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The questionable Harold Koh: A transnationalist cannot ‘uphold’ the Constitution

April 30, 2009

Center for Security Policy | Apr 27, 2009
By Frank Gaffney, Jr.

Tuesday afternoon, members of the Senate Foreign Relations Committee will have an opportunity to demonstrate why the Framers gave the Senate the constitutional power to confirm presidential appointees.  If they fail to exercise that power vigorously with respect to the nomination of Harold Koh to be the top State Department lawyer, they will not only have been derelict.  They will be accomplices to an assault on our Constitution that will ultimately result in an unprecedented, and likely permanent, derogation of the Senate’s vital role and responsibilities.

After all, Mr. Koh is one of the nation’s most prominent – and aggressive – proponents of a set of hoary notions that, for shorthand, can be described as “universal jurisprudence.”  Reduced to its essence, adherents to Koh’s school of transnationalism believe that the Constitution of the United States and the laws that flow from it must be continuously “improved” in extra-constitutional ways.

To be sure, such transnationalists profess to find support for their desire to morph our statutes and rulings, so as to conform them to the international “norms” and judicial rulings with which they are at odds, by citing the very founders whose handiwork and clear purpose they treat with such contempt.  On the grounds that the Declaration of Independence exhibited a “decent respect to the opinions of mankind,” they contend we are obliged to do so today as well.  This requires, in Koh’s words, that we “internalize” into our domestic legal code and policies whatever dictates should, in the “opinion” of others, govern.

In this way, Mr. Koh and his fellow transnationalists – who evidently include one-time University of Chicago professor of constitutional law Barack Obama – seek to amend our Constitution and statutes.  They would do so through means that afford none of the representative government, checks and balances or judicial review that have been the essential engine behind the hugely successful American experiment.  In this way, they can promulgate laws and judicial rulings that would simply never pass muster with the American people or a majority of their elected representatives.

In light of all this, the following are among the questions that cry out for Senate examination prior to any vote on Mr. Koh’s nomination:

  • How would Harold Koh square the oath of office he must take if confirmed as State Department Legal Advisor to uphold and protect the Constitution with his insistence that international “law” and “norms” must take precedence if there is a conflict between them?
  • Our Constitution recognizes Americans’ inalienable right to freedom of expression.  Does Mr. Koh believe that right should be trumped by what amounts to Shariah blasphemy laws being written into international “norms” at the insistence of the Organization of the Islamic Conference so as to prohibit and criminalize speech that “offends” Islam and its adherents?  Does he favor “hate speech” legislation recently approved by the House Judiciary Committee that would set the stage for such an infringement and associated penalties?
  • Speaking of Shariah, does Harold Koh’s interpretation of the phrase “decent respect to the opinions of mankind” require the United States to “internalize” more generally the brutally repressive, mysogenistic and seditious theo-political-legal program to which authoritative Islam gives that name?  Once he asserts that the Constitution is not necessarily the supreme law of the land, on what basis would the nominee say other legal codes like Shariah can be excluded from use?
  • Does the nominee believe that foreign judges and/or international tribunals should be permitted to prosecute U.S. officials who, in the course of their duties, provide the President and his subordinates with legal or other opinions on policy matters?  Is he willing to be subjected to such inquisitions in the event memoranda he might author as Legal Advisor wind up giving legal grounds for, say, Predator drone attacks on suspected Pakistani terrorist bases or Somali pirate operations that wind up killing innocent civilians?  Or would he find it unimaginable that he would ever authorize such strikes?
  • The State Department has issued green cards for many tens of thousands of Somali “refugees” who have been basically unceremoniously dumped on mostly rural communities around the United States.  The Department has determined that fraudulently obtained “family reunification” visas have gone to as many as eighty percent of those who now constitute: a socio-economic blight on the host communities; serious health risks of tuberculosis and other communicable diseases – especially on the part of those working in chicken processing plants and other food supply-related facilities; and an apparent petri dish for terrorist operatives.  Does the nominee believe the U.S. obligation to take in such refugees must take precedence over the national interest in security?

Based on his past writings and public pronouncements, if Harold Koh is truthful in his answers to these and similar interrogatories, he should be disqualified from serving as the top State Department lawyer.

In the first 100 days, Team Obama has clearly set its sights on changing the United States in myriad ways, many of them quite ominous.  The Senate – and the rest of us – will rue the day if a majority of its members blindly allow the new administration to adopt the anti-constitutional theories espoused by the likes of Harold Koh and allow him to implement them in brazen violation of an oath of office with which they explicitly conflict.

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

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