[FEDERAL COURT JUDGE] Harold Hingju Koh
- Harold Hongju Koh
Harold Hongju Koh was sworn in as Assistant Secretary of State for
Democracy, Human Rights and Labor on November 13, 1998. A Korean-
American, he was nominated by President Clinton on September 10,
1998 and confirmed by the Senate on October 21, 1998.
Other APA Judges
There are 7 AsAm judges at the federal District Court, which is one
level below the Circuit Court. These judges and those above them are
all appointed by the President and confirmed by the Senate.
1. Robert A Takasugi, Central District of California (CDCA);
2. Ronald S. W. Lew, CDCA;
3. Anthony W. Ishii, Eastern District of CA;
4. George H. King, CDCA;
5. Susan Oki Mollway, District of Hawaii;
6. Denny Chin, Southern District of New York;
7. Dana Makoto Sabraw, Southern District of California.
There are 4 AsAm deans of law schools
(1) Frank Wu, Wayne State,
(2) Wallace Loh, University of Washington (1990 to 1995),
(3) Allen Easley, William Mitchell College of Law,
(4) Harold Hongju Koh, Yale
As Assistant Secretary, Koh advises Secretary Albright on U.S.
policy on democracy, human rights, labor, the rule of law, and
religious freedom. Assistant Secretary Koh formerly served as the
Gerard C. and Bernice Latrobe Smith Professor of International Law
and Director of the Orville H. Schell, Jr. Center for International
Human Rights at Yale Law School. Before beginning his professorship
at Yale in 1985, Harold clerked for both Judge Malcolm Richard
Wilkey of the U.S. Court of Appeals for the DC Circuit and Justice
Harry A. Blackmun of the United States Supreme Court. He worked in
private practice in Washington, DC and as an attorney at the Office
of Legal Counsel at the U.S. Department of Justice.
Assistant Secretary Koh has authored more than 70 articles on
international law, human rights, constitutional law, and
international business transactions and trade, and is author or
editor of several books on international relations, law and human
rights. He is the winner of the 1991 Richard E. Neustadt Award from
the American Political Science Association for the best book on the
American Presidency and a 1996 Guggenheim Fellowship. Harold has
received numerous honors for his human rights work, including an
Honorary Doctor of Laws from City University of New York Law School,
the Asian American Bar Association of New York's 1997 Outstanding
Lawyer of the Year Award and recognition by American Lawyer magazine
in 1997 as one of the country's 45 leading public sector lawyers
under the age of 45.
Assistant Secretary Koh earned a B.A. from Harvard University in
1975, an Honours B.A. from Magdalen College, Oxford University in
1977, and a J.D. from Harvard Law School in 1980. He has been a
Visiting Fellow and Lecturer at Magdalen and All Souls Colleges,
Oxford University, and has taught at The Hague Academy of
International Law, the University of Toronto, and the George
Washington University National Law Center.
He is married to Mary-Christy Fisher, an attorney, and has two
children, Emily and William.
Welcome to a Conversation with History. I'm Harry Kreisler of the
Institute of International Studies. Our guest today is Professor
Harold Hongju Koh, who is the Gerard C. and Bernice Latrobe Smith
Professor of International Law at Yale. He has served as Assistant
Secretary of State for Democracy, Human Rights, and Labor in the
State Department from 1998 to 2001. His publications include
Deliberative Democracy and Human Rights, with Ronald C. Slye, and
The National Security Constitution: Sharing Power after the Iran-
Professor Koh, welcome to Berkeley.
Thank you for having me.
Where were you born and raised?
I was born in Boston. My parents both came as students from South
Korea. My father was the first Korean, I think, to study law in
America. My mother is a sociologist.
Looking back, how did your parents shaped your thinking about the
Totally. My father came at the time when Korea was controlled by the
Syngman Rhee dictatorship. When it was overthrown, he went back to
campaign for the first democratic government of Korea. When that
government was elected, he was appointed ambassador to the United
Nations, and then minister to the United States. Then his
government, the new democratic government, was overthrown by
military coup, and my father refused to serve the dictatorship and
spent the rest of his life in America. That's how I grew up here. So
when I became Assistant Secretary of State for Democracy of the
United States and went back to Korea, it was an important way of
bringing my whole family's life full circle.
What about the influence of your mother?
My mother is a sociologist. She's an expert on comparative cultures,
and she is one of the leaders of the women's rights movement in
Korea. She is the person who most influenced me on how to understand
human relations. That's become a critical part of what I do, both of
as a lawyer and as a diplomat.
So was there a lot of talk about politics around the dinner table as
you were growing up?
Yes. I have five siblings. My older brother was a commissioner of
public health of Massachusetts.
Oh, I see.
He just recently became a professor at Harvard Public Health School.
I have a number of siblings who are academics. One of my sisters,
Jean Koh Peters, is my colleague at Yale Law School.
So it's fair to say that your upbringing was a transnational process
in itself, actually?
What I was told quite early was, if you're going to be between two
cultures, use your bicultural background as an asset. That
immediately meant that I should be a diplomat, or a lawyer, or an
But the final choice was law. Why is that? Just because of the
influence of your father or the example he set?
Well, I started out as a physics major, and my disadvantage was that
I was not good in physics. Quite literally, one day I was going to a
physics lab and somebody else was going to a U.S. and East Asia
course, and I turned around and went to that course, and I haven't
Did you have any mentors in law school, or even as an undergraduate
at Harvard, who made an impression on you and further defined the
direction that your life was going to take?
In college, two mentors: I had Paul Freund, who is a professor at
Harvard Law School; and Edward Reischauer, who is U.S. Ambassador to
Japan. In law school: Arthur Miller, who is a professor of civil
procedure; and Abram Chayes, who wrote about international legal
process. It's really his ideas of international legal process that
I've tried to develop as a transnational business process.
Interestingly, two people whom I didn't study with, Steiner and
Vagts, are now people with whom I coauthored a book on transnational
legal problems and transnational business problems, which are also
part of my whole approach now.
Let's start talking about your service in the government, because
you actually started early as a law clerk to a Supreme Court
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
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
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."
International Law and U.S. Foreign Policy
My training is in political science, and there's an old saying in
political science: "Can you have a system of law if you don't have a
cop on the beat?" In international relations, there's no cop on the
beat, except somebody with enough power to take an action. How do
you respond to that? Clearly, international law is more important
than it ever was, but as you just suggested, it's harder to make
people see that [today].
I guess I'd ask you this: Do we have burglaries in Berkeley?
Well, the fact that domestic law is under-enforced or imperfectly
enforced doesn't mean it's not enforced. The core way in which you
enforce law in Berkeley, Berkeley law, is not by coercion, but by
norm internalization -- people internalize a norm against burglary.
I would argue in the same way, internationally. There is a system of
international law. It's imperfectly enforced. It's under-enforced.
But, again, the same mechanism is at work -- norm internalization.
Why don't nations attack each other all the time and take them over?
Maybe it's because they fear coercion or sanction, but in fact, it's
because of a sense of internalized restraint. Why don't people
sitting next to each other in a restaurant in Berkeley, get up and
start punching each other? Maybe if they did, they might get
arrested for disorderly conduct; but in fact, it's because of a
sense of internalized restraint. So the element I'm trying to find
is, what is it that internalizes this restraint? How do you bring
international law home? That's been the focus of my research,
particularly since I came back from the government.
America, before 9/11 and the current administration, had an
important voice in making that internalization possible for other
countries. We had a lot of power; we could have pushed people
around, used force and coercion, but we actually tried to influence
other nations by setting up this process of internalization that
you've just described.
When I came to the government, the first conclusion I reached was
that the rule of law should be on the U.S. side. That's a system of
law that we helped to create. We saw it in our self-interest, and we
accepted certain constraints because we thought that in the long-run
overall costs and benefits, the benefits far outweighed the cost. So
that's why we support various systems of international adjudication.
That's why we support the U.N. system. We need these institutions,
even if they cut our own sovereignty a little bit. I think that in
the post - Berlin Wall period, there was a feeling that this is a
chance for the system to become really effective.
I now view this period, from 1989 to September 2001, as a period of
global optimism, where people thought, "We can use global
cooperation to solve global problems." One of the problems is AIDS.
Another is global warming. Another is international crimes. Another
is terrorism. Then 9/11 came along and there were suddenly two
radically different views as to how to respond. One group
said, "Just forget this; throw it all out the window." The other
said, "Look, the same approach should still apply. Use global
cooperation to solve global problems." I think the administration
that came in took the first approach: "Let's go it alone. Let's do
it unilaterally." They broke out of the Kyoto protocol; they turned
away from the ICC; they attacked Iraq with a coalition of the
willing, rather than with U.N. support; and now they're surprised
when they've alienated the people whom they need to rebuild Iraq.
That's what makes this point in time, 2003, an interesting
watershed. The question is: "Will the United States continue to be
the world's primary advocate of norm-based internationalism, or are
we going to put forth a power-based internationalism as our prime
mode of doing business?"
Before we talk about the changes under the Bush administration,
let's go back, because you were in a pivotal role at a very creative
time for moving this whole process of internationalization of norms
further along. Let's talk a little about that, because it's not just
the American political tradition of dealing with these problems that
is at work, but also the particular leaders and academic ideas, and
also nongovernmental organizations and activism. So talk a little
about that dynamic in that very creative period before everything
hit the fan with 9/11.
The best image that someone gave me about being assistant secretary
of state is that you walk onto a tennis court and someone gives you
a tennis racket, and they say, "The balls are going to start coming
over the net," and balls start coming over the net almost faster
than you can see them. You start trying to return them, and then
after a while you're returning most of them, and then you say to
yourself, "Why don't I hit them to one place. Why not have a plan?"
And you try to hit the ball to the left side. Then suddenly, a
moment comes where you say, "Why am I not throwing the ball? Why is
my only approach reactive, rather than proactive?" Then you have to
ask yourself, "Well, what do I think are our proactive principles?"
What I tried to do was to say, "There are basically four principles
we really care about. First is telling the truth in human rights;
second, promoting accountability for past violations, while
promoting reconciliation; third, with regard to ongoing abuses and
present violations, engaging violating countries to try to get them
to stop, and with regard to the future, preventing future abuses.
And [fourth], the long-term solution is promoting democracy." In the
end, torture, genocide -- these are not diseases, they're symptoms,
symptoms of bad government. So we try to promote healthy government.
Now, interestingly, my brother, the commissioner of public health,
said to me, "I used to treat smoking patients, and then I decided if
I wanted to make people not get cancer, I would encourage them not
to smoke." He said, "If you promote a healthy body, you don't have
to deal with the symptoms of disease." I realized in the same way,
if you promote democratic government, you don't have to deal with
the symptoms of unhealthy government.
So those were our focal points: Truth-telling, accountability,
engagement, and promotion of democracy. And we had a very exciting
period. After the fall of the Berlin Wall, that was the largest
expansion of freedom in the twentieth century; the second largest
came during the time when I was in government. Nigeria and
Indonesia, and various parts of the former Soviet Union, all
switched to a democratic form of government. There was an amazing
fact, which we uncovered, which was that in 1971 there were only 25
democracies in the world, and in 2000 there were more than 120.
In fact, when Colin Powell's people asked me to brief him on what
the challenges were for the democracy in human rights policy, they
said, "We'd like you to start with a presentation of about fifteen
seconds." I thought about it and I said to my staff, "Get me two
maps: one is a map of the world in 1970, with all the democracies in
blue, and all the non-democracies in red; then get me another one
for 2000, same thing." Then, when he said, "Are you ready for your
briefing?" I said, "Secretary Powell, I want you to look at these
two maps. What you'll notice is there are a lot more democracies now
than there were thirty years ago. The countries that are in red, the
non-democracies, are the ones that are giving us the most human
rights problems. The countries that are in blue are the ones we can
cooperate with the most to try to address those problems. And the
major difference is that you now have many, many more countries with
whom you can cooperate to deal with a much smaller number of
countries. So your success in achieving this policy will be your
capacity to mobilize the blue countries to address the red
countries." I still think that's right. I think that's what we
should have done with regard to 9/11.
It seems like they didn't listen, or some parts of the government
Secretary Powell listened. I think he had that view anyway. I'm not
sure that others in the government listened to him.
As an academic and somebody whose home base is the university, and
just listening to you talk yesterday giving the Jefferson Lecture, I
have a sense of the strong idealism that motivates you. By that I
mean an image of the future, working toward that as you deal with
concrete problems. How do you deal with the situation in government
when things go terribly wrong, as obviously happened in Rwanda? That
was probably before you were in the government, but you could
reflect on that situation, where the good guys may not always do as
much good as they can at a particular moment?
We learned a lot from Rwanda, because there were dangerous signals
that were clearly ignored -- and then at the end, they were
intentionally ignored, to be honest. Nobody was ready to make the
commitment necessary to prevent something from happening. People
didn't know how bad it was going to be. The major lesson I take away
is when those signals are so unmistakable, you should not ignore
A second point as well, which is, "Why do you serve in the U.S.
government?" -- I was very lucky. I was a tenured professor. One
thing I decided to myself is there's always going to be somebody in
this job. If you care more about your principles than you do about
your job, then you will never fail, because you'll always be viewed
as having principles, so I have to be prepared to threaten to resign
if necessary. Now, it wasn't a bad threat for me because if I was
fired, I could go back to a tenured professorship.
But I was very struck ... six American Foreign Service officers
resigned during Bosnia before there was a commitment to the Dayton
Accords. I asked a couple of them, "Why did you resign?" They told
me they had gone to the Holocaust Museum when it opened. They were
looking around, and they saw cables that were sent from the U.S.
State Department about the Holocaust, and responses which were
essentially saying, "We don't know if anything is happening or not."
They realized that they were ignoring similar signals in Bosnia, and
that if they did that, they would feel as responsible as if they had
witnessed the Holocaust and not done anything about it. So a couple
of them came back and resigned on the spot. Those actions, those
acts of principle, pushed the Clinton administration to step up to
and face the problem.
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. 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
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
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
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 José 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
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
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, 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
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
U.S. Policy Toward North Korea
All that we've been talking about -- the difference between the
Clinton and the Bush administrations; the new problem after 9/11,
that is, the threat from either rogue states or terrorist groups
obtaining nuclear weapons, and trying to use them on the American
homeland, leading to the Bush administration view of the need for
preemptive strikes -- all this comes together in the case of North
Korea. I'd like to talk a little about that. You can bring a special
insight at many levels; your background, but also your work as a
lawyer and in the government. Share with us some observations how
these two contrasted views come together in the question of how to
deal with North Korea.
When I went to North Korea in November, 2000, with Madeline
Albright, it was the highest visit by an American official to meet
Kim Jong-Il. From 1994 to 2001, Kim Jong-Il had entered into this
agreed framework where he agreed to restrain nuclear construction in
exchange for food, energy, etc. North Korea is a failed state under
his leadership, and the clear impression that we had at the time was
if we can lure Kim Jong-Il into participating in a legal framework,
he will start to do things as part of this contractual agreement
that will bring him more and more into the world system. It's not
[so different than] the idea of Nixon going to China.
What I saw of him is, he's strange, but he is not crazy. He
desperately wanted to be closer to the world system. He wants to be
part of it. He wants to be, in some ways, recognized by it. Our
meeting went very well. And then it was discovered that, in fact, he
had been continuing his nuclear development. In other words, this
agreed framework had not worked perfectly.
And this discovery was made in the Bush administration, wasn't it?
Yes. Now, my view is that's a little bit like discovering the speed
limit of 60, but people are going 65. The fact that the law is not
working perfectly doesn't mean that it's not having a restraining
force. In fact, the Bush administration doesn't deny that the
existence of this legal framework meant fewer nuclear weapons in
North Korea than there would have been. Plus, it created a framework
What they do is they break off the talks, and then start making
threatening statements about Kim Jong-Il -- in particular, this
claim that he's part of this "axis of evil" that includes Iraq. Then
it becomes clear that we're going to attack Iraq. Now, if you're Kim
Jong-Il, you've been cooperating; suddenly, without much change in
your own behavior, you're being identified as part of this axis of
evil. I think he reasonably concluded from his perspective, "I
better get myself some more bargaining chips," and he started
building more weapons.
Then the United States was in a box, because at this point we didn't
have the negotiators who had negotiated the previous deal. We'd
abandoned the previous framework. We had created this feeling of
hostility, and we couldn't use military force, because it was too
dangerous to use it because of the proximity of Seoul to North
Korea. So what happened after a couple of years in which this whole
framework disintegrates, North Korea builds more weapons. We start
trying to develop another multilateral framework. We've moved from
one agreed framework to an effort to create a second one. My view is
we never should have abandoned it in the first place.
I'll tell you, Harry, the greatest tragedy from my perspective was
when we flew out of North Korea into the South, there was an
incredible moment. In North Korea, it's all-dark, there's no
electricity. And we flew into South Korea, then suddenly somebody
said, "Look, there's Seoul." It was just millions of lights, and I
thought to myself, "That's democracy." You know, these people,
they're the same people. The only difference between the North and
the South is the political system they live under. And look at all
this light, all this prosperity. We landed and we went to see Kim
Dae-jung, who had worked with my father, now a Nobel Peace
Prizewinner. He said, "I have this dream now. The North and the
South can be like a federated Germany. They can try to [create] an
Organization for Security and Cooperation in Asia." We left and we
flew back to America, and I said to myself, "I'm going to see Korea
reunited in my own lifetime."
The thing he said that really stunned me was at one point, Kim Dae-
jung, the President of South Korea, said, "I would like to see the
World Cup semifinal played in North Korea." Well, what happened, the
Bush administration broke off the talks; the World Cup semifinal was
played in South Korea. I don't know if you remember, but the people
who played were Germany and South Korea. If Kim Dae-jung's dream had
been carried out, a reunited Germany would have played South Korea
in a World Cup in North Korea. Every camera in the world would have
been there. The North Koreans would have been cheering for the South
Koreans. It would have opened up that country. Think about
what "ping-pong diplomacy" did to China, a much larger country. They
never could have closed the box again. A process would have begun in
Kim Jong-Il's North Korea that he could not have closed off.
Pandora's Box of democracy would have been opened.
I think about that all the time, because since then it's been a
couple of steps back. Now, we're moving back in the right direction,
but I really do want to see Korea reunited in my lifetime. That was
my father's dream, and I'd like to see that dream come true.
As you talk, it strikes me that one of the dilemmas that you must
have as an academic with a theoretical, long-term perspective,
moving to government, is the short-term perspective that seems to be
present often when one is in government. I wonder if you would talk
a little about that frustration. You've just laid out a beautiful,
long-term vision, but in the short term, things don't go the way one
would have wished if one were moving toward the long term. Talk a
little about that dilemma of the academic in government.
The academic tends to have theories and tends to have visions, and
the practitioner has to get things done. The practitioner's focus is
almost always short term, and the academic's focus is always long
term. I've tried to adopt a mentality of what I call pragmatic
idealism. I believe that civilization makes progress. Look at where
we are now, fifty years after the Holocaust, the things that are
possible now that weren't possible before.
In the end, I think that academic theories have to not be based on a
theory of collapse or failure, but on a theory of the possibilities
of human cooperation. The story that says it the best was when I was
in Belgrade in Christmas of 1998. There was a radio station called B-
92, which had been very critical of Milosevic, and Milosevic shut
them down. In the last days before they shut them down, they asked
me to come in for an interview. I was talking to an interviewer,
like you, in a studio, and the guy was almost in tears. At the very
end, he said "We're about to go off the air." And he said, "What can
you say to our listeners that will give them hope?"
I said, "Madeline Albright was born in Nazi Germany. She fled from
the Communists, and now she's Secretary of State of the most
powerful country in the world. My father was exiled from a
dictatorial government in South Korea, and now his son is the
Assistant Secretary for Human Rights of the United States. And guess
what? Both of our countries are free. The Czech Republic is free.
South Korea is a burgeoning democracy." I said, "And Yugoslavia will
be, too." And, you know, it's true. Belgrade is in a post-Milosevic
era. So I can be discouraged about 9/11, but I can't look at my own
life and not feel as if, as an academic or as a practitioner,
pragmatic idealism should not be my focus, and fundamental optimism
about the possibilities of civilization.
The bottom line in this positive direction that you're talking about
is what we started with, your interest in the effect of
transnational processes on both individuals and states, and also,
the internal processes of those states.
I've come to the idea that transnational process is like medicine.
When I first put the idea out, a lot of political scientists said to
me, "What's your theory? What's your prediction?" as if this was a
scientific process that's going to play out. As I worked on it I
started to think, "It's not so much a scientific theory as it is a
blueprint for action. We need able practitioners who are going to
push this process along." I don't think human history just plays out
inevitably. I think it is contingent on human action. So when people
say to me, "What does your theory now predict?" I say, "Will the
patient die or will the patient live?" You know, it depends. It
depends on how good the doctor is, and how quickly they identify
what's wrong, and how far they push for the right results.
So it's a craft, an art?
It's a craft. My view is there was a choice after 9/11. I think we
made a lot of the wrong choices. We're now starting to recognize
that we made the wrong choices. So even when we make mistakes,
there's a self-correcting nature of the system, but it's a job of
people who care about the system, and of making progress to push it
in the right direction. That's why I'm very inspired by the quote
from Robert Kennedy at Cape Town in the 1960s. He said, "Every time
a person stands up against injustice, it sends forth a tiny ripple
of hope which is crossing one another from a million centers of
energy, and daring to create a tide that can bring down the
mightiest walls of injustice." He's talking about what one person
can do in transnational legal process to change the world. When he
said it, he was in Cape Town, and now South Africa is a
constitutional democracy. There are people who are living proof --
Martin Luther King, Nelson Mandela, Mahatma Gandhi -- that this
pragmatic idealism, connecting intellect to action, a theory to
practice, has the possibility to change the world for the better.
Professor Koh, on that very hopeful and positive note, thank you
very much for joining us and sharing this fascinating intellectual
odyssey with us.
Thank you very much for having me. I really enjoyed it.
And thank you very much for joining us for this Conversation with