HLS in the World | Samantha Power and Harold Koh

MARTHA MINOW: Good afternoon. I'm Martha Minow, and it is with utter joy and delight that I will be interviewing two distinguished public servants, two distinguished academics, and two longtime friends. So because they are friends, I am going to call them by their first names, and I have their approval to do so. Harold Hongju Koh, as everyone I think knows, is Sterling Professor of International Law at Yale Law School where he returned after his service as Legal Adviser to the US Department of State. And he previously served as US Assistant Secretary of State for Democracy, Human Rights, and Labor. He is HLS class of 1980. Come on. [APPLAUSE] And it just so happens that his father is a graduate with an LLM in SJD. He came here on asylum from Korea, and his sister also. And he told me recently something I did not know. He was baptized at the church, the Harvard-Epworth Church right here. HAROLD KOH: Where my brother was baptized at the same time. MARTHA MINOW: Oh, my gosh. [LAUGHTER] Somewhere along the way, he slipped in distinguished service as a dean of the Yale Law School. And I'm not going to say any more, because he told me not to. [LAUGHTER] Ambassador Samantha Power has worked as a journalist in Bosnia during the Balkans conflict as a founding leader of the Carr Center for Human Rights at the Kennedy School of Government, professor, author of the Pulitzer Prize-winning book, A Problem from Hell: America and the Age of Genocide, which she began as a third-year paper-- [LAUGHTER] SAMANTHA POWER: For a professor sitting next to me. MARTHA MINOW: Who did not get the Pulitzer Prize on her own book. [LAUGHTER] So you are two idealists who went into government. John F. Kennedy once said, I'm an idealist without illusions. And I'm wondering if you would describe yourselves that way now. Are you still idealists? How do you think about the gap, if there is one, between what you hoped for and what you found in the government? We will talk first about some smaller subjects. We're going to move up to that one. We're going to also talk about maybe some current issues under the administration of President Trump, and thoughts about dealing with the very difficult issues in the age of Twitter, fake news, polarization, black and white thinking, small topics. Warm-up questions. Confirmation hearings, experiences, best moments, worst moments? [LAUGHTER] SAMANTHA POWER: Harold was confirmed first, so he should go first. [LAUGHTER] And it took him longer, so he has more stories. HAROLD KOH: So the worst moment was that I had advocated that the US ratify the Convention for the Elimination of Discrimination Against Women. And in Belarus, they have a holiday which says that women cannot work outside the home. And so the committee that evaluates this said it was discriminatory against women. Now that holiday happened to be called Mother's Day. [LAUGHTER] And at my confirmation hearing, my mother is sitting behind me. And I had told my mother, whatever you do, don't make any facial expressions. [LAUGHTER] And one of the senators says to me, I understand you're opposed to Mother's Day. And you know, I happen to love my mother. I don't know about you. [LAUGHTER] And meanwhile, my mother is just infuriated. So she's making faces. [LAUGHTER] And I look back, and her granddaughter, my daughter, is trying to calm her down. [LAUGHTER] Anyway, that was the worst moment. [LAUGHTER] The best moment, but also in a lot of ways, the worst moment was-- [LAUGHTER] --you know, I was opposed, because as the dean of the Law School at Yale, I went to a fundraiser and someone said, does your curriculum at Yale Law School include Sharia law? And I said, well, you know, if someone makes a contract and they select Sharia law, you have to know it. And so anyway, this became the sort of meme on the internet, you know? Koh favors Sharia law. And so when we're coming up for the-- I had to get enough votes to get cloture. And I get called by someone-- I'd rather not say the country-- but he says, the former ambassador to this country is a big fan of yours, because you served together before. And so I think he's going to vote for you, even though he's a Republican. And I said, how do you know him? And he said, well, he's my best friend, and my daughter is actually his staff person who's writing the talking points. So he'll vote for you. So on the day of the vote, we're watching on TV. And the senator comes down and he's hanging around the desk. And then they suddenly say, one minute left. And then it says, senator so-and-so votes no. And I thought, he's supposed to vote yes. [LAUGHTER] And you know, meanwhile, we're not sure whether I got through or not. And then they count and they said I went through by one vote. And then my cell phone rings. It's my friend, and he says, did you see what happened? And I said, yeah, he voted against me. He said, no. He was for you before he was against you. [LAUGHTER] And he said he went down to the desk. And if they were going to vote against you, he was going to vote for you, and you wouldn't have gotten through. And I said, well, tell him thanks. [LAUGHTER] And then my son says, you just thanked some guy for voting against you. Well, that's Washington. [LAUGHTER] SAMANTHA POWER: I had a version of that on the back end, which was I thought one of my biggest supporters was a senator who voted against me in my confirmation, which ended up being a little bit smoother than Harold's or my husband, Cass Sunstein's, which was epic. It was epic proportional to the amount that he has written. [LAUGHTER] MARTHA MINOW: Which is really saying something. SAMANTHA POWER: --of how epic. But I had an exchange similar to Harold's. But I called this guy after, because I really thought he clicked. And he had worked very closely with Cass, and I'd met him three times in the pre-confirmation process. And then I saw him vote no. Just go and do the no. And I was like, oh, he made a mistake. Like, he's going to correct it. And so I called him, and he immediately let the call through. I had gotten confirmed, so I was in an otherwise great mood. And he said, let's just say you had more supporters than votes. I'm like, profile in courage. [LAUGHTER] But this is how this works. So the hardest thing for me-- and Harold has been through it twice, right? You've been confirmed twice. So I only went through it in order to go from being a White House staff member to being in my dream job as UN ambassador. And I had written a lot. Again, not compared to my spouse, but compared to most mortals. [LAUGHTER] And so I knew that they would pore over what I had written and what I had said. And I think like all of us, Martha, Harold, Cass, we never write with an eye to-- is someone going to look at this and make some judgment about me in some future day? You write what you think and you make it as precise and analytically sound as you can. But when the president told me he was going to put me forward, then I began to have panic attacks, thinking back to all the things that I had said that could be either taken out of context, or frankly just people are going to find them problematic, because they're views, and people have different views on the Earth. So it turned out that as I went over everything, the most problematic thing that I had written from the standpoint of the audience that I was confronting was something that actually was very influenced by my work with Martha when I was a student here and her work since, which was on the question of reckoning with misdeeds. And if as a country you've done things that are bad, you know, I think in the United States, there's a sort of fresh innocence that each new administration brings, as if we're not really affiliated with what has happened before us. So many of us in the Obama Administration oppose the word Iraq, and we think that counts for a lot with other countries. But in fact, we're still the United States, a country that went into Iraq in the way that it did and with some of the consequences that it did. So anyway, I had written this thing in The New Republic, saying that it was important that the United States reckon-- when I went back and read the sentence when I was in this anticipatory state, I was just thinking, this is not going to go well. But the United States should reckon with the crimes that we have or it has committed, abetted, or ignored, or something. So it was like, doing, complicit, and then bystanding. And so as I went through this process, you do this thing called murder boards where some of your friends and your associates and people you're going to work with come and they gather around you, and they start interrogating. It's like the Inquisition. MARTHA MINOW: Moot court. SAMANTHA POWER: Like moot court. Exactly. [LAUGHTER] And so Cass, my husband-- my new husband, I'd just married him at the time-- knew that one of my least favorite things was to be called Powers. And so every time in this murder board he would ask me a question he would say, Ms. Powers. [LAUGHTER] And then he'd say things like, aren't you for some big treaty, like, to govern our lives? Aren't you the person who loves big treaties? But the one that people kept coming back to is, you know, Ms. Powers, for which crimes should the United States reckon? And so the right answer, according to people who very much wanted me to get confirmed and be in the job as soon as possible, was to either repudiate what I had said or basically say something affirmative and happy about America. But I wanted to answer the question. And so we went through-- I probably had 20 murder boards where I just could not do this in a manner that was going to allow me to take up my position as UN ambassador. And so finally, I decided that I needed to find a way to say something that was also true. So if I couldn't talk about Abu Ghraib or this or that, you know, I could just talk about things that I do believe. And one of the things I believe is that America's an amazing country. I'm an immigrant to this country. Harold's family immigrated to this country. We get to be in the jobs we're in. And so I developed this little routine where when I was asked the question by anybody, I would talk about how much I loved America, and that was my answer. And so if you go to YouTube-- and then I'll end the story, painful story to recollect-- you will see the craziest exchange between two members of the human race that I can imagine-- [LAUGHTER] --where Marco Rubio, predictably, asked me, for what crimes should America apologize? And I think you can see him, because he expects me to just say, oh, I misspoke or that was excessive. But instead, I said, this is the most incredible country. [LAUGHTER] I love this country. America's the greatest country on Earth. I would never apologize for America. And you can just see his face. He's like, but I-- no, no. But I mean for what-- like, you said this thing, for which crimes-- you know, as I said, Senator, this country, I can't tell you what it was like to come to this country when I was an immigrant. To this country, just what the flag meant to me. You know, this is the greatest country. I would never, ever apologize. And meanwhile, I'm watching the clock, and I just know that I've got to get through-- what is it? They have the five minutes or the three minutes. And it just goes back and forth. And so finally he's like, OK. So let me get this straight. I'm asking you for which crimes we should-- and you're telling me America's the greatest country on Earth? I'm like, yes, Senator. [LAUGHTER] And I was confirmed 87 to 10. [LAUGHTER] MARTHA MINOW: You're here! SAMANTHA POWER: Somehow. MARTHA MINOW: So you each worked in these crucial jobs with large teams of people. How did law school prepare you or not prepare you to do that, to work with large teams of people with politics as well as law? What lessons did you learn about working with your staffs and across your staff with other staffs? HAROLD KOH: When you say large teams of people, there are different groups. You know, I was the head of a law firm, the Legal Adviser's Office, which has about 220 lawyers and 25 different offices. Many of them are the great experts on the subject that they're doing-- climate change or aerospace or the use of force. With that group of people, I just said to them, if you win, I win. And if we win, America wins. And I just tried to become as close to them personally as possible. Whenever anybody new got hired, I asked them to come and see me on the first day, because I thought it was so important that people felt like they had a relationship with me. Because you know, they were supposed to speak for me. We also had many interagency meetings, and some of my colleagues for those interagency meetings are here. And in those meetings, you try to find common ground with people who, frankly, have different portfolios from you. And you know, but you can always find something on which you can connect. MARTHA MINOW: Red Sox. [LAUGHTER] HAROLD KOH: That was with her. [LAUGHTER] There are a lot of Yankees fans. When I came up, I tried to stay away from the topic. [LAUGHTER] I couldn't negotiate my way out of that one. SAMANTHA POWER: You know, when I was at law school-- and I haven't had an administrative role like either of you-- my wing woman and wing man are these two iconic deans of the two great law schools in this country. I know there are others. [LAUGHTER] Good law schools and other good deans, I'm sure, but these guys are the cream of the crop. So I was a loner as a student, and had come from having been a war correspondent, and was a bit alienated, I think it's fair to say. When I got here, didn't-- they now have a class, actually, that Cass is teaching on legislation and policy and administration. I wish in my day they'd had something like that that would have brought home in the first year how law can really matter for real people. So congrats to you, Martha, for introducing that. Or had I been at Yale Law School, I would have been in Harold's clinic, trying to get refugees into this country, or deal with Guantanamo inmates, or the amazing work he's done over the years. But I was sort of a little bit removed. I think what I took from law school was what so many take, which is just the importance of analytic precision. And I think what bothered me about law school at one point was a sense of kind of moral equivalence or that it was all just-- felt very removed in the experience I had at least in the first year or two from the world. But then I had the turning point that-- and the best law school experiences people get the chance to have, which is when you realize that your convictions haven't gone anywhere. The things you care about haven't gone anywhere. Now you just are going to be better at pursuing those convictions, and more rigorous and more precise and more likely to anticipate what others are going to throw at you. And so I think I really brought a lot from law school, actually, to my team of people who worked for me when I was UN ambassador. And that was the biggest team that I've had the chance to work with in getting them to think in those ways. Like, that's just not enough to want to promote LGBT rights or to want to let X number of Syrian refugees into this country. You know, we have to find a way to meet people where they are, anticipate their objections, and then transcend them somehow. And that meant both them with other countries as we're trying to build coalitions or get resolutions through, but most critically, because most of the big-- the way these things you do in government, funny way, are internal. It's when you try to get your own government to be the best version of itself as you see it. And so for them to go into every meeting not simply thinking, what do I believe, and what do I think are the strong arguments, but having anticipated what's going to come at them around the table. To me, the rigor and the training you get out of law school puts you in a position to do that, I think, in an optimal way. MARTHA MINOW: Both of you are eloquent beyond belief. Harold, you've actually coined the term "the legal adviser's duty to explain," and described it as "a loyalty that the government legal advisers owe not just to their clients and ministers but also to their publics and national citizenry." And your commitment to transparency and explaining is quite distinctive. So I wonder, can you tell us about controversial occasions or occasions where controversy made that a challenge to performing that duty to explain and dealing with issues, like, there are classified information that you can't explain? And how do you manage that duty to explain in the age of Twitter? HAROLD KOH: So I don't know how to use Twitter. [LAUGHTER] So that's how I manage that. [LAUGHTER] In international law, there is-- customary international law is state practice followed out of a sense of legal obligation. Or as it's called, opinio juris. So if your country is a leading country in this process, as the United States is, and it's doing something that it thinks is lawful, it needs to explain that for it to be international law and for it to start a trend toward international law. So early in my time, drones started being used, and they were controversial. And I said I thought we should make a public statement of our position on drones. One, we thought they were lawful, and one, we thought they weren't lawful. Because otherwise, people would question whether we were following the law or not. Now, everybody in the meetings, internal meetings, thought they were lawful, but we had not articulated the rationale as clearly as we should have. And so the process of giving that speech actually generated more clarity and consensus. But one of the most amazing things I remember about that was I decided that I would give this speech at the American Society of International Law Meeting in April 2010. There were a couple thousand people there. To make sure that I had a speech to give, our office wrote about a 40-minute speech, and then the last 15 minutes were on drones. But when I stood to give the speech, the last 15 minutes had not yet been fully cleared. It had to be cleared by 100 people. And so I'm giving the first part of the speech-- [LAUGHTER] --and I'm wondering which ending I'm going to give. And then suddenly, from the back of the room, in comes the assistant legal advisor working on the issue. And he runs up to the podium, and he sticks on the last eight pages. [LAUGHTER] And it's all marked up and read and all this stuff. MARTHA MINOW: Redacted? HAROLD KOH: Well, some things were dropped. But you know, so it gets to this point, and your colleague Jack Goldsmith describes it by saying, at that point in the speech, Koh became riveted to his text. [LAUGHTER] Because if I didn't read word for word what had been cleared, it wasn't the position of the United States. I did a similar thing with regard to our rules of cyber conflict. I tried to do it again with regard to whether we thought that certain human rights treaties forbidding torture apply extraterritoriality. And I also tried to do it, again, in a speech I gave in Georgetown about our policies of what constitutes agreements that bind the United States. For example, the Paris climate deal and the Iran nuclear deal. And I think it's just a good thing for the legal advisor to do, because other countries are looking to us and trying to figure out whether we have a rationale. So say nothing or Twittering something is not the same as writing a legal opinion. SAMANTHA POWER: Tweeting. Tweeting. [LAUGHTER] MARTHA MINOW: Ambassador Power, you certainly are someone who has tried to explain and explain the United States. But sometimes to an internal audience in the United States, sometimes to a global audience, how did you? How should an ambassador navigate those issues? And speaking for those multiple audiences, along with the issues of secrecy, diplomacy, loyalty to the US, et cetera? SAMANTHA POWER: These questions are all so great. They're making me think thoughts I haven't had before, which is always a good sign. I'd say a few things. The thought I had when Harold was speaking is, number one, the number of times I sat in my security council chair with the United States of America in front of me when things were being broadcast live on TV. Which doesn't happen that often, but at the height of the Ukraine crisis, different moments in the Syria crisis, we'd just be live on CNN or on Fox or on MSNBC, and I'll be sitting there saying to my staff who I was normally, I hope, relatively nice to, but in these moments, not my finest moments of generous leadership, (WHISPERING) where the fuck is my speech? [LAUGHTER] But I'd be there, United States of America, like, all happy, happy. Like, (ROUGH VOICE) where is my-- I need my speech! [LAUGHTER] You know, and because I can wing it-- and that's maybe another thing that comes out of law school. You know the core of your argument, and you can be hopefully-- you know, find a way to express what you need to express. But there's this issue of the clearance process. Samantha and Harold don't just get to decide what US policy is on a given day, much though we might have tried. [LAUGHTER] So I just identify so much with that. I hadn't heard that story before about the drones, and I identify with it. Then the second thought I had-- and there are only three-- but the second is that to some degree what Harold was saying reminds me of something that I used to do with a very, very different audience, and in many ways, a more impressionable audience than the legal community. And that is my son who was between five and-- basically, eight years. I guess four and seven years old when I was UN ambassador. And you know, I would come home. Cass was teaching here while I was in New York. And so during the week, it was me and my young son and my daughter when I was able to be home with them. And some days, I'd come home, and the Ukraine crisis was the first really high-profile conflict that I was involved in where I'd come into the UN Security Council. Russia's just gone into Crimea. I'm sitting at the Security Council. Lights are flashing, cameras everywhere. I'm thinking, this is just like what it must have been like when they went into Hungary in 1956 or they cracked down Czechoslovakia in '68. And you know, it just felt so anachronistic and crazy that this was happening. And then I had that moment of like-- you know, those great standoffs that we've all read about and that I was so steeped in between the US and the Soviet Union. And I'm kind of drifting off and thinking about-- and then I'm like, oh, now I'm America. Like, I'm America. I've got to be America in that confrontation. And so we had-- I had very memorable exchanges calling the Russians out on what they were doing and so forth. And I think important ones, for what they were worth, in terms of moving public opinion of the UN, because a lot of countries would want to duck issues like this. And then sometimes, particularly if I've been out of the office, or excuse me, away from home for a long time because of the intensity of these crises and having meetings in the Situation Room till all hours of the night. And I'd get a window, and I'd take my son, and I'd take him just out for a burger before I'd go back to the office or something. And so one of these early sessions, I was describing my clash with the Russian ambassador. And you know, he said this, and then I said this, and I was likening it to if Putin came in and he took your toys and-- [LAUGHTER] --but I was kind of feeling as if I'd made a powerful statement, and it was getting favorable coverage. And people felt like I had adequately represented the United States in standing up against Russian aggression. And then my boy just looks at me. And he's listening, and he's totally into it. And he gets taking somebody's land and how wrong it is. And then he's like, but, Mommy, did they leave? [LAUGHTER] Did they leave Crimea? [LAUGHTER] Oh, man. That is exactly the right question. [LAUGHTER] If I ever forget that and get enamored with, oh, I really nailed the argument and miss the larger point, you know, that's when I've lost my soul in this job. And then the last example I just give is I think that we have to, in these jobs-- one, we need to do-- and this is a long conversation-- but we need to do a better job of selling what we're doing internationally clearly given what's happened in this country and the degree of polarization domestically. But my little neck of the woods was the UN where we also weren't really in the practice of humanizing the things that we were trying to get done in a manner that would convince anybody. And so there are sort of these habits of interaction that had grown up over many years, habits of diplomacy. They exist at NATO, at the OSCE. They exist in bilateral meetings between foreign ministers. And it's like, you know, you almost had to be a bit of a newcomer to just walk in, say, this is, A, boring, B, repetitive, C, no one's listening to each other. They're all on their phones doing God knows what, sort of like some law school classrooms these days. [LAUGHTER] When I'm back teaching here, we were not having laptops in my classroom. Just future warning. But I wish I could have banned phones from the Security Council, because the kind of back and forth that you imagine-- anyway. So I decided that if I couldn't bring the sort of man to the mountain of bringing the Security Council to every place where the consequences of our actions or inactions were being felt, then we needed to bring mountain to man, I guess. And so for instance, during the Ebola crisis, it was such-- you know, you have the UN briefing with the number of statistics, and these were eye-popping statistics of how many people were going to die. But there was some way that the UN managed to make the imminent death of 1.4 million people not that newsworthy. And it was just, da, da, da, you know. And so I thought, what can we do? Let's get someone from the region. They can't get out because of all the travel issues at the height of the epidemic. But let's get them to the UN base and beam them into this discussion. And we had this health worker I'm still in touch with, Jackson Naimah, who was working for MSF. He was just a-- he wasn't a doctor or a trained nurse or anything. He was just somebody who'd stepped up to the call. And he told the story of people coming in and trying to get into the MSF clinic, the Doctors Without Borders clinic, and there being no beds and no facilities, because that was the point we were at at the epidemic. It was just before-- just as President Obama was deciding to send 3,000 troops and health workers into the eye of the storm, thus enabling me to build and Kerry to build a big global coalition that managed to end the epidemic. Unbelievable. But we didn't know that that's where this was going at that time. And Jackson just described, like, a man carrying his daughter and begging him to be able to leave his daughter there so his daughter could get care. And you know, Jackson having to say no, because the treatment needed to be just so, and there were all kinds of infection control issues that were causing health workers and others to get infected. And he described the man leaving his daughter at the entrance to the clinic on the road just knowing he was leaving her to die. And there's that, and what that felt like for him, which he described. But then there's also the fact that the man went back to his family having carried his daughter and was going to infect everyone around him, because that's how the epidemic-- and so this is your reaction. This is-- I'm about to cry right now. This is all these years later. You can imagine in the Security Council at this time, it's the only time I ever saw people just-- and he ended his thing by saying, if you do not act, we will all be wiped out. We will all be wiped out. And you know, policies are made elsewhere. They're not made in New York. These guys, the ambassadors there largely are following instructions. But all I knew was that because the human was introduced and someone had communicated the stakes of this in a way that I never could have on my own, that each of those individuals in the room at least became allies and advocates to try to get their governments to do more. MARTHA MINOW: And put their phones down, too. SAMANTHA POWER: Yeah. And that. MARTHA MINOW: You know, it's kind of poignant. We're in this room that was named for Dean Vorenberg, which is the only room in the law school that has on the walls pictures of clients, pictures of people. And that was one of the reasons is, let's think about the people whose lives are affected by the law. So there's Tinker. We can go through them at some point. So that's quite an image to hold in our minds. I wanted to ask you each to say something about a highlight of your times in government. You've just giving us one. I can supply them, but do you want to offer one? SAMANTHA POWER: Do you want to go next? HAROLD KOH: Well, one incident that got a lot of attention was I went to China for a meeting. And while I'm there, I get a call. I was in the town of Chengshan. And it was the chief of staff, or Secretary Clinton. And she says, I'm in the office, and I realize it's 3:00 in the afternoon. So it must be 3:00 in the morning. And I said, you're in the office. And she said, can you get to Chengdu and call me on a secure phone? And I say to my handler, how far away is that? They said, four hours away. And I said, can I talk to you about it now? And she said, no, because of what happened. So she said, get there and call me. And then I said, is anybody in my office working on this? And she said, yes, your deputy who is also in the office at 3:00 in the morning. So I call her and I said, what's going on? [LAUGHTER] And she said, you need to get to a secure phone. [LAUGHTER] And then I said, is this like the thing with the scientist? Which was Fang Lizhi had gone into our embassy. And she said, yeah, but he has different physical characteristics. And then I realized that she must be talking about Chen Guangcheng who is this famous blind human rights activist. So I concluded that I must be-- he must have tried to come into our embassy in Beijing. So they say, go to the train station where you are, and we have US diplomats in every line. And whichever one is closest to the front, you go there. So I go, and there are seven lines, and I see this blonde hair right near the front. And I run up, and the guy goes, get on the train. We're going to go to Chengdu. We jump on the train, and we're sitting there. I don't even know his name. Then he said, I saw you at Harvard Law School. [LAUGHTER] He said, you know, I worked at a law firm, and I was in the East Asian Legal Studies program, and now I'm a member of the diplomatic corps. And I said, didn't you guys have an incident in Chengdu where someone came into the embassy? And he said, yeah. And I said, well, look, I've got nothing but time. So he tells me all about it. And we get to Chengdu, and I call back, and they said, yes. This blind Chinese activist escaped from house arrest. He's broken his foot, and he's outside asking to come into our embassy. Secretary Clinton would like him to come in, but she won't do it unless you give your legal opinion. And what we're concerned about is that we don't want everybody in the whole world to claim a right to come into our embassies. So I said, well, what if the United States claims a right to admission for purpose of getting medical care, which he can't receive elsewhere? I said, we could narrow that. And on that basis, they admitted him. At which point, I went and flew to Beijing, and there he was. And we sat together for 14 days. Meanwhile, during the whole thing, this largest meeting of 250 US officials with the Chinese government is going on, and Secretary Clinton was dealing with that all publicly. Meanwhile, in the backdoor, we're trying to persuade him to leave the embassy. And so we end up calling and making an arrangement that he go to NYU, because we thought that he could go to NYU Shanghai or switch to NYU New York if it all went south. And the negotiations went on for a long time. The main message that I learned, though, is you have to take cultural context into account. Because what finally happened is that the Chinese finally decided that they didn't want this to mess up the negotiations or the broader discussion, and that they would let him leave the country, but they had to do it their way. So we're watching TV and getting ready for the final announcement. And we had written two speeches, one which slammed them, and one which was sort of moderate and said, we'll see what happens next. And so they said, the foreign minister announces that he is allowed to apply for a visa to go to America. And we had a meeting, and suddenly everybody says, well, that's a disaster. He's allowed to apply. He could be rejected. And so I think we should give the speech slamming them. And I said, wait, this is Asia. [LAUGHTER] I said, the enforcement device here is not consideration. It's face. I said, have you ever heard an Asian father say, my kid is applying to Harvard? [LAUGHTER] If they're applying that means they're going to get in. And we have to respect their right to make the final decision. But he's going to get the visa, so I think we should give the other speech. So that's the speech they gave, and a week later, he came out. So I was there for 15 days. I had two shirts, and I took turns wearing one and then wearing the other. And meanwhile, my whole family didn't even know what I was doing. And then they're watching on TV. This was in the middle of a campaign where Mitt Romney suddenly appears and says that we've destroyed the life of this guy, and we should all be fired. And then they go on TV, and they show the list of people who are working on it who should all be fired, including my face is there as someone who should be fired. And then I got a series of calls from a series of congressmen, and they just berated me. And partly, I think, because I was at the end of my rope, I said, when we encountered this man, he had a broken foot, and he was lying in a ditch. Now he's been admitted to the embassy. He has superb medical care. We obtained a scholarship-free admittance to seven different universities, and now he's going to NYU. Can you explain to me how he's worse off for our intervention? And they couldn't answer the question, and they sort of dropped it. So anyway, I could tell you more. It was an interesting experience. But it's one that will stick with me. SAMANTHA POWER: And you know, I have a lot of highlights, as does Harold, that I could choose from. And I love sharing them, because I think there is a bit of darkness, you might have noticed, in the air these days. And when people, also even in our time, something like Syria and the Syrianization of the world, as some have called it, can really crowd out even the memory of what we did that was good and important and constructive, and even that which is lasting, which a lot of I think will prove to be. But the example I will give just-- and you'll see why in a second, because I'll bring it back today-- involves LGBT rights, which is one of the hardest issues to make progress on internationally. Because such a large subset of the countries that comprise the UN are themselves homophobic, certainly by culture and by practice, but also in the case of more than 70 countries by law where it's actually prohibited, as it used to be in this country. And so to try to push water uphill on that set of issues was never going to be easy. But over the life of our time, initially I've worked with Ambassador Rice when she was in my job in New York. And in that phase-- I was the president's human rights advisor-- we got LGBT rights recognized as human rights in Geneva. Harold was, I think, involved in that as well at that time. But then we started to think, OK, well, what more can we do beyond establishing this norm, which is important, and the effect of it? An altered norm may not be felt for generations, but it's still about changing the DNA. And one of the things I realized was that ISIS was, for all of the groups that they were targeting in different ways-- you know, Christians and Sunni who just didn't get with the ISIS program, Shia, Yazidis, you name it-- they also would very specifically target gay people and make them jump off buildings, kill them. And it struck me as just so shameful that the UN Security Council, the council, the premier maker and shaper of international law, could get its act together over things that are very important. Heritage, cultural heritage, you know, the sale of artifacts, the horrible things they were doing. That we could pass a resolution on. But the idea of even discussing ISIS's targeting of LGBT people was completely unthinkable. So I wish I could tell you that we got a resolution passed that criminalized or rendered illegal under international law what ISIS was doing to LGBT people. We did not. But we did manage to hold the first ever UN Security Council session on this issue. And true to form, we brought in two people who had been victimized by ISIS who were trying to get asylum in this country. One of them was granted asylum and the other was about to be and thought he was coming to this country. But some of what has happened with this administration appears to have derailed him. So he's likely to end up in Canada. But to have these two voices describing for an array of governments, many of whom criminalized homosexuality-- but for them to describe what ISIS was doing, it was sort of-- it's almost like people said, when will there be world peace? You know, when the Martians invade and it forces us all to agree in a way that we wouldn't otherwise. ISIS was like the Martian, you know? It was the one thing that surely everybody would be able to agree on. But this made those governments very, very uncomfortable. So we did that. And then not that long after that, the Orlando massacre happened. And in that moment-- and again, you have these opportunities in diplomacy that grow out of the worst forms of human tragedy, and in this case, human horror. But it's a moment that one needs to move very quickly to try to take advantage of for the good, to find some good in it. And sure enough, the revulsion over what had happened and the sadness and the genuine empathy for the lives that had been lost and the survivors allowed us, in the UN Security Council, to secure an action condemning the targeting of people on the basis of their sexual orientation for the first time in the, at that time, 71-year history of the UN. And so we did that, and then there is a core group of countries that come from North and South, mainly Latins, who come together to brainstorm about these kind of normative, incremental things that we can do with an eye to countries then being held accountable to these evolved and hopefully more progressive standards. And so I decided to convene the core group, because we only had a year left in the Obama administration, at the Stonewall Inn in New York. And so we had this amazing experience at the Stonewall Inn. And there we discussed a couple things, one very concrete and important, and the other symbolic and a little mischievous. The sneaky and mischievous, but I think, also, in its way an important thing was we decided-- or someone proposed-- I think it was the Dutch ambassador proposed that we try to paint the crosswalk that goes on First Avenue from, in effect, the rest of Manhattan into the UN in rainbow colors when the heads of state came to town. [LAUGHTER] And so you know, if we'd been really mischievous, we would have posted some kind of whatever, hidden camera where these-- like, Robert Mugabe crossing the-- [LAUGHTER] --you know, LGBT crosswalk, and you know, encapsulate that and broadcast it all over. We didn't do the second thing, but we did manage, thanks to Bill de Blasio-- but you can imagine the bureaucratics of getting this done. But we did manage to have the gathering of the heads of state, the entrances be rainbow-colored entrances last year at the UN General Assembly. The more lasting thing that we did was that we worked with the Latin countries. They were actually in the lead very deliberately, because when the United States is in the lead, that can create a backlash of its own kind. And the Latins led, and we created the first ever sort of UN human rights position dedicated to measuring the progress or lack thereof on LGBT rights. And that's the so-called independent expert on LGBT rights based out of Geneva. And today, this very day, this independent expert, who's a Thai gentleman who's actually stepping down, unfortunately, for health reasons, but he'll be replaced, presented for the very first time to the General Assembly the results of his months of work documenting. And so all the countries are upset, or they're working really hard to find a way to undermine him. They tried to defund the position. So having lost in the Human Rights Council when we created this position the Islamic states and the African countries in the lead, and with Russia and the Chinese support tried, through a bunch of different procedural mechanisms, to take the position away. And so having lost on the substance in a body that even for all of its flaws allows you to get things like that done in Geneva, because it's a smaller subset of the UN membership. They then tried to take advantage of the more mob-like atmosphere that there is at times in New York. And you know, I think it was on three occasions, basically tried different ways to defund the position, most of which we held off by one or two votes at different times. So for today, this individual to just go just even in briefing and giving a venue, a receptacle for advocates around the world to bring their stories and to bring the documentation of what's happening to them in their communities is what passes at least for a victory these days. And I should say, it's an example of something very, very important, and a takeaway, I think, for all of us after the last eight years, and coming into this four years that we will have-- maybe-- which is institutionalization, right? Like, it's one thing to be good for five minutes on LGBT rights and push it and have a meeting, but it's another thing to embed a position within an organization, which means that no matter what the position of the current administration of the US is on these issues, and it's not quite what ours was, that still lives. And this is the same thing that allowed us-- and this doesn't get enough attention-- on climate. You know, the natural course of things, international law would have been for the Paris agreement to have been negotiated on climate back in December 2015, finished. And then in the normal course of things, I think Kyoto, it took nine years for that treaty to come into force for the requisite number of countries to actually have gotten it through their domestic ratification. Even though we thought that Secretary Clinton was more likely than not to win, we did a full court press for the entire year between December 2015 and December 2016 to get the Paris agreement to come into force so that we were less vulnerable to the results of the November election. And got it done, actually I think, just a couple days before the election itself. What that means is even though we have to live with the horror of pulling out of Paris as a country potentially, if that's what happens, and we certainly have to live with the horror of pollutant policies and the undoing of really important regulations. What we don't have to live with is what we would have had to live with if things were allowed to just take their course, which is the complete unraveling of the Paris agreement as a whole. There'd be no Paris agreement, because the agreement comes into force when at least 55 countries who account for more than 55% of the emissions in the world are party to it. So we were party. We may now not be about to be party, but the agreement's already in the bank. HAROLD KOH: Let me just-- Trump has declared his intent to withdraw from the Paris agreement on November 4, 2020, which is the day after the next presidential election. That's like my saying, I intend to move from my house in four years. Nothing has happened. It's legally meaningless. I went to a group of Europeans who said, the United States is in a state of virtual withdrawal. And I said, the United States is in. And you know, Trump does not own Paris. We do. And I think we should just say, we'll always have Paris. [LAUGHTER] By the way, I mean, tweets are not law. [LAUGHTER] MARTHA MINOW: Whatever they may be. So here's the question that I alerted you to that I want to ask. Idealism, realism, idealism without illusions, speaking from your own voice versus speaking as the United States government. Samantha, you recently said that during college, you realized that you didn't want to go through your life-- and I quote you-- "giving myself alibis for not trying to change my little slice of the world." And your magnificent book, A Problem from Hell, sharply criticized government officials for standing by during the atrocities. And so then there you are, and you can't do everything you want to do. So are you still an idealist? How do you put that together? I know you're writing a book about this. SAMANTHA POWER: Funny you should ask. [LAUGHTER] To me, the hardest policies to be associated with or certainly the hardest events on the ground to witness were those in Syria. You know, it was the largest mass atrocity of the last decade, one of the largest of my lifetime. And as I indicated earlier with this phrase, the Syrianization of the world, the strategic effects of just the rise of ISIS and the displacement, now 67 million people displaced around the world. Half the Syrian population displaced. Then the migration that followed from that. Would there have been Brexit if the Syrian war hadn't degenerated to that extent? Would there be Trump if the fear and the sort of specter of difference and threat weren't available to people because of all the images out of this? There's just a lot. It's one that was very hard to live with. And the hardest part day to day was just having people like Caesar, who is the pseudonym for the gentleman who was a photographer in Syrian jails and took the photographs of tens of thousands of Syrians who'd been tortured and executed in Syrian jails. And who believed when he got out that if the world only knew, if they only saw these images where people literally had serial numbers carved into them and acid poured all over them, and just-- I'm sure some of you at least have seen the photographs. And he came out and he told the story, and people were horrified. And we as an international community, we as the United States, all the countries that comprise the UN didn't manage to move the ball in the manner that helped anybody else in a material way who was in a Syrian prison vulnerable to just those kinds of crimes. So I think the way for me when I-- I mean, A, Syria was a really hard one, because it wasn't one-- and this is probably how complex policy decisions in real time just always feel. But it wasn't one where, while I had ideas for things that we might be doing that we weren't doing, it wasn't like I could come home and just say, you know, Cass, they won't listen to me. I have the idea for what's going to solve this sectarian conflict and going to mitigate, if not solve, you know, mitigate the suffering of millions of people. Like, just the complexity-- it felt kind of almost overdetermined by so many of these demons that have been unleashed on the ground. And you do-- and I knew this from-- I'd interviewed hundreds of people to write A Problem from Hell-- but when you're in the room in real time, as I tried to document even in the book, but the limits of what you know are very salient to you. And the sense of kind of epistemological humility about what you don't know and all that lies out there. So that could sound like an alibi of the kind that you describe, but it was just the context in which I would keep still trying to climb up the hill with ideas for things we might do that might make things a little bit better. And John Kerry was the same way, and I found a lot of solidarity in him. I mean, even till the very last day he was in office as Secretary of State, just the effort he made to try to gin up a peace process, a political process, which is ultimately how this thing has to end. My way of living with Syria, apart from all the other examples I could give you about things we did on other areas, was just if I'd come out of a meeting, and it was clear that the thing I was proposing was going nowhere, and I couldn't get support from my colleagues or the UN Security Council for that matter. If I got the US government or we, the US government, were in what I thought was a good place, but then we were thwarted by Russia, I would come back to my team-- and this is sort of a motto of mine-- and say, OK, so what now? And the motto was, there's always something we can do. Even in Syria, there was always something we could do. So we didn't solve the war, the Syrianization, and the pain of all those people persisted. But I would focus on a single political prisoner who I could-- I couldn't get the Russian ambassador to go along with me on sanctioning the Assad regime for the crimes that they had committed in their prisons. But I could get him to engage his counterpart, his Russian counterpart in Damascus and get that individual through, again, my Russian counterpart at the UN, to go to the Syrian government and try to get this guy out of jail. It's sort of like the story of one individual. These stories get lost. But my team could never-- it would be a terrible state to have the privileges of being in these positions of public service and not every day be thinking, OK. We can't do X. We're not going to solve the whole thing, but what is the little piece of this? So we got a resolution through the Russians. This is going to sound so modest and tame, but it was so important to allow, for the Russians to allow-- to roll the Syrian government, basically, and allow humanitarian assistance to come across the international borders to people who were living in opposition territory. The Syrian government's position was, we're the sovereign. You've got to bring your food to Damascus before you go to any of these breakaway rebel areas. And this was absurd, because it was too dangerous to get to Damascus in some cases. And if it got to Damascus, all the food was going to be taken, and it would never get-- So again, just through wearing down the Russians and using some public shaming around, how can you block humanitarian assistance to these vulnerable people? We were able-- and so now, even though everything else is still terrible in Syria, at least these areas that would otherwise have no UN assistance, none of the big factory-like flow, convoys of food, none of that would be existing but for, again, to try to continue to find that one thing you can do against a backdrop of ultimately not being able to do what you wish you could. MARTHA MINOW: Harold, you've described the legal advisor to the State Department as conscience for the United States government with regard to international law. And I have a suspicion that there were times that you were arguing for particular positions, maybe not on law but on the policy, that didn't become the ultimate positions. And I just wonder, did that ever happen? And how do you deal with not winning? HAROLD KOH: Well, let me ask you, Martha. Did you ever have to defend a tenure decision with which you didn't fully agree? [LAUGHTER] MARTHA MINOW: I actually didn't have that experience. [LAUGHTER] But I absolutely have had to do things. That's what I'm asking. It's the role-- having a role. HAROLD KOH: You're part of a team. MARTHA MINOW: Yeah. HAROLD KOH: I should have said, when I was in college, I was a physics major until my junior year, and then I took a class on government. And I'm sitting in the class, and the guy starts talking about the in and outers. And I didn't know what that was. And so I said, what's that? And he said, oh, oh, scholar ambassadors. And I said, like who? And he said, Henry Kissinger, John Kenneth Galbraith, Patrick Moynihan. They have the best life because they have tenure, but then they can go into the government and go back and forth. So I actually wrote a paper about this, and that sort of started my thinking about it. Now, there are risks of doing that. In the faculty lounge, you can be right. And then if people disagree, you go get another cookie. [LAUGHTER] No. I mean, you could say inconsistent things from week to week, and people don't hold you to it. But in government, you are part of a large group trying to make decisions. And you know, judges say things like, I just see myself as an umpire calling balls and strikes. Of course, everybody has their own strike zone. But anyway. [LAUGHTER] I didn't want to be a judge. I didn't want to be an umpire. I want to play the game. And if you play the game, even if you're a Ted Williams, six times out of 10, you don't get a hit. So the question is, how do you move the ball forward on the things you care about? I had three rules. Rule number one, the airplane rule. If you're in at the takeoff, you can be in at the landing. So I would not defend the decision that I didn't participate in the making of. But if I participated in the making of it and I lost in a fair fight, you know, you defend it, just as you do when you're a dean. Rule number two is you're only as good as your principles. P-L-E-S and P-A-L-S. You're only as good as the people you work for, the principals. So work for people you think have great capacity. Otherwise, you'll find yourself limited by their limitations. And you're only as good as your principles, P-L-E-S, the things that you stand up for. As William Sloane Coffin used to say, "If you stand for nothing, you'll fall for anything." [LAUGHTER] And then the third rule I got from Derek Bok. I was sitting with him at a dinner here. And I said to him, what's your advice about leadership? And he was great. He said, you ever play pinball? [LAUGH] And I said, yeah, I've played a lot of pinball. And he goes, you know, if you don't shake the machine, you're not really playing. [LAUGHTER] And he goes, but if you tilt it, you're not a very good player either. So shake it, but don't tilt it. [LAUGHTER] And so wherever I was, I thought, am I shaking the machine? [LAUGHTER] And how close are we to tilt? You want to be right there, right at that edge. SAMANTHA POWER: Can I share one little, short anecdote? Just what it's like-- so Harold and I were allies pretty much on everything, and it was amazing just to know I'd be in this-- like on landmines. We were trying to get us to ban landmines. And we'd just look, and there'd just be this one smiling, cherubic face. Because I'm chairing these meetings from the White House, and he's my great owl. But early on-- and I can't remember why it was-- but I think it was a meeting on the International Criminal Court that I was chairing. Again, my capacity as the president's Multilateral Affairs and Human Rights Adviser. Harold was representing the State Department at this meeting. There would have been a lot of ICC skeptics. It would have been early, relatively early in 2009, probably not long after you were confirmed. But anyway, apparently I chaired this meeting in a way that was very-- kind of, I just work here. [LAUGHTER] I'm just calling balls and strikes. Like, go ahead, Harold. Oh, that's a great point. Now, what about you, sir? What are the arguments you think for us, having nothing to do with this body, you know, which wants to pursue Americans and do all these terrible things? And so anyway, Harold got very mad at me. Do you remember this at all? So you called me. You didn't come to my office. So you just called. Someone was like, Harold's on. I was like, oh, Harold, like a warm bath. You know, one of my few true soul mates, allies in government. And he just starts laying into me. And he's like, you need to go home and read your book. [LAUGHTER] Read your book! [LAUGHTER] You seem to have forgotten what you wrote! You know? This is a really, really important thing, because it's a little bit like what can happen at law school, what I was describing earlier is that you can-- there are roles that you occupy. And in those roles, it's appropriate to hear all views. But you know, you don't lose sight of what you believe or how you want the orchestra to play the song, basically, and where you want it to land. And so I was like, oh. I don't know what happened to me there for a minute. Sorry. And so then we went back to business together. And he had said, even when he was-- when I was first going into government, he said, you know, occasionally-- and he was just entering for the second time. But in his previous human rights job he said, you know, occasionally in government, I would go home and I would read what I had written so I could remember what I thought. [LAUGHTER] And so there he was-- I thought it was fair that he was chastising me to do the same thing. HAROLD KOH: One important thing is when I first got to the State Department in 1998, I was the head of the Human Rights Bureau. A guy pulled me aside. He said, you know, at the State Department, we hate four things. And I said, what's that? He said, political appointees, human rights people, lawyers, and professors. [LAUGHTER] So I have a message for the younger students here. You know, they're not waiting with baited breath for you to come in and make the theory of your last article the government policy, you know? And so you have to basically work with the people who are there and what they're trying to accomplish. And you know, I keep getting asked about articles I wrote. The fact of the matter is that nobody in the US government cared what my position as a scholar is on the War Powers Resolution. It's, what are the opinions of the Legal Adviser's Office? And where do my views fit into that? Finally, you know, when you work in a field for a long time, you learn things. And at one point somebody said to me, I think what you're saying is inconsistent with something you said in some article you wrote. And I said, well, what do you think matters more? [LAUGHTER] What I put in a footnote when I was coming up for tenure when I was 27, or what I say after a lifetime of thinking about these issues, going to the government twice, dealing with it now, and addressing it in this life-and-death setting? I don't defer to myself as a 27-year-old trying to impress somebody with my footnote. And you know, listen to me now. [LAUGHTER] MARTHA MINOW: That's very good. Well, we're living, as you've already alluded to, at a time after the term of the president under whom you both served. And there's been a lot of changes. The United States has disengaged from UNESCO. They've talked a little bit about the Paris climate deal. Some people say Pax Americana is over, the post-World War II way of dealing with global issues. Certainly, one major change is at least the rhetoric, the rhetoric about what the United States has a role to play in the world. And talk about roles. As dean, I would be leaning over backwards, whatever anyone thinks. This might be great for America, might be bad for America. I'm not dean, so I'm not going to do that. But what do you think about this? What do you predict? What's the consequence of this new moment for us? SAMANTHA POWER: Well, I think for starters, this moment and this protracted period is hastening and will really accelerate the rise and the prominence and the leadership of China in the international system. And as two human rights people here, and you just heard one-- actually, by the standard of the crackdown underway, that's been underway in China now for some time, a relatively good news story of someone who was able to get out. But for China to be asserting itself on the global stage where there is now a vacuum, it will inevitably mean projecting their domestic pathologies into global statecraft. They actually, up to this point, punch a little bit below their weight, in the sense that they are very active in blocking action, like on Rohingya on Burma. Very active in trying to prevent discussion if North Korea is a human rights issue. But we haven't seen the beginnings of this. And Graham Allison, our colleague at the Kennedy School, has a book out that I recommend to people, which looks at the question of whether China and the United States are destined for war. Doesn't think that we are, but thinks there are a set of factors that might mean that every policymaker needs to take this prospect very seriously. But just the stat that leaps out at me, indicative of China's rise-- I'm going to just share it with you, because it's so eye-popping to me, at least was-- is that China produced and used more cement between 2011 and 2013 than the United States did in the entire 20th century. [LAUGH] And that's a bricks and mortar example, but imagine that getting translated into policy leadership when there isn't another vocal kind of pull on the other side. And I saw this even as I was leaving New York. It was the first time in the budget negotiations, because China is now the number two donor to UN peacekeeping, which is like an $8 billion budget. And they'd been a very small donor for so many years, but now it's measured on the basis of basically, your share of the global economy and per capita income and stuff. So now they're number two, right behind us. And so for the very first time, they moved away from the developing countries in the budget negotiations with whom they'd always been affiliated as the G77 plus China. But they didn't want to be with us in the Western countries, so they just put their chair between these two negotiating blocks. And we still thought this could be helpful, because they have a lot of leverage with these countries, because they're a much bigger development donor now than we are, than all of the Western countries are really combined. So we thought, this could be helpful in a clinch. We could maybe get a sensible budget with cutting some of the bloat that needs to be cut. And sure enough they were much more budget-conscious, because they were on the hook in a way that they hadn't been before. But the things that they wanted to cut were the human rights positions from all the peacekeeping missions. So that's one example. And then the second thing I'd say is just other than China's rise in terms of us, I mentioned earlier, I think, that often new presidents take over and we're kind of like goldfish. You know, we think that, I'm a goldfish, and I just get to start over and have new thoughts in a given day and lead in a different way. And I think this has been true of American history, that we don't see that other countries see this continuity in our policies. I think the cost of breaking our word on the Iran deal or on Paris, the cost of daily falsehoods coming from the highest office in the land, the cost of embracing police brutality vocally and even arguably sexual assault, I mean, those are not costs from which we just get to elect somebody else and then say, hey, guys, we're back. You know, we believe in things again, and we believe that in order to keep our people safe, we have to engage the world. And that, you know, in effect, our security and our humanity is linked. Like, we believe that, and we're back. And now we'll go back to, hopefully we won't have a nuclear war in the meantime, and we'll go back to all of the things we've walked away-- it's not going to work that way. Not only because of China's rise, but because as a very senior European official, the national security advisor to a very prominent European head of state said to me recently, you know, the problem with us is we're going to have post-trauma-- us meaning Europe-- we're going to have post-traumatic stress about this period. Because it isn't that Trump is your president. It is that you elected Trump. So now we have these two data points. You elected Barack Obama. And from the standpoint of foreign policy, people have their critiques of Barack Obama that I'm sure are fair. But now you're capable of electing and supporting this. And so what does that mean? How can we rely again on you being able to stick to who you say you are? So that's the word, but maybe Harold will say something happy about the Trump legacy. [LAUGH] The checks and balances. Maybe you should talk about the checks and balances, because you've been Mr. Check and Balance. HAROLD KOH: So for the last nine months, you know, you turn on the TV in the morning. It's Trump this, Trump that. And it reminds of the famous joke by Mel Brooks, the 2,000-year-old man, where they say to him-- he's playing a 2,000-year-old man-- before God, was there anybody else? And the 2,000-year-old man says, yeah, there was a guy named Phil. [LAUGHTER] And they said, what happened? He said, we'd say, oh, Phil. Don't hurt us and don't beat us and don't make our lives miserable. And then one day, lightning came out of the sky and struck Phil dead, and we said, there's something bigger than Phil. [LAUGHTER] Well, you know, there's something bigger than Trump, which is this whole process that we all own. And he may be a major player, but as I said in the panel this morning, you know, he may want to put in a Muslim ban called the travel ban. He announced it on January 27, and the groups that have risen up to litigate against it, it's been in effect for less than 24 hours. You know, he may want a transgender ban. The bureaucracy is resisting. You know, he may want to pull out of Paris. All he's done is say that he will pull out of Paris in the future at a time when he may no longer be president. He might say he wants to decertify the Iran nuclear deal, but he's going to kick it to Congress, and it's not clear that they're going to do anything different. Because actually, they don't have anything better than the Iran deal. And in fact, what could be a worse time to renege on the Iran deal when what you're trying to develop is some sort of nuclear diplomacy with North Korea? So Martin Luther King said, "The arc of history is long, and it bends toward justice." It doesn't bend by itself. We were lucky. We could afford to withdraw from this process and let, you know, Barack Obama and Hillary Clinton and John Kerry and Samantha Power do the right thing in our names. But that time no longer exists. In this room are five people who signed a brief on behalf of national security officials, former national security officials of both parties, who say, look, this travel ban is not based on a process that deserves judicial deference. There was no process. They've actually explained no national security rationale for it. To this day, they have yet to produce a single person from any of these countries who committed a terrorist killing in the United States. And in fact, Trump himself says he would bomb for Syrian children who he will not admit to the country. So I think we have a right to say, what is going on here is not deference to the president and a process we respect. What's going on instead is the question of whether the process we respect is being followed by the person who happens to hold the position of president. And if not, that does not warrant deference from the courts. We don't have a wild split in the circuits about the travel ban. Every single court that's ruled basically has ruled against it over and over and over again. Or take the transgender ban. The Defense Department under Ash Carter, who teaches at the Kennedy School, had made the process to remove the transgender ban for the good of the military to be effectuated on January 2018. And then suddenly we got a tweet saying, transgender individuals will be removed from service. Why? Because it disrupts unit cohesion. Guess what? 18 of our NATO allies have transgender people in their forces. American soldiers serve alongside those transgender individuals and have done so for years. And nobody said that those units are not cohesive. So it's demonstrably false. So today, I think as we speak, we have a clinic at Yale Law School called the Rule of Law Clinic where we're filing a brief on behalf of 50 generals and military officials, including Chuck Hagel, Leon Panetta, Admiral Stavridis, General McChrystal saying, if there's no process, it's an attempt to disguise rank discrimination as based on national security imperative, and the court should not defer to that, because there's no professional judgment being exhibited. So when we sent the brief out, we didn't expect 50 generals to suddenly rush to sign it. But it turns out that people who have worked in this process and respect it don't respect the way that their own work is being undermined and manipulated in the name of discrimination. MARTHA MINOW: I want to ask a question about surprising friendships. Have you made any surprising friendships in the course of your public service? SAMANTHA POWER: I think the friendship that surprises most people that was probably my most important diplomatic friendship was that with the Russian ambassador. So the same individual who was representing a country that was lopping off part of a neighbor, killing children in Syria, and interfering with our election, and committing an assault on our democracy was my friend. [LAUGHTER] Go figure. So why was he my friend? He was my friend because he worked every day to try to wring out of his government whatever positive action there was to be rung out. And a little bit like what Harold-- well, actually, different from what Harold was saying. He would not have met Harold's standard of, if you're in at the takeoff, you're in on the landing, because Putin doesn't operate that way. No one's in on the takeoff except Putin, who then lands the plane. So I think there's a very real question, and I suspect it was one he grappled with, about whether the cost-benefit for him in terms of his own integrity and future made sense for him in all of this. But he stayed loyal to the end. He passed away very suddenly earlier this year. And I was struck. Martha, you and I talked about it at the time. I wrote a piece basically describing my friendship with him, which no one knew about, for obvious reasons. [LAUGHS] It would not have been good for either of us. And I describe the work that he did helping me on Syrian political prisoners. And the peacekeeping missions that exist today that wouldn't have existed if his system would have just been allowed to just reject whatever we were proposing. And I got so much hate mail, you know? Just so much, like, how could you? You're an apologist for this. And this gets to this question of ideals as lived in the real world. I respect the judgment of people who think that it was inappropriate to have a friendship with him. And I could have just had a working relationship. And you know, I could have avoided getting to know his wife, and him my family, and so forth. But he was a compelling person with whom I did compelling work and had dramatic clashes. But what struck me about the response I got to writing about this complex relationship, including describing the loathsome things I thought he was doing, was that in our current moment, protracted moment, there feels like there's no space for this kind of gray zone, you know? Of completely seeing the terribleness of what he's doing and defending surely the complete horrors of his government, and the idea that he would be out there defending. Like, judging that, calling it out, operating with my own government to try to get us to take measures to hold his government accountable. That on the one hand, and yet being able to build something with him that would allow us both, I think, for lack of a better word, to sort of optimize in this moment of almost Cold War-like tension. And just that reaction reminded me of our own domestic political moment. There's no space. I mean, occasionally, Trump does something that's OK, and I make a point, like he helped get these hostages, Caitlan Boyle and her husband, out of Pakistan. And I wrote kudos to the Trump-- just a Twitter. Kudos to the Trump administration for getting this done. And I got this screed of, they did nothing. This was only Pakistan. They couldn't do it. You know, almost like, they are the Taliban, you know? Don't you know. It's like, if you read everything else I've said in response to the things they've done lately, I'm aware of-- [LAUGHTER] --the horror show that is being perpetrated by our government. I get it. But they can still do good things. And recognizing that, and we're going to be in this world for a while, affirming and showing that we're capable of differentiating is a part of what we need more of, it feels like in this moment. But I recognize that's not popular. We're in the binary. Everything feels very binary at present, unfortunately. HAROLD KOH: My most unexpected friend was John Brennan, who was head of the CIA. He was a professional CIA agent. And I didn't even know him. But we agreed most of the time, because he's a gentleman, and he believes in just war. And he's Irish. Now little noticed was that the Irish mafia ran the foreign policy. Brennan, Samantha Power, Tom Donilon, Denis McDonough-- SAMANTHA POWER: Barack Obama. [LAUGHTER] HAROLD KOH: --Jake Sullivan. And I have a kinship with those people, because I'm married to an Irish American, but I'm also Korean. And Korean, as you know, are the Irish of the East. [LAUGHTER] Because both of us having grown up in the shadow of a more boring, larger colonial power-- [LAUGHTER] --developed a sort of puckish irreverence, which is, I think, what made me connect to Samantha. But by the way, if you believe in just war theory, it explains a lot. I was often asked, aren't you a hypocrite? You oppose torture, but you think that drones can be used lawfully? To which my answer is, no. Torture is always illegal everywhere, no matter when it's done. Unless you're a pacifist, and I am not, sometimes you go to war. And in war, there are laws of war. And drones are not per se illegal. If they're used in a certain way, it can be a lawful, lethal act in war. And if it's not used that way, it's illegal. And if you're going to be a lawyer in the government during that period, your job is to define the line between lawful and unlawful killing. And you know, that's not what I signed up for in life. You know, I memorized the names of all my students for four years. I never memorized the name of all senior al-Qaeda leaders. But here's the thing. You want the lawyers there. So when you hear a politician say, let's get the lawyers off the backs of the generals, you say, absolutely not. Don't you dare. That's the difference between whether you're engaging in lawful acts of war or murder. And the idea that lawyers, or lawfare, or these things are over-lawyered, that's ridiculous. That's exactly what we need, especially if we are going to engage in warfare as a necessary part of surviving in a hostile and difficult world. MARTHA MINOW: Well, I'm going to ask as a last question what advice you have for any students who may be in this room. SAMANTHA POWER: I have been doing some speaking to mainly college audiences, not law school audiences lately. And I've been struck on the one hand by a new level of engagement. But on the other hand, already a self-expressed fatigue. You know, we're tired. We've been to all these protests. And kind of not seeing-- I think Harold did a great job ticking off the non-return on the attempts to make a set of changes that people-- many people-- sadly, enough people-- but object to. So there's that as a kind of morale boost for people to be reminded of that. That kind of positive feedback loop is very important. But I think sort of stamina-- you used the word earlier, I think-- patience, asking one's self in these times, OK. I came to law school, and I was going to do this. I was in law school to do this thing. I may still want to do this thing on the other side of law school or in law school. But what's the new thing I'm going to do? And my favorite sign in the many protests that have gone on is that from-- it was a middle-aged guy, kind of heavyset guy at one of the women's protests, one of the women's marches. And he's holding up a sign and it said, "I'm not usually a sign guy, but jeez." [LAUGHTER] So I guess my last words are just, like, what are you not usually, but that when you're saying every day, like, oh, no or jeez, you know, what are you not usually that it's now time to become? And if you don't have a ready answer to that, come back to what I was saying earlier about even if you're living with the equivalent of Syria every day, there's always something you can do. If you can't be of Harold's stature, like, actually leading the preparation of these briefs to block the implementation of this horrific racist and discriminatory ban, if you can't do that-- some of us aren't capable of doing that-- refugees are still trickling into this country, and they're all over this country, coming without speaking English in many cases, and they're resettling in our communities, including right here in Massachusetts. And they're resettling in the least hospitable climate for welcoming refugees since the Second World War. You know, just helping them move in, or making them a home-cooked meal or something. There's just always something. And I think part of the Trump problem for many is that it just feels so big that anything any one person does feels so incommensurate to these structural changes and this unleashing of statements and actions that we never thought-- we thought we were past, like generations past. It can just feel daunting and make people tired. But once one starts doing that small thing, I think that's empowering and invigorating, and sets us up then for what amounts to a long haul of getting things back on track. HAROLD KOH: Well, let me ask the students a question, and then leave them with an image. When I was a second-year student, I agonized I think around now about whether I'd work for a big firm in one city or a big firm in another city. I agonized for months. And then finally I picked, and I told my mother. And she said, oh, that's nice. You know, I was thinking about working for firm A, and I decided to work for firm B. And my mother goes, oh, that's nice. Did they need you the most? [LAUGHTER] I said, what do you mean? She said, you have so much privilege. You have the best education money can buy. That's all we could give you. Shouldn't you be serving the people with the least privilege? The image, though, is one-- yesterday, when we were at the Sanders Theater, you know, all the justices are asked, if you were told you couldn't be a justice, what would you rather be? And they all said, I'd like to be a history professor. I have to tell you, I thought that was pretty disappointing, you know? [LAUGHTER] You know, like, if you couldn't be a law professor, you'd be a history professor. [LAUGHTER] And then one person said, well, maybe I'd be an art history professor. [LAUGHTER] Well, you know what I would be? And Samantha will like it. I want to be the third base coach of the Boston Red Sox. [LAUGHTER] You know, we love the Red Sox, because that's how you become an American. [LAUGHTER] It is. It is. My son said to me, I love Fenway Park, because it's the only place in America with 6 foot 3" blonde guys wearing shirts that say Ortiz and Matsuzaka. [LAUGHTER] So when I was little, I thought I wanted to be Ted Williams. And then I got older, and I thought, well, [INAUDIBLE],, and I thought I should be Theo Epstein. And then I thought, as I get older and older, maybe I should be a relief pitcher like Tim Wakefield. But the other day, I was watching and I thought, the best job is the third base coach. He's on the field. He has the best view. He's part of the team. He goes into the dugout between innings, and he imparts wisdom and he spits and-- [LAUGHTER] And he only does two things during the game. One is sometimes he says, not now. Not yet. Not yet. But sometimes, and most of the time, he says, run! [LAUGHTER] Run like the wind! Run like the wind! You're young. Run like the wind! Go for it! Give it everything you've got! And I don't care what the outcome is. You did it. You took that chance. That's why I love being a third base coach. [LAUGHTER] [APPLAUSE] MARTHA MINOW: Harold Koh, Samantha Power, you live lives of run like the wind, engagement, reflection. You get close. Your brilliance, your conscience. You deal with media criticism, cost away from your families, and I think we all thank you. [APPLAUSE] SAMANTHA POWER: Thanks, everybody. [APPLAUSE]

Channel: Harvard Law School

Views: 6,293

Rating: 4.6883116 out of 5

Keywords: Harvard Law School, HLS, Harvard University, Martha Minow, Harold Koh, Samantha Power

Id: XZ4fK_Ybgfs

Length: 92min 38sec (5558 seconds)

Published: Thu Nov 02 2017