This panel was convened at 5:00 pm, Thursday, April 4, by its moderator, ASIL President Donald Francis Donovan of Debevoise & Plimpton, who introduced the panelists: Harold Hongju Koh of Yale Law School; and Anne-Marie Slaughter of Princeton University.
INTRODUCTORY REMARKS BY DONALD FRANCIS DONOVAN
Welcome all. I'm Donald Donovan. I have the great privilege of serving as the President of the Society at this time. This is a plenary event entitled "International Law in the First Obama Administration." I'm going to tell you in a moment what we are hoping to discuss here, but first let me introduce our two participants. It's a bit silly to be introducing Harold and Anne-Marie to this audience, so I'm going to do it very briefly.
Anne-Marie Slaughter is the Bert G. Kerstetter University Professor of Politics and International Affairs at Princeton. She was Director of Policy and Planning at the State Department during the first two years of the Obama administration. She has a long history with the Society, including service as its President from 2002 to 2004. And it was announced yesterday that, as of September, she will become the President and CEO of the New America Foundation.
Harold is the Sterling Professor of International Law at Yale. He served as Legal Adviser to the State Department during the first Obama administration, having earlier served, from 1998 to 2001, as Assistant Secretary of Democracy, Human Rights, and Labor. He, too, has long been an active participant in the Society.
We want to do two things this afternoon. We want to consider, as the program indicates, "International Law in the First Obama Administration," but there will be two dimensions to the discussion. We first want to talk to Harold and Anne-Marie about the role of lawyers and the challenges of lawyering in difficult foreign policy determinations with a legal dimension, and then, as the discussion moves on, we'll talk about some of the decisions they had to make and the competing objectives in some of the actual decisions that the administration faced.
We're going to conduct this event as a conversation. We'll first ask each of Harold and Anne-Marie to address a few questions briefly, and then move to a discussion with the audience. We have an enormous number of interested and highly knowledgeable people on the floor, so we want to make this a roundtable not just on the dais but in the room.
So if I may start, let's talk about the generic (if there is such a thing) difficult foreign policy decision facing the administration. What is the role of the lawyer? In a preliminary discussion, Harold and Anne-Marie pointed out that in their most recent positions, Anne-Marie was the client and Harold the lawyer, but of course Harold had been the client himself in his previous post, and Anne-Marie surely knows what it is to lawyer.
So perhaps, Anne-Marie, you could start and talk about how you perceive the role of the lawyer when you're facing a difficult policy decision.
Thank you. So first of all, it's great to be here and to see this crowd. This Society just grows and grows and grows.
Let me ask you to imagine Secretary Clinton's 8:45 meeting every morning. For anyone who thinks that the role of a lawyer who is also a foreign policy person is diminishing, this will give you heart. The Secretary herself, of course, is a lawyer--who went to a fairly decent law school from what I understand--and Jack Lew and Jim Steinberg, who were her two Deputy Secretaries of State, are both lawyers, and her Chief of Staff, Cheryl Mills, and her Deputy Chief of Staff, Jake Sullivan, are all lawyers, and then you move down the table and her Assistant Secretary for Legislative Affairs is a very good lawyer, and you move around the table, and I'm there as Director of Policy Planning, and, of course, I'm a lawyer. So there is no shortage of lawyers in the room. And then, of course, sitting directly across from me is the person who is "the" lawyer, who is Harold.
So one of the things I want to point out to start with is just what it's like discussing foreign policy questions that have important legal dimensions in a room where most of the people are lawyers and, as Harold well knows, are not shy about actually trying to interpret whatever text they're working, which really was interesting because Harold then is the official lawyer. He's the person who is there to frame the issues and offer the set of solutions, and I'm going to let him talk about that, but what I took away from it was the constant awareness on the part of pretty much everybody who mattered at that table, that our space for decision was defined by the law, and then it became a question of whose interpretation is going to prevail. As the client--and this isn't going to surprise anybody--we're, of course, looking for interpretations that allow us to do the things that diplomatically we would seek to do, and that's no different than if we were a corporation turning to a private international lawyer and saying, "This is what I want to do. How do I do this?" So we're looking for the way to solve problems, but just imagine that your client was a group of top lawyers who all had their own opinions about the various texts. That means that "L" operates in a unique decisionmaking environment. So let me start with that proposition.
DONALD FRANCIS DONOVAN
Harold, your perspective?
HAROLD HONGJU KOH
So let me say first it's great to be here and to be with Anne-Marie again. At our 8:45 meeting with Secretary Clinton, the American Society of International Law was very present in the room because I would have the coffee mug from the ASIL with all of the presidents' names listed, including Anne-Marie's, and when she would say something, I would say, "Anne-Marie Slaughter? This Anne-Marie?" and point to the mug.
So Anne-Marie has pointed to one issue, which is that when you do international law for the Obama administration, you have many clients who are lawyers who have their own opinions. The good news on the side of the lawyers for the State Department is that you have a law firm--I think the best international law firm in the world--which is the Legal Adviser's Office ("L"), and that office has a variety of strengths, not just the particular individual lawyers and the relationships that they have with their clients, but most fundamentally that they are operating within a system of institutional precedent. That becomes very important because on any particular issue, I notice in academia people always want to ask, "What's the most original thing you could say?" In the government, the question is usually, "What's the most traditional thing you can say, and is there a precedent for it?" And it came as a great shock to some people when I finally told them, "You know, if an issue comes up, the most relevant source of precedent is not an article I wrote when I came up for tenure when I was 30 years old, it's the precedents of the office and the opinions of that office which go back to 1848. So the real institutional question is usually, how do you apply those office precedents to the situation that now exists before you?"
I think there are two big challenges within the department and one big challenge outside. The challenge within the department is that as the policy clients, many of whom are lawyers, are trying to formulate policy options, you, the Legal Adviser, are simultaneously, with your law firm, trying to determine which of those options are legally available. If you conclude that an option toward which the clients are headed as a policy matter is not legally available, you tell them, "It would be nice if we could do that; it's just not an option that is legally available to you." In the same way, the Legislative Affairs person sometimes says, "You might want to try that. But that's not politically available to you because Congress would never agree to it." So the various advisers in the room try to narrow the policymakers' options to the zone of the available and possible.
The second challenge, though, is after you decide an option is legally available. That doesn't mean they should pick it. Sometimes we say to them, "It's lawful, but it's awful." Which is to say, "It is legally available to you; I just don't think it's a good idea for you to do it." You explain the reasons why you don't think it's a good idea, but then at the end of the day, the policy client ends up making the choice from among the legally available options, and you have to be ready to defend it.
And then the third challenge is outside of the building: there is the so-called interagency legal process convened by usually, on our issues, the National Security Council Legal Adviser, who is currently Avril Haines. Present are the Legal Advisers for the State Department, Defense, the Office of Legal Counsel at Justice, sometimes somebody from the National Security Division at Justice, the Legal Counsel of the CIA, of the Director of National Intelligence, of the Chairman of the Joint Chiefs of Staff, and sometimes Homeland Security, Commerce, or Treasury, depending on what the issue is. The net result is that you have to come up in this process with what are the agreed-upon legal issues, carve them out, and then reach an agreed-upon interagency analysis before you return it to the policy process.
So there would be meetings that Anne-Marie would go to, which would be the policy discussions, in which if a legal issue would come up, they would say, "Well, let's leave that one for the lawyers." For the lawyers, we often went to meetings where an issue that was a policy choice among the policy clients would come up, and we would say, "Well, let's leave that for the policy people," who might be lawyers, but who are not there to assess the legality of the option. Then at the end of the day, we'll put these two things together at the end of the process in reaching a decision.
I just want to add...