Loading ...
Sorry, an error occurred while loading the content.
 

[FEDERAL COURT JUDGE] Harold Hingju Koh

Expand Messages
  • madchinaman
    Harold Hongju Koh http://www.icasinc.org/bios/koh_hh.html Harold Hongju Koh was sworn in as Assistant Secretary of State for Democracy, Human Rights and Labor
    Message 1 of 1 , Nov 13 3:10 PM
      Harold Hongju Koh
      http://www.icasinc.org/bios/koh_hh.html


      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.

      They are:
      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.

      ===============

      http://globetrotter.berkeley.edu/people3/Koh/koh-con0.html
      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-
      Contra Affair.

      Background
      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
      world?

      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
      academic.

      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
      looked back.

      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.

      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."

      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?

      Yes.

      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
      did ...

      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
      them.

      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?

      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 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
      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.

      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
      of cooperation.

      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.

      Conclusion
      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
      History.
    Your message has been successfully submitted and would be delivered to recipients shortly.