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November 2012

Anytime between five minutes and 24 hours after I host one of our Legally Speaking programs, I am usually struck, if not tormented, by the questions I should have asked-but didn't. Take the interview I did two years ago with one of the country's most famous law professors, Alan Dershowitz. Early on in that interview he spoke to me of his personal heroes who, over time, had let him down. "I tell my students: 'Don't have heroes,' " he confided. "All my heroes have had clay feet. I've never had a perfect hero." I followed up with a question about his childhood. But by the next day, I realized that what I should have said was: "OK, suppose my hero is Alan Dershowitz. How would you talk me out of that?"

If I could redo my interview with Israel's former chief justice Aharon Barak, I would certainly ask him a lot more questions about the legal opinions he wrote that so infuriated ultra-Orthodox Jews that he required more security than any other Israeli official at the time. And when I think back on my conversation with Texas death row defense attorney David Dow-which was as good an interview as I've ever done-I still kick myself for not asking whether he ever had a client who while still under the age of 18 was sentenced to die. (In Texas, juveniles remained eligible for the death penalty until 2005, when the U.S. Supreme Court finally ruled such executions to be unconstitutional.)

Oddly enough, though, after interviewing Harold Koh last August, the questions I could or should have asked didn't bother me nearly as much. Instead, I fretted over whether I had come across a little too strong. Yes, I wanted to be tough with him. But tough is not the same as argumentative, and I didn't want to go that far.

Koh is one of the world's leading experts on international law and a former dean of Yale Law School. After 9/11, he was also an outspoken critic of many of the Bush administration's war on terror policies. But as the Obama administration's top State Department lawyer, Koh himself has been the object of some sharp criticism, especially when positions he has taken as a public official seem at odds with his past pronouncements as an academic.

During our discussion, I asked a lot of questions about the legality of using unmanned drones in places far removed from established battlefields. (This is largely the subject of this month's Legally Speaking excerpt, "Dilemmas of State"). I also asked about our military operations in Libya. (In testimony before the Senate Committee on Foreign Relations last year, Koh had argued that these actions required no formal congressional approval because they did not satisfy the legal definition of hostilities, as used in the War Powers Act of 1973.)

Of course, as with all of our Legally Speaking programs, you can watch this one on our website, www.callawyer.com, and earn MCLE credit while doing so.

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