Event Recap: Or Emet Lecture “Will America’s President be a National Security Threat?” by Professor Harold Hongju Koh

Summary by Dinithi Jayasuriya

On October 10th, 2024, Professor Harold Hongju Koh joined the Nathanson Centre to present the Or Emet lecture, “Will America’s President be a National Security Threat?”. This lecture is based on his forthcoming book, The National Security Constitution in the Twenty-First Century. This book focuses on the overlooked American constitutional crisis, in which the executive branch of government has monopolized national security power and foreign policy response.

The event began with a few words by Dean Trevor Farrow in which he introduced the sterling professor of international law at Yale Law School. Dean Farrow touched on Professor Koh’s accomplishments, including having worked for four US Presidents, clerking at the Supreme Court of the United States, being a widely published author, having received honourary doctorates at numerous universities, and having lectured around the world.

Professor Koh told three stories: a personal story about how his book came to be written, a historical story about how America became a state where the president has become a national security threat, and an ethical story about how lawyers contributed to this problem and must thereby help to fix it.

The first part of the lecture followed the first nine chapters of Professor Koh’s book which investigate how 21st century threats provide institutional incentives for presidents to monopolize foreign policy response, for Congress to acquiesce, and for courts to rubber-stamp these decisions. Professor Koh examined how some administrations have seized unilateral power proactively (Bush and Trump administrations), while others have done so reactively (Obama and Biden administrations). He also explained how increased polarization, politicization, legislative breakdown, and more have prevented Congress from responding quickly to crises, leading to a breakdown of public confidence in this branch of government. Further, he pointed to how courts have relied on doctrines of justiciability procedure or immunity to defer rulings, allowing executive decisions to stand. Professor Koh found that former President Donald Trump’s term revealed the magnitude of this imbalance in national security power.

As part of the ethical story presented in this lecture, he discussed how in trying to protect the public from national security threats, lawyers collectively accreted powers to an institutional president who may now be our greatest national security threat.

The second part of the lecture elaborated upon chapters nine to eleven of the book which focused on strategies of institutional reform wherein the goal is to maintain a strong chief executive within a system of checks and balances that keeps the president constitutionally accountable to the electorate. Professor Koh discussed executive reforms (such as internal checks and balances), Congressional reforms (such as equalization of expertise and required participation in international agreements), as well as judicial reforms (such as more realistic doctrines), to achieve this goal. By their nature, Americans are borrowers, Professor Koh noted, and he called on Americans to be “Americans first”, which involves rejecting the a historical ideology that opposes borrowing from international law.

“According to Justice Blackman, life is long, and you learn things”, Professor Koh quoted as he ended the lecture by reviewing specific reforms and objections. He discussed reforms in areas such as war powers, treaty-making and breaking, emergency economic powers (such as sanctions), intelligence oversight, information control, and electoral security. Finally, he stated his reason for writing this book: because if students end up fighting in a war they never wanted, they do not ask the question “how did we get here and why did no one in academia do anything about this?”. This book is Professor Koh’s attempt to affect change regarding the growing structural dysfunction in America, by asking Americans to want to change and reconceptualize how governmental institutions will operate in the 21st century, alas they be mired with the national security constitution and ensuing threats.

The lecture was followed by a question and answer period during which time Professor Koh answered questions relating to the use of dark money in the US political system, the role of educators in bringing about the change (which he professes is necessary to reform the American constitutional crisis), the need for accountability when dealing with AI during wartime, the importance of diplomacy to a lawful world order, and more.

Recording