tv Harold Koh The Trump Administration and International Law CSPAN October 7, 2018 3:00pm-4:33pm EDT
the >> guest: that's been so pleased and noticing the light. i'm so glad you raised that because i try and give that sent the ways in the sense of life and the specific names of place and i'm a big fan about landscape architects do to help us appreciate the environments and so forth. so thank you for your work here at >> host: geraldine brooks, thank you for the last three hours. >> guest: thank you.
[inaudible conversations] >> good morning, ladies and gentlemen. while now, one of the things they been dean of this wonderful law school for five years and one of the things that attracted me to what was the wonderful sense of community and hopefully many of you i've not been here before will experience many students are here and they know how warm we are peered i will try this again. good morning, ladies and gentlemen. now that is a gw blog reading. ladies and gentlemen as i said before in blake granite had the privilege of serving as dean of this wonderful law school and it's a pleasure for me to welcome you to the lecture
today. this lecture started in 2016 and in a very short period of time it has become one of the signature events here at our law school. i want to give my thanks to a couple of individuals who are here. of course, jo brand two has been a wonderful signatory to this lecture, to michelle, her family who always supported the law school and international affairs. i want to say very briefly why this event is a signature and why it means so much to me and the other colleagues here at the law school. we live in a complex society and a complex democracy. never has there been a time where we have needed to legally train individuals to navigate the various intricacies of law and policy that relate not only of an effect our but our democracy of the entire world and of course international law and squarely within that realm. so many individuals seem to feel depressed and must tickle you don't have to worry about international law.
those of us who know about the modern practice of law recognize we are interconnect to if not by technology, but by the policies themselves. he gives me a great deal of pleasure to recognize the fact that our law school stands as one of the one that is really champion international law in a very big way. this particular lecture in particular gives us an opportunity to really explain to the general public white intellectual law matters, why it matters and domestic policy and why we need to learn as much as they can about it in order to make sure democracy functions very well. today's speaker knows that intimate lame and i've got to say a 10 a big admirer for a very long time. he spent an appointee at the state department. the thing that distinguishes our speaker today is not his
intellect, not only his service to his academy which has been great, but his willingness to exemplify what i have lectured about all of the world and not his lawyers always seek ways to enrich societies in which they practice. today's speaker does not. welcome, professor koh. we very much look forward to your remarks today. [applause] i want to give thanks to a number of different individuals, these particular programs cannot go forward without the help of a number of individuals in first and foremost is my colleague, sean murphy who is on international chair here and i'll introduce them in a moment. roseau solaria, brittle and wonderful associate dean for international and comparative legal studies in the burnett family professor of electorate comparative law and policy and also her very own donations and
run dean for advancement and development. i also want to give recognition to the aba section of international law. welcome, everyone too i will not only be a signature event but one that really exemplified the fact gw law stands at a real precipice cover really shine why international law matters. without further ado, gives me a great deal of pleasure to yield the podium over to my colleague, sean murphy, but do not international chair for international law. [applause] >> well, thank you beemer rant for that introduction is the person giving the introduction for professor koh who is the sterling professor of international law idea
university. he graduated from harvard university with his ba and his jd before he came to washington to clerk verse for judge malcolm loki for the d.c. circuit court of appeals and then for justice hurry back to the u.s. supreme court. early in professor koh's career he practiced here in washington d.c. a little bit in private practice, and the bit at the justice department office of legal counsel, but perhaps most importantly began his teaching career as an adjunct professor here at gw law school where he met his wife, christie. we like to think we have a significant influence on your life, harold. in 1985 he joined the faculty at yale law school rising in the ranks to become the 15th dean, which he was from 2004 until 2009. i do think it is fair to say that harold is a beloved
teacher, a prolific author of many books and articles principally in the field of international law, u.s. foreign relations law and national security law. he's also an active litigator both in u.s. court and an international court and tribunals with a particular focus on the application of human rights law. as the dean indicated, he has served his country in the federal government during the second term of the clinton administration, professor koh served as the assistant secretary of state for democracy, human rights and labor and during the first term of the obama administration, professor koh served as the state department's 22nd legal advisor. his latest book is "the trump administration and international law" which is the subject of a talk today. harold will speak for about 50 minutes or so and then we'll
have a period of time for questions and answers from you the audience. after the q&a. if you're interested in purchasing heralds new book, we are having a book signing in the adjacent room. feel free to stop by and have harold sign the book for you. with that, no further ado, please join me in welcoming to the podium, herald koh. [applause] >> well, thank you, sean. as we like to say in my family, my wife is also irish-american. the irish are the koreans have the west. [laughter] you brought me back to 26 years ago when i had just started as an associate at covington and burlington under the mentorship of the manly hudson troup often
i was asked whether i wanted to go teach a class here at gw law school on international business transactions, which met at that time at 5:50 on wednesday night. after my first time standing out on pennsylvania avenue trying to get a taxi here, i went and pleaded with ed, did an associate dean for where to get a parking space and he gave me one. i had also just started to date very christie fisher who is teaching the clinic here and it turned out she was living in some living in someplace not near the subway show she would stay for me to give her a ride to her apartment and along the way she would bring out toxins of books and other things she wanted to bring home.
and finally around week 10 she agreed she would go to dinner and the rest is history. last month i taught here for three years and it was a great experience and has really made me feel like this school is the second home. i also was lucky enough to teach at the oxford gw human rights program several times including in the first year and i'm very touched to see any number of friends and colleagues who are on the faculty. former students i won't embarrass them by singling them out. also the american society of international law itself, which has been an extraordinary institution in my life represented here not just by former president peter troup off, but president sean murphy and their marquee guys who was a former editor-in-chief of the yale journal of international law full circle.
and this is the place or the legal advisor's office has been continues to have the advisory committee meetings in this very room. and so, a lot of my career has sort of converged on this particular place. i sean mentioned, i'm my life has really had four strings. law professor, law dean, human rights lawyer and time in the u.s. government. please don't add these to. some of these [laughter] sentences ran concurrently. i mention this though because both chuck may not and joe brandt really exemplified scholarly engagement, engagement and public life, private is and also the making of a better world. i have tried to model that in my
own career, always being aware of how much these individuals have contributed. in my time i took many flights. this is the most famous picture of me. it was actually shortly after the fall of gadhafi. we were in malta, which was a small island north of libya and they got us a big military transport plane and because the secretary needed in a seat, and they gave her the first to appear to make it look less funny committee gave me and jeff felt in the second row and then people started taking our picture. so awkwardly restarted texting to each other to each other and i texted to her, look over your shoulder. that is what she has in fact reading. not who run the world, gross,
although it might be better if they did. as you can imagine, i didn't vote for our current president, neither did i wish him ill, but i did expect him to obey his oath which is to uphold the constitution and laws of the united states of america including the international law, which is part of our law. as you know and i see this advisedly as i was coming over here about just now he was giving a speech to the u.n. talking about his accomplishments in the international realm. some of the things he said sparked laughter from the u.n. crowd, which is remarkable given that they tend not to say anything. the treatment of international law has created multiple crazies are the question has become whether it can permanently change the nature of the u.s. relationship with international law and edition and our allies
and is there a counter strategy that could ensure respect for the rule of international law. and it occurred to me this may be a good ring to talk about it in to ride out the knot is what has produced a book, which john was kind enough to mention in which will be sold for 30% off for the first month at the book signing which is to follow. if you're interested in a short version, a judge came out to me and said i hear you wrote a new book about trump and international law. what is the thesis? and i said he's not winning. that's it. thank you for the lecture. [laughter] marvin famously asked what's going on. in fact, so much is happening, so many things have been day today is just very hard to follow exactly what is happening. how do we know he's not winning? why isn't he winning?
after all he said he would get tired of winning. if you listen to the speeches given out to the u.n., it is all about how he is winning. in the long run, will he win in what is really at stake? one of my dear young friends at the legal advisor's office that i want america to win, but cannot happen unless trump loses? and i said yes. america can win even if trump does not. and he said why? and i said because he does not own this process. it is bigger than he is. it occurred to me that actually was a very simple thesis of a book. it also happened to be the thesis of my life's work. so the counter strategy is what i call transnational legal process and i've written many articles about it. i won't burden you with them. it's both a descriptive theory and a prescriptive theory and the basic notion is quite
simple. interaction, interpretation that most compliance with international law comes from obedience and most obedience comes from internalization of norms. think about, you know, do you buckle your seat out when you get into a car when 50 years ago nobody did. that norm has been internalized anger now reminded of it i dozens of interactions if it turns out you don't buckle your seatbelt. the noise starts going on in the car. you can get a ticket. these things have led people to a default pattern of obedience. it turns out and i don't think i'm giving this as a great shock to anybody, and this is the primary mode by which laws enforced as well. what i've learned over my time outside and inside the government is both an outside
strategy, so if you want to push the government to do something different from what it would do or two-day do or two-day international law, you sue them. you provoke interpretation by an interaction. and if a court make sabra lane as a matter of u.s. law, it has been internalized and it's obeyed as a matter of domestic law. from the inside of the government, the strategy is related to somewhat different. it is what i call engage, translate and leverage. when in doubt, the u.s. until recently has tried to engage with its allies, not go it alone. it has a choice between saying that no law applies or translating from the spirit of the law as it does the latter. and third, when there is a lawful approach, and it tries to leverage her not to a broader long-term solution. what i want to argue and i do
argue in this book is when you put together the many, many things that have happened in donald trump became president, transnational legal process, both the outside strategy of engaged, translate and leverage in the inside strategy -- the inside strategy will leverage in the outside strategy of interaction, interpretation and internalization are the main strategy of resistance. people talk about the legal resistance. that's what it looks like. now if this is too complicated, just remember the most famous prizefight of all time, mohammed ali against george foreman in zaire, where famously in the first round ali went to the ropes. people thought that foreman would kill him. he had after all knocked out people who had knocked out all the. menacingly, george foreman approached him and began
battering him while ali lay against the ropes. and then people noticed that he was taunting him and that foreman was getting more and more frustrated. in the seventh round if you've been watching, one round before the conclusion, most of the commentators you can watch on youtube said, only a second matter of time since all he fails to in fact, the next round he won. that is what is really happening now, that the strategy to keep checking the u.s. executive branch with a series of resistors, but in the present of punch himself out by extending capital on initiatives that donut and his or his' chances for reelection. these initiatives are starting to get tired. how to illustrate this.
the engaged translate and leverage strategy was actually pioneered by secretary clinton had talked about using smart power, the full range of art and tools at our disposal, including respect for law and human rights and public partnership to achieve certain outcomes. you can call this the obama clinton doctrine because president obama said repeatedly, i believe in a smarter kind of u.s. leadership where we combine military power with other kinds of leveraging around certain legal norms. now, why do i mention this? to trump doctrine is the opposite. instead of engaging, disengage. america first. instead of translating rules of law to modern situations, say there are no rules of law. it's a black hole. the u.s. acts based on its national interests, not rule.
there is little or no leverage, no diplomatic engagement strategy and the rule of law is rarely mentioned. now, it is a little much to call this a strategy while we wait asked over the last few years now is daily impulses. but they push in that particular direction wherever possible reverse obama, reverse with hillary clinton would have done. if you have to exercise power, do it in an isolationist way. hard power is preferred preferred. withdraw from global leadership, undermine international institutions and when challenged, make extreme claims of presidential power and judicial deference. to pursue these type ticks, certain kinds of means are they necessary. you have to demean or denigrate both expertise and science, diminished diplomacy, got the
career bureaucracy. when the media challenges you call a fake news. demand deference for everyone and perhaps most important, flood zone initiative. so many that each day you can't remember all the outrageous things that happened the day before because more initiatives are coming. in fact, this is even part of the strategy, the so-called new shiny object approach. every time something bad happens come across something else. terminate someone's security clearance or the like. but i don't think we should trivialize the deeper sentiments that are driving this america first view. trump believes the united states has lost competitiveness. it is the zero-sum relationship with the world. what hurts others hurts us.
globalization has made our middle class were soft and therefore the problem is immigrants and alliances. in order to make america great again we should not only resigned from world leadership, but engage in a series of bilateral deals and thought of pursuing the multilateralist approach we pursue since world war ii. what i want to argue us while this approach has probably made it more coherent than it is, it is failing. he's not winning. flushes take the most recent averages alcon, separation of children from their parents, zero tolerance. why is it failing? first of all it enraged everybody. originally, the objection was captioned recall immigrants and so they decided to go to separation of the border.
but the president at the border, even while less constrained and elsewhere still operates according to lob are subject to lob other is operating according to law or not. it turned out there were two district court injunctions. one that said you couldn't hold families and their children apart from more than 20 days, the so-called flores order. the second order in which you said that all the families who've been separated should be reunited. after these two court orders came into play, the trump administration has reverted to the old policy. people are now kept together. they are now going before a judge to challenge the floor is rolling. they're not going to be successful. people can stay together if they
wear ankle monitors. we are back to the old program, catch and release as they call it. not understanding by the way that the people who are stopped when they come to the border, some of them are refugees. they have a right not just across the border, but also to be found to be refugees for they have illegals that is which entitles them not to be returned to their persecutors. and to treat these individuals as presumptively criminals is to misunderstand and ignore their status under international law. let me give two other examples in the mall move through this more systematically. the united states withdrew from the u.n. human rights council. this is the second, first time under george w. bush, actually think it was better that we withdrew voluntarily. if we hadn't, we would have been avoided off. it's a lot harder for the united states to come back into a u.n.
organization. my friend david sullivan is here when the united states have been ordered off. we could reengage in another administration because after all we are still a party to the u.n. charter was still coming in on civil and political rights. where would the international criminal court having another example of the famous bullpen monster. bill clinton signed the wrong statute, said we'd ratify it said we'd ratify it in due course a certain problems got fixed. bolton came in as undersecretary and famously signed the letter. when i was legal adviser we talked about it, we said we'll just ignore it. the signature is still there. he hasn't changed anything. we will simply have a policy of positive engagement. bolton's speech last week added the u.s. would lock or sanction
icc judges or prosecutors from entering the united states. how will we do that? some of these people have diplomatic passports. they will enter the country under the protection of law, international law. you know, bolton said something to satisfy this particular audience. that hasn't actually changed anything? well it's irritated people at the icc, but that is nothing new. okay, let me around very quickly for a variety of areas essentially to assert the same he says over and over again. he's not winning. in more than that, while he's trying to change things, the changes have not taken hold. let's start with immigration and the most prominent. here we have a systematic targeting of immigrants. the travel ban camera, reiterations come attacks on
sanctuary cities, the wall were strict border controls. now the policy of family separation, ending both daca, and deporting dreamers for the misunderstanding the refugees who are favorites of international law and are treated like terrorists. and towards the courts who have systematically blocked the initiatives in this area. the real strategy is shock and awe, to scare people so that they voluntarily.com. in that aspect, it is to be working. another is a remarkable discrepancy. trump's willingness to bomb for series children who he will not let into the country. last week they announced they will drop the refugee threshold to historic low in the modern. so here we are. that's my wife christie with the
red hair, former gw professor. that's her daughter, emily. that is me. trump had his inauguration, those of you there saw was the largest inauguration in history. [laughter] except for the fact the very next day there were a lot more people on the street protesting him not just here but everywhere in the world enchanting this is what democracy looks like. so we have the next day the executive orders in the travel ban one. now, the travel ban, the muslim van as it is repackaged in my view is bad law. it violates the religion clauses. it is bad politics. why because it is both over and under inclusive. trump was calling for extreme betting, but in fact that is exactly the policy we have.
extreme betting is an individualized policy, not a group policy. in fact, nobody from this country is excluded have ever committed a fatal attack on soil. the process was abysmal. no senior officials even thought before it was issued. the economics are not predict did. projections are a loss of point a billion in the first year. so as my little piece of this, myself and my students organized a group of former national security officials who had held clearances up until six days before the travel ban in which we argue the travel ban was not based on any national security threat. it was a ban in search of a claimed threat, not a threat but actually addressed a real. what happened next, you all know. deep state revolted. the state department for any
number words, a thousand people signed a dissent channel cable in the first few days. that almost never have been. i think they could've got 10,000 people if they just held out longer. in fact, we are better than this. if on a trumpet not asked the justice department whether it would defend the ban. turned out sally gates wouldn't do so. she then resign. our student that you law school became involved early because one of our clients who was an iraqi interpreter who was served american soldiers was coming into jfk and block even though he had a green card. they filed on behalf his piazza abs petition. more than that, they uploaded to the internet the cloud, a class-action cbs case with templates and around the
country, every international airport, lawyers, volunteer lawyers to knew nothing about immigration went to the airports, downloaded our students template, but the names of our clients in, showed it to the immigration officials on their iphone's and got people released. and soon, uber drivers, lyft drivers in the taxi drivers have joined in the demonstration. in less than a week a movement which had begun on the street in big cities had moved to places where people were coming in across the border. the military started to object. a four-star iraqi general said i've been spending my last couple of years fighting for the united states or alongside and i can't come, soon lifted. 163 tech companies, republicans. the coke brother is coming to
cheney, john do. let me repeat, and the coke brother is, dick cheney, john yoo said this is too much for us. dozens of access solidarity, 20 courts ruled against and then suddenly the executive order number one is withdrawn. meanwhile, our allies wane in concluding republican members of congress, state attorney general's coming universities including i'm happy to say my own. the rise of resistance from within the bureaucracy attacking the administration's positions including leaking culture. the museum of modern art did did did did an individual who had been excluded. the super bowl. i never used to drink budweiser, then i found out actually even though i don't like it i now drink it.
[laughter] "saturday night live" but directed alec baldwin's flagging career. jimmy kimmel, stephen colbert are. by the way, a lot more people watch these people for news than watch whoever the old guys are in the mainstream networks. and flowing out through social media through a variety of ways and then travel ban to point out by that time we had 49 officials. the government had modified the travel ban and that reminded us basically the same as saying by bill clinton, which is doesn't matter how much lipstick you put on that, it is still a. it doesn't matter whether you call it something other than a muslim ban, it is silly muslim ban. marches for climate, science, a day without immigrants when you couldn't get a meal in new york for less than three hours.
a day without women were pretty much nothing happened anywhere. i know what you're going to say. it got to the united states supreme court and in the last ruling by anthony kennedy as an act of justice, he frets in his concurring opinion. the world is going to want to know. do we care about civil liberties and then he joined the minority opinion. lillian and comprehend double discrepancy between what he was saying and what he was doing. chief justice john roberts says okay, don't cite cora matsuda to us. the japanese internment case. it's overruled. the court not to has nothing to do with this case. if you believe that, i have a travel ban to sell you. and that's what they did. they sold it to a credulous court. but here's the point. in this country, we judge people
by the content of their character, not by the color of their skin or who they were shut up. and what is the basic similarity between the muslim ban in court not do as they went the other way. and, it is a very narrowly decided case. but it is not over. transnational legal process will continue. although supreme court's decision did and for those of you with civil procedure if they didn't give a preliminary injunction. that is the. the claim was it is not unconstitutional on its face. but if the waiver system doesn't work to fairly address individual cases, it could be unconstitutional as applied. even as we speak in michigan in a variety of other court, but begins her back before the u.s.
court challenging the travel ban in trying to get a permanent injunction except this time based on evidence, not just on their preliminary injunction. moreover to statutory ruling. if congress changes hands, they could reverse the travel ban tomorrow. and it doesn't bind the european courts. none of the countries on travel ban three-point know is very direct flight to the united states. in the same way there's a satellite litigation about cia black sites or guantánamo and the european court of human rights, litigation will continue before other forums and other countries will have to decide whether to protect or defend the travel ban. now obviously, the critical question is who will replace justice kennedy?
we have for nationalists. and then there's brett kavanaugh. who was my student. it makes me wonder whether i'm a very good teacher. suffice it to say, for all of the things that are swirling around him today, the real issue to be is what is his view of international law? if you read, haunting, and extraordinarily bad gratuitous concurrence for joe besancon, this is a person who is highly nationalist. you'll notice that the two major statement that he made, one when first nominated in second word i believe in the american rule of law. what about the rule of law? could you imagine someone getting up insane i believe in the tanzanian rule of law, but the extent to which the tanzanian rule of law is different from international law by go with the tanzanian rule of
law. now, we will see what happens with judge kavanaugh. it is certainly an interesting unremarkable set of events occurring before our eyes. the bigger question is how much does trump really care? in fighting this battle, he has reduced his space to the least common denominator is. we have for the first time in a long time a coalition government between traditional republicans, most of whom have now been driven off and every time trump devotes energy to these kinds of issues, and it takes him away from the issues that his allies really care about, which are things like repealing obamacare, which they've repeatedly failed to do. tax cuts on infrastructure package which is now off the table and judges. in trump is not a person of sustained intellectual
engagement. maybe he just preferred to check the box and move on. that general thesis, checking the box and moving on characterizes the lot. you knew that rex tillerson would not be a good secretary of state when at his confirmation hearing asked about human rights situations in china, russia, egypt, saudi arabia, the philippines said i'm not ready to judge. you're not ready to judge whether the united states condemns execution. how much do you need to know? this went on with troubling softness on rights throughout the middle east, gutting the career service which we all know. the proposal to remove from the state department's mission statement democracy and human rights. i was assistant secretary for democracy, human rights and labor. both of them to my job.
the attack on the icc, the downplaying of singapore, human rights, the withdraw from the human rights council. and then tillerson after one of the most pathetic terms of office inspired by treat. now, one of the most prominent areas, though, was trump's statement that torture works, will use waterboarding a lot worse in the first days of the administration executive order -- draft executive orders for flooding which would restore black sites and restoring enhanced interrogation tax pics. which is contrary to the obama position finally embedded in the framework's report just before obama left office. in torture as the well-known is banned and forbidden by both treaty and statue. in particular, the torture
convention to which we are a party without reservation says no circumstances whatsoever may be revoked as a justification, including war. the next time you hear politicians say get the lawyers off the backs of the general, you should say don't you dare. that is the difference between lawful activity in wartime and acts that are war crimes. now as it turned out, trump's affinity for former military, mattis, pompeo, sessions, kelly, mcmaster before he laughed and even jena high school has led to a firm commitment that they will not exercise or execute a torture order. so this norm is for now internalized. how about paris.
it is another example of engaged, translate and leverage by the obama administration to get to an historic agreement. and here is the catch. it entered in november 2015 and you cannot withdraw for four years. november 4th, 2020. that is the day after the presidential election. in fact, trump can't even give notice of an intent to withdraw until november 4th, 20 night team, which is still a year away and more. so, while he announced that were leaving, we are killing. and if this is a must buy book, one of trump's standard tactics is resigning without leaving, which makes us lame ducks and we stayed in and we underperform. and then you add pruitt hardly. he loved first.
it has the legal force of 20. i have an article coming out at the yale law journal and about two weeks, which argues that in fact goldwater versus carter does not create a unilateral general power of termination of treaties. the implementation of this for the clean power plant will be litigated for years. other players are stepping up and compensating, so we are still in. and as you saw with the united nations we were in art years for a number of years. when an administration that it do pay our dues came in we made it out. the point is the same. trump doesn't own climate change. we do. and he may want to leave in 2020, but that is like my saying i will come back to gw and give another lecture in a year. if you're ready to buy the books, i'm ready to come back.
how about trade. you're my friend steve is here. the united states famously helped to set up the transpacific partnership. the u.s. designed it, trump abandoned it and now the situation is one where it appears the united states to rejoin. 35 trade pacts under consideration and we are a party to just one of them. we saw in bob woodward's book that trump wanted to withdraw from the korea u.s. free trade agreement. guess what? we need south korea for nuclear diplomacy. didn't happen. and then he wants to withdraw from nafta. but it turns out after he negotiates the mexicans and forgets to include they say we are not with the program. he said trade wars are easy. that is not so. and if tariffs are hurting people in the states which are
trump-based and an economist george w. bush put it well. trump thought of the u.s. would stop the process would halt. the world just moves on without us. how about the iran nuclear deal? another example of engaged, translate and leverage, which led to a reduction of enriched uranium that piles by 98% and give us unprecedented eyes on the iran process and the international atomic energy commission. trump signed the renewals for a while and then resigned. but we're still in in. at least until the end of 2018. the other parties don't want to disengage. we lost most of our leverage when we released the first launch of sanctions. many of the israelis see negotiation is better than building a bomb. the iaea has repeatedly almost a
dozen times said that the agreement is working. key republicans including bob corcoran paul ryan both sleepy and unless for -- more beholden don't see the effort. many want to preserve the deal for the simple reason that how can we have a deal in north korea if we walk away from the deal in tehran? it is not possible. which brings me to north korea. my mother lived in north korea. i've been to north korea three times, total of about eight days. mike pence famously says the era of strategic patience is over. what does that mean? were any year of strategic impatience? there is no military option. trump starts with threats, fire and fury. he says i will destroy your
country. 25 million people, many of them by relatives, who by the way happen to be civilians. that is a flat-out threat to commit war crimes. tillerson wanted to negotiate. trump mocked him. and then we go to singapore and suddenly trump is all about diplomacy. he's all about a joint declaration, except for the fact that why would the koreans ever signed a deal with the guy who just walked away with the iran nuclear deal. then what we want in iran, in north korea is another nuclear deal. we had a basic premise, you don't bring the president of the united states to see the president of north korea except at the end of a process in which they've given up their nukes. the idea of going at the start, you know, kim jong un is not a
very nice person and he looks at me, but he is winning. after all, he decided i'm about to enter a poker game on about the bargain. i'm going to build nuclear weapons. that's one way to get chips on the table. and then breaks his mountain. he decides i'm going to de-escalate and get more chips on the table and i'm going to arrest people and before trump shows up over the sun. he's not paying enough attention and congratulate me for not all get credit for that too. and then, trump says we have agreed on moving towards denuclearization. any lawyer in the room knows when you hear the word toward you better get it in writing they didn't do that, did they? it was a handshake and it turned out they don't agree on what demutualization means. it's not a complete reversible
denuclearization. and so, we are now back to strategic patience plus. our president is wandering around new york baking a dictator to meet with him to show we still have momentum with multilateral diplomacy been the number one priority. on the people who left the state department are being asked to come back, but the basic strategy of containment, and sanctions, and how about this. it's in the first that you would expect donald trump to say to kim jong un, i am much less concerned about your nuclear weapons, which pose much less of a threat to us the near cyber. you are the people who did the want to cry virus. we will take down your grid unless you say you will not threat our civilian assets. never mention. after trump decides he should
deal with taiwan, turns out he needs china. fortunately for trump, south koreans have adopted a good cop strategy to go with the bad cop strategy in a trump. and now the question and challenge is how to restore this to exactly what we had before. it's party talks. russia, why is this man's ailing? well, here's an irony. trump as you know is famously soft on russia. but the world moves on without him. the hacks violated international law. obama responded by expelling diplomats and then congress passed a russian sanctions bill. this was then resisted by trump until the salt. tack, which forced his hand. now ironically the u.s. is tougher on russia then has been in a long time which trump now
points out. now under domestic law mueller keeps working away in the evidence is mounting. helsinki was a disaster on it known where trump abandoned accountability, he didn't even mention it in the first go. then he told the world when asked a direct question, i believe putin more than i believe my own intelligence services and then he said i didn't say would. i said wouldn't if you believe that. and then he met one-on-one for two hours alone. so we don't even know what he said. beating people on both sides of the aisle to say he's subject to a compromise. but it had an interesting effect, which is pompeo sees this issue and reaffirmed that the united states is still opposed to the annexation of crimea. another example of trump's ineptitude leading to the policy
which had existed before. this brings me to ukraine. i'm one of the lawyers for ukraine after trump came in, the decision was made to activate transnational legal process by ukraine itself. a case brought by covington and berlin, jonathan gillett, david zion on financing of terrorism and non-elimination of racial discrimination in crimea. we have provisional measures moving through argument. we are also moving to an arbitration before the sea tribunal about theft of assets below the ocean as well as multiple bit arbitration. and finally, this is chapter five of my book. america's wars. a lot of people misunderstand that obama worked hard to narrow
u.s. conflict. he rejected the idea of a global war on terror. a lot of the fuss was about drones, where his position was drones can be a lawful and effective tool to dismantle specific terrorist networks if used consistently within international law. indeed i was the subject of a speech i gave -- as legal advisor in 2010. the point was that drones are not a strategy. they are a tool. part of a much broader tool of engage, translate them leverage. the broader approach set forth in the 2016 frameworks have integrated targeting and attention, more transparency, lawfully authorize contention and lawful cooperation with nationstate who rely on law enforcement. what we are to be concerned about today is the so-called
self generated 9/11. people are furious. radical muslims are furious that comes policy, not least the travel ban. we have a situation in which somebody who's been radicalized by government policies becomes a homegrown attacker who decides to shoot up a nightclub or take a truck and drive it down this tree. that is not an occasion for that person to be sent to guantánamo or to a military commission. ironically in one of the arguments i make in my book is that trump may be in a better position now to close on time of day and obama. why? because all you have to point out is that his son and obama didn't do. the real question though is whether the decision by the supreme court 5-4 on the travel ban will trigger a whole range of national security masquerade
as justice sotomayor called them in the areas of trade, family separation, the band in the military, the department of energy being discussed to force coal companies to force energy producers to buy from coal companies. finally, i says. the main thing to see here is the trump administration has seized on half of hillary clinton's plan, the hard power peace with now many open questions. we partner with the turks are the kurds, how vaughan underwent law. where are the smart power planks of that plan dismantling the money, dismantling the arms, discrediting the strategy. and most of all, trump's on-again off-again approach to assad will allow him to say and give substances to anger.
i have written many pieces of the united states should have been 2010 gone to a diplomacy back by force approach, which would have achieved the ceasefire, gotten past russian veto, protected refugees amid accountability against assad a real possibility. it is not clear now whether it is too late. it was possible to work on the root causes to create humanitarian quarter, to manage the refugee flows. and remember, it was the syrian refugee crisis which led to all of this, not just brags that, but the anti-immigration wave that led to trump himself. it may now be that where we're at is seeking accountability for assad, we've surrendered syria to assad, accepted a massive global crisis and tolerated the revived use of chemical weapons.
what to say in closing. what is really at stake is the theory to perpetual peace. counting global governance post-world war ii doesn't mean world government. i mean some international society where free software and state cooperate in the zone of law to explicate moral commitments to human rights. the counterpoint we are now see an evolving its authoritarian spheres of influence where there is no truth in where dictators do deals and change enemies than friends on a day-to-day basis. now someone could say why don't you turn this around. what is the deep truth of what trump is saying? my view would be that his philosophy is wrong. it is not something that will just be a pendulum swing. a fundamentally misunderstands the world. our relationship is not zero-sum. mobilization can make the middle-class better off.
in the grandson allies are part of the solution. a fixation on sovereignty ignores the real meaning is commentary these days. why would focus on bilateral trade deficit was so much of products are actually made in multiple countries. in most fundamentally that the future of global success in dealing with multilateral problems like climate change is u.s. leadership, not resignation from world leadership. .. the rise of nationalism, anti-globalism. we see the
troubling trends all around the world. and the global aauthoritarians are playing by the same book. they attack courts. they reject diversity and inclusion. they demonize immigrants. they disparage bureaucrats. attacking the media. reward their cronies, and claim constitutional checks and balances must give way to the will of the people. but as neil sudeco once said, breaking up is hard to do. the united states is meshed in many regimes. it's not easy to exit many americans want what the international regimes are providing. they don't want hurricane leading to massive flooding with flor sequence others because of the melting ice cap. and so what they are looking for is that these times past, the question though is will trump's continual assaults
let the whole system come unglued? sure mohammed ally won the fight, but you saw the toll it took on him in the long term. will this order come unglued because of strained alliances, exhausted media? europe crumbling, and russia and china filling the gap. so this is where we are. while donald trump international law, or will it trump him? will his coalition hang together or will it crumble? will traditional republicans leave him, or will they stick with him through thick and thin? how could he get knocked out? he could lose congress. he could lose both houses of dwres or one. he could get impeached. he could be removed by the 25th amendment. he could be prosecuted, or eit could be in
november after a blue wave election, suddenly nikki haley, and mitt romny, or even mike pence look better than someone who create issues every day. what is the tally so far? it's worth toting it up. what's going on? he got gorsuch. tax cuts but usually unpopular. 60 executive orders no real impact. 30-plus senior officials resign. the kavanaugh appointment teetering. two losses on healthcare. the bureaucracy in turmoil. see the anonymous op-ed. the travel ban gone for now but the litigation continues. torture order, promised not delivered. withdrawal from international organizations, not delivered. crawl from paris, not yet. iran deal, new york needs an iran deal. trade wars, the
agreements battered but in tact iran nuclear deal, renowned but still exists. russian sanctions passed over trump's objection. multiple indictments plea bargains, more to come. his campaign manager, his private lawyer, his accountant, all giving state's evident. lowest approval rating in history. losses in the key bi-elections and perhaps a blue wave coming in less than -- in now a month. the question for us is who speaks for america? when i talk to foreign audiences i say now, the america you trusted is still here. we are still here. donald trump doesn't speak for us. it is our enduring civic institutions, our courts, our media, the bureaucrats, international organizations. civil society, even empowered individuals standing up and the message is not just resistant, it is
reintriliant. international law and transnational law are organic. and someone who operates on an entirely transition actual basis doesn't get the extent to which what he is trying to do is attack an org anik relation. for now the rule of law has been keeping u.s. democracy within the guard rails, and these institutions remit our society and rebuild that consensus after he was gone to promote a process of humane globalization. let me conclude with one of my favorite jokes. the 2,000-year-old man, mel brooks, he's asked the 2,000-year-old man, before god was there someone else? and he says oh, yes, there was this guy named phil. and they said what did he say about phil? and he said well we said phil, you're all powerful, you
dominate the landscape, don't beat us and don't kick us and don't hurt us. one day lining came out of the sky and struck phil dead, and we said there's something bigger than phil. [laughter] well when we turn on the tv, there's donald trump. if you look at my book cover, it shows donald trump as i think he is. not an imposing president but a wizard of oz projected on to tv screens confrnd by a world that's not buying it. what's bigger than trump is transnational legal process. he doesn't own the process, we all do. there is an important world order to preserve and there's a counter strategy to preserve it but i am not one of these people who believes this system is self-correcting. if you read jack gold smith's book you know it's a pan glossian approach about when best of all possible
words is the world we live in. he uses the term self-correcting. we have to correct it. as dr. king said the, moral arc of the universe is long, but it bends towards justice. but it doesn't do so on its own. we have to work together to bend it. that calls on all of us who are committed to democracy, the rule of law and human rights to ban together in what has been a dark time to keep this resist sequence resilience going. i think the gw law school is a place that's a center of teaching and learning on this subject. also a place my wife and i call home i'm excited to launch my book tower here at the school that first gave me my parking spot. [laughter] which allowed all this to begin so many years ago. thank you very much.
[applause] >> if you have a question please come to the microphone. the. >> guest: thank you so much herald for that careterristically brilliant and powerful analysis. my question has to do with the way in which the obama administration's approach to some international law issues, particularly in the national security domain, might be said to have paved the way for some of the roll backs that we have seen under trump. so for example, during the obama administration, national security officials on some occasions declined to adopt muscular international law limits on executives action. for example use of force, and
other related areas. but instead, chose to adopt limits as a matter of policy and practice rather than law. and some examples where we saw this might be the obama administration's statement that the detention standards in additional protocol to the geneva convention apply as a matter of practice. but the obama administration didn't say they applied the matter of customary international law. we could also look t presidential policy guidance on the use of force outside areas of active hostilities as imposing as a mastery of policy certain restrictions closer to human rights law in these areas, but the obama administration articulated the view that the more minimalist standards on the law of conflict apply. so the question is, do you think that the obama administration missed some opportunities to articulate
issues as a matter of international law that may have set up a few of these areas where we've seen trump administration roll backs? >> harold: i'm not an apologist for the obama administration. i was disappointed in. respects that it didn't sees an opportunity to do more, and earlier. but i am not a fan of the idea that the real culprit is obama and not trump. what i think obama did is he confronted a new set of issues. and tried basically to deescalate wars, narrow the focus, use more targeted tools. eliminate torture. he should have closed guantanamo. it was possible to do, he just didn't do it. obama
had just f juch tiny legislative majorities. a certain point lindsay graham was running obama's national security policy because there was a belief he could be the critical vote on all of these issues. and you may have noticed there is a big difference between lindsey graham and obama. nevertheless, he should have done more, and but at the end of the day i think their most fundamental mistake, misprediction, which was mine as well, was hillary clinton would succeed them. they didn't have to get anything right, they knew she was tron and tough and would use the momentum to pursue a lot of issues, and then that didn't happen. and so what was obama's increment element got swept away, appeared to get swept away
by the tidal wave of trump's reversalism. but -- at the end of the day while i fault obama for not doing more, and i fought everybody for mispredicting the result of the election, and who could have -- if you read hillary clinton's book, "what happened," it's an astonishing account that nobody could have predicted that came together that led a person with a 3 million vote majority lose a couple of key states by less than 10,000 votes all in. now, the link between policy politics and law is very important. obviously in a world where we could move easily to new statements of international law wield. but f we'd shift default patterns after a while they become policy. an example i
give in my book was a huge fight over whether additional protocol won section 75 on humane treatment will or will not be customary international law. and i don't know why, but people in a five-sided building i used to work in -- by the way one of the problems is that in government everybody has to agree. or you can't clear something. when i gave my speech in 2010, at the american society of international law, the part on drones was the last 20 minutes because i wasn't sure i could get the rest of the speech cleared. and in fact they were clearing the speech as i was delivering it. people from my office snuck in and stuck the last draft, the last ten pages on the podium. one commentator wrote when he got to the drones part, co. became rivetted with his text. true.
i didn't know what part of my text was the cleared position of the u.s. government. now, what was interesting to me was the first questioner after i gave the speech, which defied a whole set of limits on our policy got up and said, so the obama administration position is we can balm anyone anywhere, for whatever reason. to which my answer was i didn't say that. the reason for the speech was that you actually listen to it, not impress upon the speech your preexisting prejudices about how obama's just like george w. bush. but, one thing i do in the book which i think is important, is there are three different kinds of constraints. one is law, and we're familiar with that. it can be domestic or international, and as i suggest often international norms are internalized and become domestic law. another is
policy. something could be lawful but awful. in other words, good law, bad policy. and then a third is politics. and we all saw this in hamilton you don't have the votes. and often in the selection of options different people are arguing for different positions but the ones that get chosen are the ones that are from the among the lawful options. from among acceptable policy options and from among those that are politically available at that moment. in light of what is usually for the president overriding imperative to get reelected. it turns out that the interchangeability of these means that advocate and people inside can use the blend to try to get positions shifted or locked. rebecca imageber has written an article called
interpretation catalyst. a lot of it's picking the vehicle by which a legal rule gets stated. for example, a lot of the issue around the torture ban was getting it to a certain place, and then having the by 2013, and then having the u.s. have to give a presentation at the torture committee, where everybody knew that they wouldn't accept anything other than a categorical statement. and even the statement that was made was less than categorical. but i think for someone to now try to change it have on the grounds of policy and not law would trigger a massive pushback. so, getting to law requires keeping up the fight, inside and outside. my teacher and many of those in the room, used to say i have never apologized for trying to make
sure my government o basis the rule of law when i'm inside or outside the government. and since you niv knowhen you're going to be in the government that's been my policy as well. if at the end of the day someone holds up my book and i'm in the government, and they say how come you are not obeying this, i will go back and read it. >> guest: thank you for your wonderful presentation. one thing you touched on is that the judiciary has been helping to prevent some of these executive orders instead of going into effect. what i'm understanding is one thing that congress and the president have been successful is in appointing a lot of judges, conservative youngs across the country and whether kavanaugh, we don't know what's going to happen, but if he does make it on the supreme
court, that isn't something that's going to be irreversible or we can do something about it afterwards. so what is your feeling about that? i mean i think the judiciary has been our strongest branch of government in the last two years. what do you see going forward, if most of these courts are packed or with conservatives and if kavanaugh or someone like him gets to be on the supreme court? >> harold: let me talk about the courts, kavanaugh in particular on the travel ban, trump lost every single hearing. thirty five in a row, and won five to 4 in the supreme court at this incomprehensible opinion by justice kennedy. now, if kavanaugh replaced kennedy he's not going to ingiej in that kind of hang wringing. he would
reject the charming betsy principle. he doesn't believe that international law should be used to construe statutes. he doesn't believe we should assume lose are passed with international compliance in mind. and he wrote long concurrences on these basically as job applications. these are appalling opinions if you read them. he quotes my own articles and i was his teacher. pretty clear to me he never read the article. he cites them incorrectly. he doesn't understand what the basic proposition of it is, it's to look scholarly. now, among the trump appoint ease there are some processes, for example in new york, the judges who have been nominated in new york are basically ones schumer approved so they're trump appointedes, most of them are reasonable. we have good judges that have been
appointed down here, dabney frederick, has been appointed to the bench. we do have a bunch of judges that could pass the straight-fates test. under a no filibuster rule, those people are getting voted through narrowly, even in the face of demonstrated incompetence, or evil. there's a bizarre theory being put forward that getting elected by people who don't know what you've done, somehow launders the things that you've done. or getting -- remember that jeff sessions couldn't get confirmed to a circuit court, but he got elected and now he was attorney general. he probably regrets that. there's going to have to be some reorientation. the filibuster rule, especially on supreme
court nominees played a very important role. which is in a closely divided senate, somebody who's not from your party has to vote for you. which forces these issues to the to the middi clerked for harry blackman, and the first nominee was cars well, second haines worth. and then blackman. i thought blackman was a great justice. bork was rejected. then gins b and kennedy. if kavanaugh is defeated, and god only imoadz what's going to happen but people want a full investigation, it could get kicked over to past november 6th and then we suddenly have the question of whether they can put up the same kind of person. so,
my colleague at yale made the ridiculous statement, kavanaugh is the best we can do. no, he's not. [laughter] garland, let's face it, he has a better record. he didn't get a hearing. it's pretty clear he's not the best you could do. and i was told on leaks day when they thought hillary was o going to win they were ready to confirm garland. so i actually think you're right. the kavanaugh appointment is a lot more important than trump. because kavanaugh would be around for a lot longer than trump will be around. so we have to keep all these things in perspective. i do think that this is the one area in which they've essentially delegated this to a private group, the
federal society in and are moving along. a lot of the people who are playing bawl are doing precisely so they can get these judges. but, for now, even the judge quan in the district of maryland is a republican trump appointee who is a career lawyer in homeland security. he has the travel ban case. he's reuld against this administration on multiple occasions. he understands how the government works. he's not buying it. i brought a case for haitian ref geez before a republican. sterling johnson, jr. so i think we can continue to monitor this process. final point, if trump is reelected,
bets are off. primarily because career people in the government are ready to stay for four years. older people don't want to retire because they have their pension in. younger people would like to serve in the government for a short time so they would like to serve a government they believe in. but the vast middle of the bureaucracy usually waits out an administration that they don't support. but when it gets to year five, that's when they start to say, time to do something else with my life. that's what i think makes this midterm so important. it sends a different kind of signal. i think obviously the presidential election will be important, and obviously think whoever gets put up as the nominee on the other side, where the person can capture this energy makes a big
difference. >> host: one last question. >> guest: thank you professor koe for your remarks. i am going to play devil's advocate. it's been xawvg being an advocate for human rights liberal democracy and rule of law. but in this case, i'm thinking of an interview a televised interview of president trump. maybe it was candidate trump. he must have been president given the subject. he basically famously equated russia's behavior in meddling in our leaks as well as suppressing human rights and extra judicial killings. matters like that. trump said you think we're
innocent? you think the united states hasn't killed people? he might have also mentioned meddling in elections. my question to you is whether we've learned anything or have any regrets about the united states's actions through the cia or perhaps the state department going years back. granted, in terms of meddling in other elections around the world, or intervening in the sovereign domestic politics of other countries. i've certainly have the view that most of those effects were probably in furtherance of democracy rule of law and human rights, but now we've seen other countries doing it to us, and not just russia, but primarily russia. i'm curious about your views on what we've learned and where we go from here. thank you. >> harold: obviously the united
states struggled to achieve a more perfectly union. we're always an imperfect state, and this is a particularly imperfect state. my father was born on a small island off the coast of cuekorea. he was the first guy on the island to go to sol, i've held arpgood place in the government f got to teach at this university. i don't know if this would happen anywhere else in the world. i think there's faults in this country available nowhere else. does that mean we don't do things dramaticalliy wrong? no. in 2003 i wrote an article called unamerican exceptionalism, the united states has good and bad exceptional. we show exceptional leadership. the united states has driven the
system of multi-laterals and human rights and the rule of law. but, on certain key areas, the united states exhibits bad exceptionalism in the sense of promoting double standards and somehow suggesting it cannot be judged by the systems. the international criminal court is a good example of that. and i think what not enough people realize is that every time the united states engages in this bad exceptionalism it diminishes our about to do good exceptionalism. the abeloveiousness of its this is illustrated by the entirely self-absorbed speech that our president was giving the yeufn. he wants to be a deal-maker. do you think anybody's making a deal with him? at one point -- and the combination of -- my old colleague at yale, charles
black, he is from texas. he likes to say, sometimes the purab luz of evil and incompetence intersect at the highest possible point. i have to say on a day in day out basis that's what i see. on the other hand i do believe that people around the world realize our leaders are not the best people in the country. that is true everywhere in the whole world. that you have extraordinary human beings, extraordinary civil society, and terrible leaders. but the leader come and go. and the strength of the civil society endures. in 1974, i was in south korea and it was a military dictatorship. there
was an attempt to assassinate the president. they declared marshal law and i was told i couldn't leave the country. and on the same day, richard nixon resigned. gerald ford became president. in the united states there were no tanks in the streets. i called my father and i said why is it that in korea, this troubled country, which has never had a peaceful transition of power, this is happening where as in the united states the most powerful country in the world they just transition power according to the constitution. and my father said the that's the difference between dictatorship and democracy. in a democracy if your president, the troops obey you, and in an authoritarian society if the troops obey you, they call you
president. that's the difference between the rule of law and the rule of individuals and that's basically the idea that no person is above the law which is at the core of what mar bureauivist madison is all about. the test of commitment is not in the good times, it's in the difficult times. the test is are we ready to fight for it? my brother's a doctor, and he said to me, you know when people come and say i have cancer, you don't know whether they're going to live or die. it depends. it depends on how hard they're ready to fight, how good a doctor they are, when people ask me well our democracy serve? i don't know the answers. i don't predict, i don't think it's self-correcting. i think a it's a matter of how hard we
fightic, how how shrauob you ari told my students, if david had 100 rocks to hit goliath -- the lawyers have to understand the fight they're in, and the picture into which particular fight sits. the reason i wrote this book is there's a big picture. all of these episodes are part of this big picture. do we have an overall approach? mohammed ali had an approach. i have an overall approach, i call it transnational legal process. people don't have to believe that m. let's hear alternatives, let's talk about a broader approach that will preserve this rule of international law that we have committed ourselves, particularly at gw law school
and the american society for the last 70 years. it's under attack now. those attacking it aren't leaving the field. i don't think we should either. [applause] >> you can watch this and all other book tv programs from the past 20 years at booktv.org. type the author's name and the word book in the search bar at the top of the page. >> we're pleased now to be joined on our set by fox and friends co-host and author brian kilmeade. now brian kilmeade's book is "andrew jackson and the miracle of new orleans," i should say history book. is just coming out in paper book, the third history book. mr. kilmeade what was the war