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Tell your senators to oppose the nomination of Harold Koh as Legal Adviser to the Department of State.

North: Alarm Bells Ringing Over Harold Koh

May 20, 2009

Oliver North writes in the Fox News Forum on May 15, 2009:

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 Read more…


Harold Koh claims to be a “Transnationalist”

April 30, 2009

National Review Bench Memos | Apr 6, 2009
By Ed Whelan

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, Read more…

Lawfare and Obama’s transnationalist

April 30, 2009

Center for Security Policy | Mar 30, 2009
By Frank Gaffney, Jr.

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. Read more…

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. Read more…

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.

Conservatives Organize with letter to Kerry

April 21, 2009

The Washington Independent reports that “Conservative Coalition Takes Aim at Obama Legal Nominee:Yale’s Koh Drawing Fire on the Right for “Transnational” Legal Views”:

A coalition of conservative activists is beginning to form around opposition to Harold Koh, President Obama’s nominee to become the legal advisor for the Department of State. In Koh, opponents of “transnational” legal theory have found a test case to prove that international law is a political loser–and a way to preemptively discredit a possible candidate for the Supreme Court.

“This is the culmination of years of arguments about international law superseding our own Constitution,” explained John Fonte, a senior fellow at the conservative Hudson Institute who is lobbying conservative jurists and lawyers to sign a letter opposing the Koh nomination. “This had been an academic argument, then an obscure argument, but it’s surfacing now because there’s real scrutiny being paid to Harold Koh’s views.” Other conservatives who talked about Koh on Wednesday wanted to take the chance to “create a paper trail” of Koh criticism, to knock him down the list of possible Supreme Court appointees.

Koh, the dean of Yale Law School since 2004 and a former assistant secretary of state for democracy, human rights and labor under President Bill Clinton, was announced as the nominee for the State Department job on March 23. His nomination didn’t come as much of a surprise to conservatives, as Koh, long considered one of the most powerful legal minds on the left, had been floated as a possible Obama Supreme Court nominee as long ago as September 2008. At the time, Center for Ethics and Public Policy President Ed Whelan wrote a series of posts about Koh’s legal theories for National Review Online, digesting Koh’s views for conservative readers. Among Koh’s sins were appealing to “decent respect to the opinions of humankind” in opposing the death penalty, declaring “lesbian and transgender rights” a closely-held legal position, and citing “international and foreign court decisions” in an amicus brief arguing for the overturn of Texas’s sodomy law.

“What judicial transnationalism is really all about,” wrote Whelan, “is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.”

Since Koh became a candidate for the State Department job, Whelan has kept up a new drumbeat of criticism–”yeoman work,” said Fonte–and helped build a record of Koh’s most controversial stances, turning the low-visibility job into the subject of heated arguments on talk radio and Fox News. This week Fonte began distributing a letter from the Coalition to Preserve American Sovereignty, an ad hoc group started in 2007 to oppose the obscure Law of the Sea Treaty. That original mission was kicked off by Frank Gaffney, now the head of the Center for Security Policy, who is not behind this current campaign but said on Glenn Beck’s Fox News show last week that Koh’s transnationalism meant “getting the U.S. Government to abide by laws that the Congress wouldn’t pass because the American people wouldn’t accept them.”

The CPAS letter, addressed to Senate Foreign Relations Committee Chairman Sen. John Kerry (D-Mass.) and ranking member Sen. Richard Lugar (R-Ind.) warns that the legal advisor gets a “worldwide platform” and cites some of Koh’s “representative legal opinions”–that the Iraq War “violate[d] international law” and put America in an “axis of disobedience,” that decisions made by the International Criminal Court matter in America, that the United States should ratify the Convention on the Rights of the Child.

“Due to the international nature of the position,” reads the letter, “the Legal Advisor must be relied upon to protect and defend the rights of American citizens and the interests of American institutions from the increasing (and to us, unwelcome) influence of international organizations, and must promote policies that preserve U.S. national security prerogatives, self-governance, and constitutional principles while defending American values from encroachment by transnational actors. Since many of Mr. Koh’s closely held opinions fall far from that standard and are contrary to those principles, we respectfully urge you not to support him for this critical position.”

The purpose of the letter is to put as many prominent conservatives and foreign policy experts on record as possible opposing Koh in a campaign that will kick off when confirmation hearings begin, some time after Congress returns from recess in late April. If Koh’s record is exposed, and the media covers it, Koh’s opponents believe the public will round against him. “When John Kerry was running for president and said that the US decision to use its armed forces had to pass a ‘global test,’ we saw how popular that was,” said Steven Groves, a fellow in international legal issues at the Heritage Foundation. “Glenn Beck has really been hammering Koh.”

As an example of how Koh’s views make him a lousy fit for the job. Groves points to the prosecution of eight marines for a firefight in Haditha, Iraq. Twenty-four Iraqis died, and the marines were put on trial, but all but one have now been cleared. If the United States was part of the International Criminal Court, Groves argues, then the marines could have been prosecuted again in the Hague. “That is not black helicopter, conspiracy stuff,” Groves explained. “That’s a completely possible scenario.”

The push against Koh bares some resemblance to the successful campaign against Lani Guinier, Bill Clinton’s first nominee for assistant attorney general for civil rights who withdrew her name after being accused of supporting racial segregation to increase the political clout of minorities. But conservatives see a more obvious parallel to Koh in John Bolton, the former permanent representative to the United Nations who was denied a full vote in the Senate after a full-court press against his critical views of the institution, and of international law.

“The argument that you give a pass to people who serve as the pleasure of the president, that’s pretty much gone,” said Fonte. “Bolton was not confirmed because they didn’t like his view of international law.”

Bolton himself was one of the first conservative foreign policy figures to speak out against Koh. In a March 31 appearance on Glenn Beck’s Fox News show, Bolton lumped Koh in with “those people, many in Europe, some in the United States, who say, above our Constitution, there are international norms, international customary law that trump the Constitution.
When Harold Koh appears for his confirmation hearing, somebody ought to ask him whether he thinks international law ever trumps the Constitution.

One problem for Koh’s opponents comes from one of the first arguments used against him at the end of March, in a New York Post column by Washington writer, former White House speechwriter, and former National Review writer Meghan Clyne. In her reported article, Clyne claimed that Koh had given a 2007 speech in which he supported the use of Shariah law in American courts. Her source was one of the speech’s attendees, and when other attendees disputed this, it became a way for Koh allies to discredit the campaign against him.

“That’s a red herring,” said Fonte. “I’m not interesting in the Shariah thing. I’m sure he’s not for Shariah law, okay?”

Koh’s opponents hope that a fresh, concerted effort to expose his views, if debuted at the right time, will create problems for his confirmation and turn his transnational legal views into a defining issue that rules him out of other appointments. Curt Levey, the executive director of the Committee for Justice, said that he’d receieved the CPAS letter but not yet signed it because “executive branch nominees deserve more leeway than judicial nominees.” But Levey agreed with the content of the anti-Koh push. “On international law trumping American law, he’s as far out as you get.”

The New Yorker: Koh Issues are “Politically Radioactive”

April 20, 2009

The Fight Over Harold Koh

It looks like Harold Koh, President Obama’s nominee for legal adviser at the State Department, may turn out to be the first real confirmation fight in the new Administration. The controversy has been mentioned in a handful of newspapers, but there’s plenty of Internet fire on the anti-Koh, and pro-Koh, side.

The heart of the attack on Koh, who is now the dean of Yale Law School, is that he believes in “transnationalism,” which purportedly is the notion that American courts should honor and apply the laws of other nations in our courts. This dispute first drew broad notice when Justice Anthony Kennedy cited foreign and international law in two high-profile liberal decisions—Lawrence v. Texas, which, in 2003, established that gay people could not be criminally prosecuted for having consensual sex, and Roper v. Simmons, from 2004, which outlawed the execution of juvenile offenders in the United States.

Kennedy’s reliance on non-American sources generated a great deal of controversy, which I wrote about in this piece about him in 2005. In my interview with him, and in the opinions themselves, Kennedy made a point of saying that he did not feel in any way legally bound by what foreign courts had ruled, but he thought there was much that could be learned from how other countries handled similar issues to those facing our courts. Even that much reliance on foreign sources alarmed critics, Read more…