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Dean Harold Hongju Koh speech

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“Human Rights in the Post-post Cold War World”

Dean Harold Hongju Koh

Yale Law School

2008 Florida Judiciary Luncheon

Florida Bar Association Annual Convention

Boca Raton, Florida

June 19, 2008

Thank you so much, Scott, for that kind introduction.

Mr. Chief Justice, Mr. President, Mr. President-elect, Judge Barkett, Chief Judge Moreno, Judge Cardonne Ely, and honored judges: it is such a privilege to be here at this important event, and in such distinguished company. When John Barkett, one of the most wonderful lawyers and Yale Law School alums I know, asked me to speak here today, he enticed me by noting that there are so many judges at the annual judges’ luncheon that you can get a TRO before the appetizer. And then he told me, “This is a chance to come down from New Haven to have lunch with our bar association President, Frank Angones– and 500 of his closest friends.”

< p>That cinched it for me, because I first met Frank Angones fourteen years ago, in October of 1994, when he was one of a group of Miami-based lawyers who asked me to join their lawsuit challenging the detention of thousands of Cuban rafters in a place that few had heard of at the time: the U.S. Naval Base in Guantanamo Bay, Cuba. In less than a year, that case went to the Eleventh Circuit twice and to the Supreme Court once, and I worked on it day and night alongside a group of lawyers who came to feel like family. That extraordinarily impressive group included a former mayor of Miami, two former U.S. attorneys (one of whom, Marcos Jimenez, is here today); managing partners at national law firms, and leaders of the Miami Bar. But from that shy and effacing group, one calm lawyer—Frank Angones—emerged as our “quarterback,” the lawyer who kept things moving, whose judgment we all trusted in a crisis, who never got rattled even under the most severe pressure. Frank did it all: he coordinated litigation, public affairs, community relations, political advocacy, and night after night, led teams of lawyers in several cities in performing mountains of work. I don’t know that I have ever seen a more determined or courageous performance by any lawyer. In the years since, I have often cited the example of Frank and the other lawyers in that case to my law students as examples of how an attorney – whether in public or private practice — can live his or her commitment to public service.

< p>As an immigrant who came to this country as a boy, Frank believes fiercely in the American values of compassion, respect for the rights of the underdog, constitutional government, and checks and balances in a system of separation of powers. That is why I was thrilled on the historic day when this great human being became the first Cuban-American President of the Florida Bar, And that is why when John Barkett asked me to speak here today, I told him that I would fly anywhere, anytime, to talk to anyone about Frank Angones and the profound commitment to human rights that his life and work personifies.

< p>It is in that spirit that I come to you today to address a most serious subject: Human Rights in a Post-post Cold War World. Let me say up front that what you are about to hear is not a partisan message: during my career, I have worked both in and out of government; in the Justice Department and in the State Department; I have worked for both Republican and Democratic Administrations, and I have sued both Republican and Democratic Administrations for human rights violations. And I believe that the task of repairing America’s human rights reputation is one of the most serious problems we as Americans face today.

< p>Since all of us have been alive, our country, the United States has been the world’s acknowledged human rights leader. That is certainly why my parents came here, and probably yours as well. Since World War II, ours was universally regarded as a nation that values human rights and the rule of law, that speaks out against injustice and dictatorship, and that tries to practice what we preach. Of course we have never been perfect, but we have usually been thought to be sincere. When I was a diplomat for the United States government, I was always struck by how seriously other countries would listen to what Americans had to say. They listened to us because we were powerful, sure, but they thought us powerful because they thought we were principled. Our commitments to principles of human rights and the rule of law were seen a major source of our soft power.
But in the last few years, sadly, much of this has changed. I travel a lot. Maybe you do too. And if you have traveled abroad in the last few years, you cannot help but notice the steady decline of our global human rights reputation. In the last six years, we have gone from being viewed as the major supporter of the international human rights system to its major target. Our obsessive focus on the War on Terror has taken an extraordinary toll upon our global human rights policy. Seven years of defining our human rights policy through the lens of the War on Terror have clouded our human rights reputation, given cover to abuses committed by our allies in that “war” and blunted our ability to criticize and deter gross violators elsewhere in the world.

After September 11, we were properly viewed with universal sympathy as victims of a brutal attack. But we have responded with a series of unnecessary, self-inflicted wounds, which have gravely diminished America’s standing as the world’s human rights leader. You know the list as well as I do:

< p> The horror of Abu Ghraib

< p> Our disastrous policy on Guantanamo

< p> Our tolerance of torture and cruel treatment for detainees

< p> Our counterproductive decision to create military commissions

< p> Warrantless government wiretapping

< p> Our attack on the U.N. and its human rights bodies, including the International Criminal Court

< p>And the denial of habeas corpus for suspected terrorist detainees that thankfully, was struck down just last week by a narrow majority of the United States Supreme Court

Whatever you may think of these policies, there can be little doubt that the impact on our human rights reputation has been devastating. A recent survey showed that in 1998, a vast majority of our European allies thought the United States was doing a good job in the area of human rights leadership. Today, a vast majority feels the opposite, and most Europeans believe that our policies on Guantanamo are illegal. In a recent Pew Global Attitudes survey, favorable opinions of the United States had fallen in most of our 15 closest allies –including Spain, India and Indonesia—even though those polled largely shared our views as to the greatest dangers in the world. And in these countries, amazingly, America’s continuing presence in Iraq is cited as a danger to world peace at least as often as the growing threat of Iran.

When I was Assistant Secretary for Human Rights in 1999, I told a UN body that the United States is “unalterably committed to a world without torture.” That was not a casual statement; I had cleared that statement with every relevant agency of the U.S. government. But in just a few short years we seem to have gone from what was a zero-tolerance policy toward torture to what now seems to be a zero-accountability policy.

Increasingly, that problem afflicts our popular culture. The New Yorker magazine reports that before 9/11 there were only 4 torture scenes on TV each year; since 9/11, the average has risen to at least 100 torture scenes a year, with US government officials regularly shown as justifiably committing crimes against humanity. On the popular television show “24,” American officials are seen committing torture nearly every week. The question we should ask ourselves is: “is torture really making us safer?” After all, “24” is the single most exported show via dvd sales to Morocco and Egypt. If millions of television watchers in the Middle East think that Americans routinely torture detainees, why should we expect them to act differently toward their detainees, who may in time come to include our own citizens and soldiers?

And what impact does this have on our ability to help to solve the acute problems around the world, especially in the Middle East? The Washington Post recently noted that the United States is no longer a player “across the board” in the Middle East. More countries in the region simply do not listen to us any more, and openly make moves that go against our stated policies and strategy.

So this is our problem: how to repair our tarnished human rights reputation? As a nation, and as families, we face many problems — the price of gas, housing, and food just to name a few– but as a law dean and human rights lawyer—let me ask you not to ignore what I think is the most serious problem facing Americans today.

The reason is simple. Since World War II, our country has been the balance wheel of the global human rights system, because our reputation for human rights principle and commitment to law made us the engine that drove the global human rights system. In the post-Cold War world, from the fall of the Berlin Wall to the fall of the Twin Towers, we tried to revive the human rights system, in the Balkans, in Sierra Leone, in East Timor, in the Hague. But since 9/11, the “post-post Cold War era” has seen us too often siding with Pakistan in defending torture, siding with China in defending arbitrary detentions of Uighur Muslims, and siding with Russia in defending human rights abuses against Chechens as part of a war on terror.

When our human rights system loses its balance wheel, why should we be surprised when the world seems to goes out of whack? And so, in the last few months, we have witnessed the constitutionalization of emergency rule in Egypt, the loss of democracy in Pakistan, stolen elections in Zimbabwe and Burma, and U.S. government officials who refuse to say that waterboarding is torture, even when it is committed by foreign countries against our own troops.

As Tom Friedman of the New York Times recently noted, last year was by far the worst year for freedom in the world since the end of the Cold War. Freedom House reports that almost four times as many states declined in their freedom scores as improved. And note this: among the least democratic countries in the world are those who derive most of their revenues from oil. So as the price of fuel rises, and with it the price of food, we must cut our reliance on fossil fuels not just to save money, not just to protect the environment, not just to promote our national security, but to promote the rule of law by reducing our dangerous dependence on a commodity that strengthens petro-dictators and weakens democracy worldwide.

If this is our problem, what is the solution? The answer could take hours, but let me suggest four simple steps. First and most simply, we must return to telling the truth. We must start by saying simple things. Waterboarding is torture. The leaders of Pakistan, Burma, Zimbabwe are crushing democracy and the rule of law,

Second, we need to stop pushing for double standards in human rights. If we believe that human rights are universal, we must respect them, even for suspected terrorists. If human rights are universal, we should not have law free zones, like Guantanamo. We should not have law free courts, like military commissions. We should not have law free practices, like extraordinary rendition; and we should not have law free persons whom we call enemy combatants.

Two years ago, the Supreme Court held that even with respect to terrorist suspects, the Government is bound to respect Common Article 3 of the Geneva Conventions. A few days later, I testified before Congress. A Senator said to me: “Professor, the last time I checked, the terrorists had not signed the Geneva Conventions.” I said to him, “Senator, the last time I checked, the whales had not signed the Whaling Convention either!” Like much of international law, the Geneva Conventions are not about them and who they are. It is about us and who we are. It is about how we’re obliged to treat them, however they behave. And as a matter of universal principle, we must give all detainees basic humane treatment, however heinous they may be.

Just last week, the Supreme Court took an important step to eliminating double standards in its landmark opinion in Boumediene v. Bush. I know that decision is controversial, but if you read it, you will find that it is clearly rights. As Justice Anthony Kennedy wrote in his majority opinion:

      “Security subsists … in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. … We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be part of that framework, a part of that law.” (2008 WL 236928 at 33-34)

Just hours after that decision issued, Ann St. Peter-Griffith, now of the Miami U.S. attorney’s office, one of our cocounsel in the Cuban rafters case, sent around to the co-counsel in that case an email that read “Wish we had this precedent, issued … today, 13 years ago—constitutional habeas rights extending to GITMO. Not exactly a ‘rights free zone’ anymore.

Third, we need to put our own house in order and stop pursuing human rights disasters of our own: whether at Abu Ghraib, Guantanamo, or other Black Sites where ghost detainees are being held. Not only must we dismantle old bad policies that have been adopted since September 11, we should stop new bad policies that some are now offering to replace them. In the days since the Supreme Court’s decision in Boumediene, for example, some are now calling for Congress to respond to the habeas corpus decision with a Terror Court that would allow suspects to be held in potentially indefinite detention. But when did our standard for due process of law become “at least it’s better than Guantanamo”? And why, we should ask, won’t a system of preventive detention become a breeding ground for terrorists, as occurred in British prisons for the Northern Irish? And what about “credible justice?” Why should those in the Middle East we are trying to persuade accept the justice meted out by secret terror courts? As a nation, we should not accept that indefinite detention without trial, abusive interrogation, and other unacceptable practices have now become necessary features of a post-9/11 world. Our goal in the next period should be to end debacles like Guantánamo, not to set its worst features in concrete.

Fourth and finally, we need to support, not attack the institutions and tools of international law. I know that international law and the U.N. are imperfect; but frankly, they are all we’ve got. We need to support the International Criminal Court, and to endorse universal standards by ratifying such human rights treaties as the Convention on Disability Rights, the Convention Against Forced Disappearances, the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child. Right now, amazingly, we are one of only two countries in the world that is not a party to the Children’s Rights treaty. The other is Somalia, whose excuse is that they have no organized government. We have no excuse.

I know that the last eight years since 9/11 have been tiring. But mark my words: the last eight years are far less important than the next 8 years: For the next eight years will determine whether the pendulum of American policy will swing back from where it has been pushed, or whether it will stay stuck in the direction in which it has been pushed for the last 8 years? In the next eight years, we simply cannot allow our policy toward international law and human rights be subsumed entirely under the War on Terror. There are simply too many other global issues that demand our country’s attention.

This should not be a partisan point: One presidential candidate recently wrote:

      “We Americans recall the words of our founders in the declaration of independence, that we must pay “decent respect to the opinions of mankind”.. . We all have to live up to our own high standards of morality and international responsibility. We cannot torture or treat inhumanely the suspected terrorists that we have captured. We will fight the terrorists and at the same time defend the rights that are the foundations of our society.”

The speaker was John McCain, but the same views have been expressed just as strongly by Senator Obama, who said:

      “We are going to lead by example, by maintaining the highest standards of civil liberties and human rights, which is why I will close Guantanamo and restore habeas corpus and say no to torture. … Because if you are ready for change, then you can elect a president who has taught the Constitution, and believes in the Constitution, and will obey the Constitution of the USA.“

Obviously, we must ask our government officials to speak up for these four steps—to tell the truth, to end double standards, to put our own house in order, and to support law and institutions. But the truth is, whatever Administration is elected next year, its leaders will have their own reasons why they cannot change course immediately.

That is why we the people, cannot leave it to the politicians. For the core concern of politicians is politics. That is why it is up to ordinary people, like us, to take ownership of this matter of principle. And in recent months, they have. It was the career Justice Department officials, for example, who resisted the government wiretapping program. It was the career military and government lawyers like Alberto Mora of this bar association, who spoke up against torture. It was a horrified soldier who gave the digital photos to the media that exposed Abu Ghraib. And it was that wild group of radicals, the librarians of America, who protested the extension of the Patriot Act to library records.

I know what you are thinking: in this world, what can one ordinary person do to change the course of human rights history? But surely a woman named Rosa Parks thought the same, before she decided that she would no longer move to the back of the bus. Surely a baseball player named Jackie Robinson had that thought before he went out to play on an all-white baseball team, in an all-white league.

And they are not alone. All over this world there are human rights heroes, like Nelson Mandela of South Africa, Aung Sun Suu Kyi of Burma, Andrei Sakharov of Russia, Vaclav Havel of the Czech Republic, who said “We can protect freedom if we have the courage to stand up, so let it begin with me.” To stand up, you need not be a world historical figure. At Hotel Rwanda, it was a quiet hotelkeeper, Paul Rusesabagina, who said, “Never again should mean Never again, so let it begin with me.” And so, armed only with a fax machine, a few bottles of scotch, and his wits, he saved hundreds of his countrymen from genocide.

Perhaps Robert Kennedy said it best in 1966, when he spoke the words inscribed on his tomb at Arlington Cemetery:

      It is from numberless diverse acts of courage. . that human history is … shaped. Each time a [person] stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, [that] crossing each other from a million different centers of energy and daring … build a current which can sweep down the mightiest walls of oppression and resistance.

And as proof that he was right, you need only look at the place where he said that, South Africa, a country transformed by a million individual acts of courage. All they are saying is a version of the Prayer of St. Francis, who said simply “Let there be Peace on Earth and let it begin with me.” So what each of us should say today is “We need to restore our country’s human rights reputation, one step at a time, and let it begin with me.”

Why is this so important? Because we hold these truths to be self-evident, that all persons are created equal, endowed by their creator with certain inalienable rights, among them life liberty and the pursuit of happiness. It was to secure the Blessings of Liberty to ourselves and our posterity that our forefathers ordained and established a Constitution for the United States of America.

What I am saying, in short, is that ours is a country built on human rights. What our laws and traditions tell us is that our human rights reputation defines who we are as a Nation and as a people. If this country no longer stands for human rights, then we really don’t know who we are anymore.

I know what you are thinking: that the pendulum has swung too far in the last eight years for any of us to do much about it. But still I have hope. Why? Because I know the story of a young boy from Havana named Francisco. His great-great grandfather wrote the Cuban national anthem. And when he was just ten years old, he came without his parents to Miami as part of Operation Pedro Pan. There he excelled at University of Miami and attended law school, then founded his own firm and developed a successful commercial practice. But in time, he turned his talents to human rights work, holding his own country to its own highest standards and ideals. From these beginnings, he became the youngest president of the Cuban American Bar Association, the first Hispanic president of the Dade County Bar Association, and most recently, the first Cuban American president of the third largest bar in the country. I am talking, of course, about Frank Angones, the man who taught me fourteen years ago to insist that this country must live up to its values and never to believe it when they say “it can’t be done.”

And think of a friend of Frank’s whose parents came to this country sixty years ago from Korea. His father’s dream was to serve democracy in his home country of South Korea. His government was overthrown, and he became a political exile here, with six children and no job. His only contact was with the Deputy National Security Adviser, Walt Rostow, whose brother Eugene just happened to be the Dean of Yale Law School. And at Walt’s suggestion, Eugene Rostow called my parents and invited them to come to teach a course at Yale Law School 47 years ago. That is how I got to New Haven. And that is why no day goes by when I do not recall that the reason I live in this country is because of an act of conscience by the Dean of Yale Law School.

In 1993, I was part of a team that won a court order winning the release of more than 200 Haitian refugees from Guantanamo. One of the refugees came in, wearing wrist bracelet that was bar coded, as if he were a piece of meat at a grocery store. He came to me agitated, holding a piece of paper on which he had written his name. And he said to me pointing to the piece of paper “ Mon Avocat (my lawyer). They gave me the wrong name!” And I realized that the name on his bracelet and the name on the paper were spelled differently. I took a step toward the immigration officials, planning to ask them to change it, and then I stopped. I realized that the only reason this man was in America was because of a court order that listed him, with a misspelled name. And so I turned back to him and said, “This is your Ellis Island. That is your name now.” And he looked at me and asked “What is your name?” And I said, “In this country, we spell it K-O-H.” And he answered with a smile on his face, “OK! So that is my name!”

My client had a son, who after the family entered the country, attended high school in Boston. And a few years ago, they were kind enough to invite me to his high school graduation. Only years after he left Guantanamo, that Haitian boy was dressed like a typical American teenager, and he walked across the stage to get his diploma, with his pants hanging low, and a baseball cap turned sideways on his head. A woman sitting next to me looked at him with alarm, and whispered to me: “Isn’t that terrible? What on earth will ever become of that boy, looking like that?” I thought to myself, “Lady, I don’t know about you, but that boy just might become a future president of the Florida Bar Association. Or failing that, maybe we are looking at the future dean of Yale Law School.”

So what I am saying is that in this remarkable country, anything is possible, so long as we stick to the fundamental values that brought us here. It is possible, in the words of Langston Hughes to Let America Be America Again.” He wrote

“Let America be America again. Let it be the dream it used to be. …

O, let my land be a land where Liberty is crowned with no false patriotic wreath –

      The land that never has been yet– And yet must be–the land where every man is free. … We must take back our land again, America! ….We, the people, must redeem … And make America again!“

Restoring our human rights reputation is simply too important a task to leave to politicians. Restoring our human rights reputation is a challenge for each and every member of this country we love. So thank you all for listening, and thank you all for joining me in this important work of making America America again.

Thank you.

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