CAN THE UNITED STATES RECLAIM THE MORAL HIGH GROUND?
Harold Hongju Koh, Dean, Yale University Law School
Tuesday, November 14, 2006

"Thanks very much Charlie. And thank you for welcoming me back to Washington, D.C. I don’t get here all that much. It was an extraordinary pleasure to work in the State Department with Charlie. He is a person of extraordinary intelligence, extraordinary passion, and extraordinary commitment and what he has done with this organization is a measure of what he can do for the world at large. I see also in the back a couple of friends of mine who I worked with at the State Department and I am delighted that they are here.

Let me tell you, how to think about the last few years and the years ahead? The question I have been asked to address is “How can the United States reclaim the moral high ground?” The question is: Does the United States need to reclaim the moral high ground? Just the other day, I was looking at the Pew Foundation research in which they were evaluating what is the gravest threat in the world to peace and security. In different countries around the world, people answered the question. And they were given a choice of what country is the biggest threat to peace and security and one possible answer was Iran and another possible answer was the United States. How many countries do you think answered United States was the lesser threat to peace and security? Two. The answer is only two countries in the world did the United States get the credit for being the lesser threat to peace and security than Iran. Those two countries were the United States and Germany. Whether or not this proves an accurate assessment, it is a devastating assessment by our peers about our own progress.

So exactly what is it that’s happened and what should we do about it? So let me divide my remarks into what I call the diagnosis and then the prescription. I think the best way to think about it is, since September 11, 2001, the world of human rights and the world of law has essentially been turned upside down. It has been turned on its head. You can think about the age of globalization as being divided into two phases. Phase number one went from the collapse of one structure, the Berlin Wall in early 1989, to the collapse of the World Trade Center on September 11, 2001. That was a period of intense global optimism. It was viewed that you could fly anywhere in the world at a moment’s notice, you could go to your ATM machine and withdraw money from your bank account no matter where you were, using the internet you could communicate with anybody in the world on a moment’s notice. And we were stunned by the possibilities of the age of globalization. It was the age of global optimism.

And then on September 11th, suddenly our perception was the same interconnectedness was an enormous threat to us. That the same airplanes could be used to destroy our most valuable buildings and the same internet connection could be used to send viruses to cripple our computers, the mail system could be used to send anthrax. And suddenly we became frightened and this is what I like to call, I’m sad to call, the Tina Turner moment where people said, “What’s law got to do with it? What’s law but a sweet old fashion emotion?” We’re at war. So the fact that you had several hundred years of building a legal regime to respond suddenly gets thrown out the window. By the way, never remembering that in war there is law, there is a law of war and that we don’t just throw everything out the window.

So how did the world turn upside down? Well, when Charlie and I left the State Department together in January of 2001, our foreign policy ran on four basic principles. The first is diplomacy backed by force, if necessary, but only as a last resort. And our primary method of dealing with foreign governments, both friendly and hostile, is diplomacy. And in that role, the State Department plays a critical role. Now having force in the background as was the case in Bosnia or Kosovo, it was helpful. But at the end of the day, our primary mode of dealing was through talking, not through threats.

Second, the principle that human rights are universal, particularly the four freedoms that are specified in Franklin Roosevelt’s 1941 speech: freedom of speech, freedom of religion, freedom from want and freedom from fear….And by universal, it means that there are no areas and no individuals to whom these rights do not apply.

The third basic principle we observed at the Bureau of Democracy, Human Rights and Labor is that you build democracy around the world from the bottom up. We obviously cannot impose democracy but we have to foster the conditions so that democracies could grow. Charlie and I and our friends tried to do this in various places around the world. And we went to Nigeria, Colombia, Ukraine for the Community of Democracies initiative.

And finally, the notion that in diplomatic affairs, we offer a condition of strategic multilateralism and tactical unilateralism. In other words, if we have a diplomatic situation, you try to deal with it multilaterally first, then only if there is no other alternative do you deal with it unilaterally.

When I was leaving office, in fact Charlie helped me prepare for this briefing, Colin Powell had been named Secretary of State. It was December of 2000. And we were instructed to give a briefing to him about the democracy and human rights policy of the U.S. government, and they told us we had 30 seconds to make the initial presentation. You can see what passes for deliberation in the U.S. government. And I asked Charlie and folks in our office to put together two maps. The first is a map of the world in 1970. The second is a map of the world in 2000. And to mark the democratic countries in blue (like the blue states) and the others in red (the red states). And when the briefing began I said to Secretary Designate Powell, “Secretary Powell, you see these two maps? One is of 1970 and there are a lot of red on this map. The other is in the year of 2000 where instead of 30 democracies in the world, there are 120.”

And the same principles are true, that the red countries are the ones that give us trouble – the dictatorships, the North Koreas, the Iraqs. The democratic countries, the blue states, are the ones who can be our partners. So the challenge that we face is to use global cooperation among global democracies to solve global problems because there are so many problems that cannot be contained within the borders of any state. In other words, we need global solutions and those need to be obtained multilaterally. And I mentioned to him that includes trafficking in women and children, trafficking in drugs. That includes environmental harm that crosses borders, transborder spread of disease like AIDS or as it turned out later SARS or Avian Flu. And it applies to the spread of terrorism. And notice that the solution for all of these is not a unilateral approach, it is using global cooperation among global democracies to solve global problems.

While those are the four principles when we left office in 2001 - diplomacy backed by force, human rights are universal based on the four freedoms, building democracy from the bottom up, and strategic multilateralism and tactical unilateralism - where are we now five years later?

Well, now we see government policy using force first, backed by diplomacy, if at all - particularly, the interventions in Iraq and Afghanistan and other threatened interventions. On human rights universalism, I heard an administration official say there is only one freedom that now counts and that is freedom from fear. And that in fact, we do not accept that human rights ought to be applied universally, we apply the double standard. Third, that we accept the rule that we can enforce democracy from the top down, like in Iraq, like in Afghanistan – and you can see how well that is working in both places. And fourth, there is a policy of strategic unilateralism with multilateralism only as a last resort, as exemplified by the appointment of John Bolton as the Ambassador to the U.N. The challenge of bringing an ambassador to the U.N. requires someone who actually is diplomatic.

So the world of international relations has been turned on its head. Now, you might ask yourself what’s happened to the world of domestic law? This is a very important point. We talked the presidential power and vision that has been put forward by this administration. That vision is necessary because one vision accommodated the internationalist vision of 2001 and if you are to turn that vision on its head you also need to turn the world of domestic law on its head to make it possible.

So what examples of this are there? Again, the four principles. First, the basic principle of constitutional law is that the powers are shared between the president and Congress and the Courts…Checks and balances don’t stop at the waters edge. No single branch of government has a monopoly on foreign affairs power.

The second principle is there are no law-free zones. There are no law-free people. There are no law-free practices. There are no law-free courts. There is law governing all.

Third, if Congress, or if the government, is going to take away or limit our rights, they should do so clearly and specifically through clear legislative statements.

And finally, there are not gross disparities between the rights of aliens and citizens. My parents were permanent resident aliens. My father taught in the Connecticut state university system. But from the fact that he could not vote and he could not serve on a jury, in all other respects he lived his life like an American citizen.

So, in five years, what has happened? Instead of division of shared power, you have an extreme vision of unilateral presidential power in which this administration views that the Congress and the Courts really have no role. It was a consistent theme that the legislature should simply rubber stamp what the president does and the Courts are excluded from it altogether. Instead of the notion that there are no law-free zones, we have a law-free zone – we call it Guantanamo. We have law-free people – we call them enemy combatants. We have law-free practices – we call it extraordinary rendition. We law-free courts – we call them military commissions…We take wrong theories of presidential power and various open-ended statutes like authorization for use of military force…and read into them sweeping endorsements of presidential ability to limit the rights of ordinary citizens. And finally, the rights of aliens, some dramatically affected. The Pakistani population of the greater New York area has been dramatically reduced. And you have literally millions of people marching in the streets for immigration reform.

So, my point is simply this, both the international vision and the domestic legal vision of the country has in five years been turned upside down. We’re living in a world turned upside down. And then last summer we got the worst of all: The notion that the president’s word is a law unto itself. This is a consistent refrain of Attorney General Alberto Gonzalez. He was asked, “Can the president authorize torture?” And the basic response was if the president authorizes it then it is not illegal. Or, what about the fact that the intelligence surveillance act seems to prevent wire tapping without going to a special court for a special warrant…And the response to that was, well if the president does it, he must do it under exclusive constitutional authority. And now, an even more amazing statement was that the ‘president by signing’ statement. By signing a bill into law, you can adjust its means. Now when you veto a bill, it can be overridden by a vote of two-thirds. This president has vetoed only one bill, the stem cell bill. But when you sign the bill, that cannot be overridden. And so the president can claim essentially to rewrite the law as per Congress wrote it.

Now what this all brings to mind is something that Richard Nixon said in 1973 in an interview with David Frost. He said, “If the president does it, it is not illegal.” Or Henry Kissinger put it a little bit more wily…Now when you think about it there is a sad truth to what Kissinger had to say. For actions to be truly unconstitutional, it must be because the other checks and balances have completely failed. And the question is, why has that happened?

So that is the very discouraging diagnosis. That in just five years, the vision of law and human rights at the international and domestic level has been turned on its head. So what’s the prescription? How do we turn it right side up again? Or as I like to say, how do we go back to the future, back to the principles we basically had?

Now this is actually a pretty simple idea, which is you simply re-energize the checks and balances. And what are they? The courts, the Congress, executive branch and civil society, which is where you come in. So let’s go over all of this.

First, the courts. You may have noticed something funny which is the courts, particularly the Supreme Court, has not gone along with this agenda. Since 2001, four cases have come to the U.S. Supreme Court…The other three, the court ruled against the president’s claims. And that’s a court that includes four republicans. John Paul Stevens, David Souter, Sandra Day O’Connor and Anthony Kennedy ruled against this president.

So in other words, these views were way outside the mainstream. And the most recent example of this being the recent decision on Hamdan vs. Rumsfeld. Now as this happened Chief Justice Roberts as lower court judge that sat on the case…ruled by a vote of five to three with Anthony Kennedy writing the critical opinion. And immediately, the executive branch lawyers rushed forward to say this is just about military commissions. Don’t believe that for a second. This is the most important decision about executive power since 1952...What they are essentially saying is the way in which the president has been looking at the law - in the area of torture, in the area of military commission, in the area of detention, in the area of foreign intelligence surveillance - is illegal and should not be applied to other contexts. That is the clear message of that opinion.

Now, it should not surprise you the military commissions order in 2001 by all press accounts was adopted without review or inquiry of the following people. The Secretary of State, Colin Powell, knew nothing about it. The legal advisor to the State Department knew nothing about it. The National Security Advisor, then Condoleezza Rice, knew nothing about it. Her legal council knew nothing about it. The Assistant Attorney General of the criminal division, a guy at the time names Michael Chertoff, knew nothing about it. The military judge advocate generals officers knew nothing about it. This is a military order that was issued without meaningful internal legal review. Five years later it was struck down by the Supreme Court, the conservative Supreme Court, as illegal. And people are surprised. And then, what do they do? They go to the same people who came up with the original order to find the solution. Think about that.

Now, the interesting thing when you look at the Hamdan decision is that it essentially re-affirmed each of the four principles of constitutional law. It re-affirmed that the Congress, the president and the courts must act together in foreign affairs. It re-affirms that Hamdan is not a law-free person, even though he is in Guantanamo he does have rights. It confirmed that aliens do have rights. And it says that legislative enactments that restrict the human rights of individuals have to be clearly stated. They cannot be vague and open-ended. So, in other words, the Hamdan decision re-affirms the basic principles under which we have been operating before this whole episode began.

Now, this then went to the Congress. What could the Congress do, what should the Congress have done? The Congress basically had two options. One is to take the Hamdan decision seriously and fix the law to be consistent with the Supreme Court’s decision. What did they do instead? The president came to them and said pass a law before election day so I can prosecute some people who I was denying existed a few days ago because it is an emergency. And in one of the most horrible legal episodes I can recall in my professional lifetime, Congress passed the Military Commissions Act, which was signed in October 2006. It is really one of the worst laws you can ever find. Among other things it allows the president to define what torture is, it prevents using foreign sources, it bars access to the courts through habeas corpus, etc etc.

Now, immediately this law is being challenged in the courts even as we speak…The question will be, whether this case gets to the Supreme Court. Remember, this is a court which struck down the prior order by a vote of five to three and instead of actually meaningfully addressing their concerns, Congress simply passed something quite similar, in fact, worse. And so the question is how quickly can we get this back up to the Supreme Court? My own view is if you can get it back up to the Supreme Court, and a number of us are working on that effort, it will be struck down again.

So what are we looking for with regard to the courts? We are looking for this matter to get back before the Supreme Court before there is another change of personnel because the key figure is Justice Kennedy. Now that result has been made much more likely by the events of last Tuesday. Among other things that are going on is that a torture case has been filed against Secretary of Defense Rumsfeld and a number of lower officials including Ricardo Sanchez. In other words, the courts are a meaningful check. If we can keep them in the game and prevent them from being changed. So, at minimum, one of our goals should be to not have a change of personnel on the Supreme Court while these legal issues are being determined.

What about a second check, Congress? Much to everyone’s amazement, the Senate as well as the House has now gone in favor of the Democrats. That means there is a realistic possibility that this law could be repealed. Indeed, Senator Leahy and his staff are actively working on this issue, the repeal of the Military Commissions Act. They also have announced that they are working on enactment of a National Security Surveillance bill in the lame duck session. They are opposing the confirmation permanently of John Bolton. Senator Carl Levin has announced that they want to investigate the process of extraordinary rendition.

In other words, there is a chance of meaningful oversight for the first time. And among the various areas of possible oversight, which I know Citizens for Global Solutions has been favoring, is the idea of a 9/11 Commission on the Torture and Detention issue, which would function as a way of examining what has really gone on. There have been a variety of reports about Abu Ghraib. The thing that is so sad about Abu Ghraib is this: When I first saw the guy standing like this [arms out] with the black hood, I thought, “Where did I see this before?” I saw it in Turkey, I saw it in Saudi Arabia, I saw it in Kosovo. These are well known torture techniques. And I will tell you, Private Lindy England and Sergeant Charles Grainer did not think this up themselves. They were trained. Somebody trained them. And those are the people who I think should be held responsible. But if you read the Schlesinger Report…all of these various reports, these individuals are not held accountable. And so there is a need to do this.

When Charlie and I were in the government, we went to the…Torture Convention in Geneva and issued a report which said that the United States is unalterably committed to a world without torture, under no circumstances is torture ever justified or ever warranted. And we did not say that casually. As Charlie said, we circulated that statement to every branch of the United States government. It was signed off by 500 people. Nobody thought at the time that we would be seeking justification that somehow we could use torture now…Where people are being tortured and they speak, what they say is usually not credible. Why? Because they say something to stop being tortured, not because they are giving up valuable information. So we don’t live in a Jack Bauer world in which people are tortured and give up valuable information before the next commercial break. It simply just doesn’t happen like that.

So that’s what Congress can do. What can the executive branch do? How can the executive branch change and adjust over the next couple of years to restore the checks and balances? Well, this is like the famous joke about how many people does it take to screw in a light bulb. How many shrinks does it take to screw in the light bulb? You say that the light bulb has got to want to change. The executive branch has not shown enormous flexibility, although they did sacrifice Donald Rumsfeld the day after the election. Its hard to see why they should get credit for that given that he should have been fired four years ago.

But anyway, one thing that is an obvious goal is a return to diplomacy and this is something we ought to applaud. What are some of the things we ought to applaud? If the executive branch works with Congress and tries to implement a bipartisan approach to staged withdrawals from Iraq. We should applaud that. If the administration revives multilateral negotiations with North Korea in an effort to try and reduce the nuclear threat. We should applaud that. If the administration comes forward with a diplomatic approach to dealing with issues in Iran. We should applaud that. If the administration remembers there is a place called Latin America…to revitalize the free trade agreements. Frankly, I’m in favor of that. If this administration chooses to support the new Secretary General of the United Nations on U.N. reform and human rights and global health. We should support that.

Because after all, here is the bitter irony, this administration is more involved with the U.N. now than it has been in years, for Iran for North Korea for Lebanon for Sudan for Congo for Haiti. Why? Because it turned out that the unilateral approach wasn’t getting them anywhere. So they had to go back. And if they shift to an approach of begign neglect as opposed to active hostility in regards to the International Criminal Court, we should support that. And ladies and gentlemen, if they finally decide several years after saying that genocide is occurring in Darfur and take real steps to enforce the resolution, to impose sanctions…to support the African forces there or make a serious commitment to a peacekeeping force there, we should support that.

And in doing so, remember, not everybody in the executive branch is an ideologue. Josh Bolten, the Chief of Staff, is a reasonable person. The National Security Advisor is a reasonable person. Condoleezza Rice, the Secretary of State, is a reasonable person. The State Department is full of able and reasonable people who are accustomed to think of diplomacy as the first resort.

It turns out that the JAG corps, the military JAG officers are the ones who fought against the military commission. It turns out that the career officials were the most upset about what was going on. At Yale Law School, where I teach, in our first year class four students were military officers and I said to one of them, a very big guy, “Did you serve in Iraq?” He said, “Yes sir.” “How many tours of duty?” “Two duties sir.” “Where did you serve?” “Fallujah sir.” “What do you think of Donald Rumsfeld?” “Not much sir.” And he believed in the military and the mission of the military and he actually believed that the civilian officials were actually undermining that mission. So, the executive branch…to want the light bulb to change.

And that brings me finally to the role of civil society. Civil society can play an incredibly important role for promoting revitalization of the checks and balances to turn to world right side up. Because remember, over these past few years, as the courts have been waiting for the cases to come to it, as Congress has been endorsing these outrageous initiatives, as the executive branch has been driven by a subset of individuals within that branch - what has kept them in check?

The answer is civil society. Like who? Like the librarians…It turns out they weren’t that crazy about privacy records being turned over for the Patriot Act. Who was it who kept Abu Ghraib alive? The media or soldiers who when they saw these photographs on websites they were sickened and they drew it to the attention of the media. Or universities and students. Who is keeping the Darfur issue alive? STAND - Students Taking Action Now against Darfur. Who is keeping the issue of access to essential medicines for AIDS in Africa alive? The answer is students, among other people. Who is pushing the issue of gay rights? My children, high school and college students - they do not accept the notion that gays and lesbians should be treated like lesser human beings. Why? Because they know gays and lesbians, they are their own friends. Now in my day, many of my best friends turned out to be gays and lesbians but they didn’t tell me about it until many years later. Now, people are coming out in high school. And their straight friends are not going to let them be treated as lesser human beings.

Who else? Non-governmental organizations. The NGO movement has really been recognized in a whole group of areas. They are the ones who work on the landmines effort and they have been extraordinarily active. And they have been energized by the net roots and blogging and empowered individuals, the kind described by Tom Friedman in The World is Flat. By the way, who is responsible for this last election? It was YouTube that played the picture of Conrad Burns sleeping. The Macaca statement of George Allen would have been lost had it not been picked up by a blog and then put on YouTube and followed up until finally the mainstream media could not ignore it.

In other words, individuals are monitoring these activities and forcing people to pay attention. It’s the net roots that raised the money for some of these candidates and identified some of these candidates who ran. This is the first election in which the result was clearly changed by the empowered individual acting through the internet.

And so, my friends, my conclusion is this. In the last five years, the world has been turned upside down. We have given away much of the moral high ground. But, in the years ahead, particularly with the most recent changes, with the courts, the Congress…By working with civil society, we can return to the original basic idea that we should use cooperation among global democracies to solve global problems. So what I am telling you, very simply, is that the answer to the ills that we face is citizens seeking global solutions."

+ Back to Annual Meeting 2006 highlights