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Heritage: “Harold Koh is the wrong man for the job”

April 30, 2009

The Wrong Man

April 27th

By Steven Groves
Bernard and Barbara Lomas Fellow, The Heritage Foundation

Ordinarily, a president should have a free hand in selecting a policy team. Winning elections means you set the agenda.

But if a nominee espouses radical views — views that raise serious national security and constitutional questions — then he or she must be challenged during the Senate confirmation process, despite any other qualifications. Harold Koh is such a nominee.

If Koh practices what he preaches, no U.S. military action could be taken against such enemies unless and until the UN Security Council grants permission.

If confirmed as the State Department’s Legal Advisor — the top legal position at the department — Koh will travel around the globe for the next four years representing the United States at treaty negotiations and international legal conferences, and will be involved in drafting U.N. Security Council resolutions.

Because of the crucial national security aspect of the Legal Adviser position, a thorough analysis of Koh’s opinions on the role of international law in U.S. foreign policy is imperative. His views are no secret. As a law professor and as the dean of Yale Law School, Koh has written and opined on a vast array of international legal issues. It’s a sobering body of work.

For example, in October 2002, Koh wrote that U.S. forces should not attack Saddam Hussein’s Iraq “without explicit United Nations authorization” and that without U.N. authorization “such an attack would violate international law.” Never mind that Congress had already authorized the use of force against Iraq.

In a world where Iran’s nuclear program is advancing unabated and North Korean missile launches are creeping ever closer to U.S. coastlines, crucial legal determinations will be made during the next four years regarding the level of threat America faces from its enemies. Do we really want Koh making those calls?

If Koh practices what he preaches, no U.S. military action could be taken against such enemies unless and until the UN Security Council grants permission. Not to receive such permission prior to a military strike would certainly, in Koh’s opinion, violate international law. Such an act would be additional evidence that America is part of an “axis of disobedience” that shuns compliance with international law — an axis that includes the U.S., North Korea and Saddam Hussein’s Iraq, according to a 2004 article Koh wrote.

Allowing the UN final say over U.S. military decisions isn’t the only sphere in which Koh believes the will of the international community takes priority. Indeed, Koh rarely misses an opportunity to champion international law over U.S. law.

For example, in 2003, the government of Mexico sued the United States at the International Court of Justice (ICJ) in The Hague, Netherlands, regarding 51 Mexican nationals who had been convicted of crimes in the U.S. The ICJ ultimately “ordered” the U.S. to provide additional legal proceedings to the Mexican nationals because they had not been informed that a treaty entitled them to assistance from the Mexican consulate. Among the 51 convicted criminals was Jose Ernesto Medellin, the ringleader in a brutal gang rape and murder of two teenage girls in Texas.

So which side did Koh support — the ruling of an international court in Europe or the valid criminal convictions attained by prosecutors and judges in Texas? As expected, he filed legal briefs in Texas and the U.S. Supreme Court in support of Medellin. It was more important, Koh believed, to give assurances to “international allies” such as Mexico and to support “international adjudication.” Apparently those needs outweighed the rights of victims of violent crime in America as well as the need for closure sought by the families of murdered children.

American armed forces are also in Koh’s crosshairs. He has consistently urged the U.S. to join the International Criminal Court (ICC), also located in the Netherlands. If the U.S. were to join, the ICC’s prosecutor could bring war crimes indictments against American soldiers, if, in the ICC’s opinion, America was “unwilling” to do so.

So, where would Koh have stood in 2005 when an ambush of a U.S. Marine convoy in Haditha, Iraq, resulted in tragic civilian deaths — deaths that many in the international community called a war crime? Would he have championed the benefits of “international adjudication” at the ICC or would he have stood with the Marines serving on the front lines?

The Legal Adviser to the State Department must be motivated to protect and defend the rights of American citizens and soldiers from interference from international organizations, and must promote policies that preserve U.S. national security prerogatives and self-governance while defending American sovereignty from encroachment by transnational actors.

Clearly, Koh isn’t the man for that job.

Steven Groves is the Bernard and Barbara Lomas Fellow at The Heritage Foundation.

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