side of the political fence, be naïve as to the implications and responsibilities of government service, no matter what human rights credentials we bring with us.
Like Philip, I would fully and unreservedly support and value the decision to appoint Harold to NYU. As a student, I would have relished the privilege to be taught by him. But, the right to question, critique, or assess the decisions we are individually or collectively bound to when we serve in government is an entirely different matter. Fundamentally, I stand by the view that we remain responsible for those decisions and their human rights implications. We can and should remain open to critique about them, and the fact of questioning makes for stronger and deeper democracy.