A recent anti-Koh effort by the “Traditional Values Coalition” (see http://www.traditionalvalues.org/modules.php?sid=3598 and http://washingtonindependent.com/38069/conservative-coalition-takes-aim-at-obama-legal-nominee) has generated hundreds of anti-Koh letters to Senators.

Kudos to Traditional Values Coalition for reaching out so effectively and building the pressure to oppose Koh’s dangerous nomination.

Ready?

Today, some of the best conservative legal and national security thinkers/doers will discuss the battle over the Harold Koh nomination. Bloggers can join the call.

Go here for more info and make sure to bookmark the website of the Coalition to Preserve American Sovereignty.

A few things you should know and why you should care….

Updates are being posted as the call occurs from experts Ed Whelan, Andy McCarthy and many others on the call - read it here….

In April, I signed a joint letter to the Senate Foreign Relations Committee, raising concerns about the nomination Yale Law School Dean Harold Koh to be Legal Advisor to the U.S. Department of State. The No Koh website contains a detailed report on Koh, written by Ed Whelan of the Ethics & Public Policy Center. The website also contains videos, a blog, and a FAQ, although these are aimed more at a lay audience than at persons engaged with legal policy.

While I agree with most, although not necessarily all, of the points made on the No Koh website, my own view on Koh is based on reading six of his law review articles: A World Drowning in Guns, 71 Fordham Law Review 2333 (2003); Is International Law Really State Law? 111 Harvard Law Review 1824 (1998); On American Exceptionalism, 55 Stanford Law Review 1479 (2003); The 1998 Frankel Lecture: Bringing International Law Home, 35 Houston Law Review 623 (1998); International Law as Part of Our Law, 98 American Journal of International Law 43 (2004); Why Transnational Law Matters, 24 Penn State International Law Review 745 (2006).

Deah Koh is an excellent writer and an impressive scholar. But his legal vision is for a substantial diminution of the sovereignty of the American people, and as Legal Advisor to the State Department, he would have tremendous power to advance that vision. As Dean Koh has explained, his writings on transnationalism are not merely descriptive; they are also a strategy for activists. Of course Dean Koh has the right to advocate as sees fit. The Constitution, however, requires that major presidential appointees must earn the Advice and Consent of the United States Senate. The Senate’s duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee’s record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.

When: May 21, 2009 12:00 PM EDT / 9:00 AM PDT

Contact to RSVP: nokoh.info@gmail.com

Joining us on the call will be Ed Whelan, President of the Ethics and Public Policy Center, who has compiled a thorough dossier on Mr. Koh; Andrew McCarthy, former federal prosecutor, author of Willful Blindness; Eric Erickson of RedState.com; the inimitable Michelle Malkin; and many others.

We look forward to discussing this important nomination with you. If you can’t join us, feel free to email your questions in advance or as a follow-up.

Sponsored by

The Coalition to Preserve American Sovereignty
The Heritage Foundation
Center for Security Policy
RedState.com
Hugh Hewitt
Michelle Malkin

]]> http://preservesovereignty.wordpress.com/2009/05/20/blogger-conference-call-the-first-big-confirmation-fight-thursday-may-21st/feed/ 0 coalitiontopreserveamericansovereignty http://preservesovereignty.wordpress.com/2009/05/20/gun-owners-of-america-contact-your-legislators-on-harold-koh/ http://preservesovereignty.wordpress.com/2009/05/20/gun-owners-of-america-contact-your-legislators-on-harold-koh/#comments Wed, 20 May 2009 05:23:41 +0000 coalitiontopreserveamericansovereignty http://preservesovereignty.wordpress.com/?p=89 ]]> Gun Owners of America has put up a great site where you can contact your legislators to ask them to stop the Harold Koh nomination -here’s what they say:

It is said that there are two kinds of lawyers: Those who know the law and those who know the judge. And then there is Harold Koh, the man who is likely to be the next legal adviser to the State Department.

Koh most recently served as dean of the Yale Law School and before that as assistant secretary of state for Democracy, Labor and Human Rights in the Clinton administration. He is a prolific author and a legal activist of the left. Earlier this week, his nomination to be Foggy Bottom’s barrister was voted out of the Senate Foreign Relations Committee, 12-5; his pending appointment has received scant attention from the media or the Senators who will decide his fate.

It deserves a closer look.

The State Department legal adviser is unique. The person holding the position helps formulate and implement U.S. foreign policy; advises the Justice Department on cases with international implications; influences U.S. positions on issues considered by international bodies; represents the U.S. at treaty negotiations and international conferences; has input into the drafting of Security Council resolutions and the interpretation of treaties.

Koh’s record deserves more scrutiny because he is not just an attorney who knows the law — he is an activist lawyer who knows what he wants the law to be. From all he has said and written, it is apparent that Koh wants U.S. jurisprudence to be shaped by international law, European courts, foreign governments and international organizations like the United Nations. Koh puts himself in the “transnationalist” camp of legal practitioners, which he describes as those who “believe in and promote the blending of international and domestic law.” He has written that “transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system.”

Though I have never been a supporter of the death penalty, I also believe that American citizens ought to be the ones who decide whether it is appropriate in this country. It certainly is not a matter to be decided by those in other countries. Koh, however, sides with foreigners. In a 2002 essay arguing against the death penalty he wrote, “We do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment.” According to Koh, the only the opinions in “humankind” that matter are those of non-Americans in the enlightened states where the death penalty is no longer considered an appropriate application of justice for those who commit heinous crimes. In the Koh universe, if the Europeans are opposed to it, we should render it unconstitutional.

This kind of thinking is also evident in his opinion of the Second Amendment. “What kind of global gun control regime could we and should we try to build?” Koh asked in an essay entitled A World Drowning in Guns. He urged “a global regulatory” scheme prohibiting the ownership of firearms could be achieved through a “process whereby rules negotiated among governments at a horizontal, intergovernmental level and interpreted through the interaction of transnational actors in these law-declaring fora are brought down vertically into the domestic law of each participating country — ‘brought home’ if you will — and internalized into the domestic statutes, executive practice, and judicial systems of those participating nations.”

In short, this means that U.S. law — constitutional or otherwise — must be amended or revised to comport with “international standards.” Presumably this same concept would apply not only to our Second Amendment, but to U.S. federal and state laws pertaining to abortion, same-sex marriage, pornography, drug use, private property rights or presumably, child molesting. In the Koh legal universe, these issues should be debated in the United Nations’ numerous institutions and commissions. Then, non-governmental organizations from around the globe will opine, a U.N. body will issue a report and the U.S. Congress and state legislatures will be given a deadline within which to pass conforming legislation. The will of the American people will no longer matter if it is contrary to that of the “world community.”

The Koh perspective on national security is equally alarming. In October, 2002 after Congress had already authorized the use of force against Iraq, he wrote in the Hartford Courant: “I believe… that it would be a mistake for our country to attack Iraq without explicit United Nations authorization,” because, “such an attack would violate international law.” Since the U.S. did not seek or obtain U.N. “permission” before liberating Iraq, Koh included the United States, Iraq and North Korea in what he described as an “Axis of Disobedience.”

In another time, this kind of record would disqualify any aspirant for an office requiring confirmation by the U.S. Senate. But these are indeed different times. Perhaps the senators who vote to affirm Koh’s appointment can also waive the requirement that he “solemnly swear to support and defend the Constitution of the United States against all enemies, foreign and domestic and to bear full faith and allegiance to same.”

— Oliver North is a nationally syndicated columnist, the host of “War Stories” on FOX News Channel and the author of “American Heroes.”

What is “transnationalism” generally? Well, let’s start by considering how two academics—one a critic of transnationalism, the other an ardent proponent—have described it.

Our first academic contrasts a “nationalist jurisprudence” with a “transnationalist jurisprudence.” A nationalist jurisprudence “is characterized by commitments to territoriality, extreme deference to national executive power and political institutions, and resistance to comity or international law as meaningful constraints on national prerogatives.” A nationalist jurisprudence “largely refuses to look beyond U.S. national interests when assessing the legality of extraterritorial action,” has “largely rejected international comity as a reason unilaterally to restrain the scope of U.S. regulation,” and “dismiss[es] treaty or customary international law rules as meaningful restraints upon U.S. action.” Proponents of a nationalist jurisprudence view “foreign legal precedents” as “an impermissible imposition on the exercise of American sovereignty.”

“Unlike nationalist jurisprudence, which rejects foreign and international precedents,” continues this first academic, a “transnational jurisprudence assumes America’s political and economic interdependence with other nations operating within the international legal system.” Distinguishing between domestic and international law makes no sense, since “[d]omestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature.” Transnational judges also don’t “distinguish sharply between the relevance of foreign and international law, recognizing that one prominent feature of a globalizing world is the emergence of a transnational law, particularly in the area of human rights, that merges the national and the international.” For transnationalists, “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law, not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system.”

Yes, that first academic is actually the ardent proponent of transnationalism, even though some of his statements might seem designed to persuade you that transnationalism is hooey. In fact, the academic is State Department nominee (and Yale law school dean) Harold Koh himself (in “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 52-54 (2004) (emphasis added) and “The Globalization of Freedom,” 26 Yale L.J. 305 (2001)).

Let’s also consider the account provided by law professor Curtis A. Bradley (now of Duke), a prominent critic of transnationalism. (Bradley’s 1999 article, “Breard, Our Dualist Constitution, and the Internationalist Conception,” 51 Stan. L. Rev. 529, 530-531, uses the terms “monist” (or “internationalist”) and “dualist” for “transnationalist” and “nationalist,” respectively.)

As Bradley puts it, the pure transnationalist model is that “international and domestic law are part of the same legal order, international law [both treaties and customary international law] is automatically incorporated into each nation’s legal system, and international law is supreme over domestic law.” (Bradley acknowledges that most transnationalists in practice don’t entirely embrace—not yet, at least—the pure version of the second and third features of this model.) In determining the domestic status of international law, transnationalism “looks outward to the structure and content of international law.” By contrast, under the nationalist view, “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.”

What is wrong with this picture?  We learned this weekend that a Spanish judge, Baltasar Garzon, is preparing to prosecute six Americans who worked as senior legal and policy advisors to President George W. Bush – including Attorney General Alberto Gonzales and Under Secretary of Defense Douglas Feith.  The alleged crime?  The opinions they provided Mr. Bush supported the use of torture against enemy combatants.

Most Americans would find this assertion of what has come to be called “transnational law” to be troubling on several grounds. Its application is an affront to due process and the rule of law in this country.  It would criminalize internal U.S. policy-making deliberations, with profound implications for U.S. sovereignty.  If allowed to run its course, this prosecution would have a profoundly chilling effect on the willingness of subordinates to provide a president with advice, or perhaps even to serve in government.

One would hope that President Obama would recognize that this use of legal mechanisms as a form of warfare against the United States – increasingly known as “lawfare” – holds serious dangers not just for the country and those who ran it for the past eight years, but for his administration, as well.  That would appear not to be the case, however, in light of his choice of Harold Koh to be the State Department’s top lawyer.

In fact, as dean of Yale’s law school, Mr. Koh has been an unalloyed enthusiast for transnational law.  For example, in a 2006 article in the Penn State Law Review, he extolled the “transnationalist faction” on the Supreme Court and the wisdom shown by four, and sometimes five, of its justices in rejecting the impulses of what he disdainfully calls “the nationalist faction”:

Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law.  The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law.

The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system.  Finally, the transnationalists urge that the power of the executive branch should be constrained by judicial review and the concept of international comity, while the nationalists tend to believe that federal courts should give extraordinarily broad deference to executive power in foreign affairs.

How many Americans are aware that some, let alone an actual majority, of the Supreme Court’s justices believe that this country should be ruled by something other than the Constitution of the United States, laws made pursuant thereto and treaties clearly consistent with it?  Assuredly, few of us know that such an assault on our sovereignty is afoot; in all likelihood, fewer still would support it.

The same would likely apply to Harold Koh’s embrace of myriad other controversial transnationalist initiatives.  He favors U.S. submission to the International Criminal Court, enabling that tribunal to have the right tomorrow to take up the sort of foreign prosecutions of Americans contemplated by Spain’s Judge Garzon today.

Dean Koh goes even further than John Kerry, who argued that American uses of force must meet what the Senator euphemistically called a “global test.”  Koh believes the United States must obtain pre-authorization by the UN Security Council.  In keeping with this view, he condemned the U.S. invasion of Iraq, which lacked such a mandate, as “illegal.”

The State Department Legal Advisor-designate has also actively opposed virtually every instrument the previous administration deemed necessary to wage and win the war against terror-wielding adversaries. Koh insisted that Guantanamo Bay be closed coercive interrogation techniques be halted and trials in civilian U.S. courts be afforded to captured enemy combatants.  To be sure, these positions largely track with those of President Obama, although the latter has left himself some latitude in their implementation.  Koh’s critique of the government’s terrorist surveillance, though, is even more extreme than that of Mr. Obama, who as a Senator voted to allow the program to continue.

Not surprisingly, Mr. Koh seems untroubled by international accords that assault our Constitution-based sovereignty.  These include such onerous and invasive agreements as the Law of the Sea Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child. Another candidate could be the Organization of the Islamic Conference’s effort to circumscribe freedom of expression by criminalizing speech that “offends” Islam.

It is absolutely predictable that the United States will find itself under ever greater assault in the form of lawfare as notions of the supremacy of transnational law take hold among elites, both here (notably, in the Supreme Court) and abroad.  Mr. Obama can spare himself and the country considerable grief when he meets this week in Europe and Turkey with some of the leading practitioners of lawfare by repudiating Judge Garzon’s extraterritorial over-reach, rejecting the application of transnational law more generally and selecting a State Department Legal Advisor who is an avowed “nationalist,” not a committed “transnationalist.”

Frank J. Gaffney, Jr. is President of the Center for Security Policy and a columnist for the Washington Times.