Harold Koh's Transnationalism

National Review Online's Bench Memos Blog | Published on

By Edward Whelan

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In a series of posts on National Review Online's Bench Memos blog that earned prominent attention, EPPC President Ed Whelan exposed the radical transnationalist views of controversial State Department legal adviser nominee Harold Koh.  Immediately below is the outline of the series, which is available in full here.

 

1.  Harold Koh's Transnationalism (overview of series)

2.  What “transnationalism” is

3.  Customary international law

a. What customary international law is

b. The transnationalist game on customary international law

4.  Treaties

a.  The scope of the treaty power

b.  The domestic legal status of treaties

c.  CEDAW as a case study

(1) CEDAW and the CEDAW committee

(2) Koh's remarkable testimony about CEDAW

d.  The treaty game

5.  Constitutional law

            a.  Reinventing the Constitution (Part 1):  Koh's positions

            b.  Reinventing the Constitution (Part 2):  The flaws in Koh's positions

            c.   Reinventing the Constitution (Part 3):  What Koh's positions threaten

            d.  The constitutional game

6.  The role of the State Department legal adviser

Additional Posts

1.  Koh's confirmation hearing
     • Review of Koh Confirmation Hearing Transcript–Part 1 
     • Review of Koh Confirmation Hearing Transcript–Part 2
     • Review of Koh Confirmation Hearing Transcript–Part 3
     • Koh's Written Answers to Senator Lugar's Questions
     • Koh's Written Answers to Senator DeMint's Questions

2.  Koh and the Alien Tort Statute

3.  Koh and National Security

4.  Response to defenses of Koh

Review of Koh Confirmation Hearing Transcript–Part 1 

The transcript (not yet available online, so far as I'm aware) of Harold Koh's confirmation hearing on Tuesday before the Senate Foreign Relations Committee reveals (1) an utter failure on the part of committee Democrats and ranking Republican Richard Lugar to understand or engage Koh's radical transnationalist views, and (2) Koh's deceptive testimony about his views.  I'll address the first matter in this post and the second in my next post.

In his opening statement, committee chairman John Kerry declares that “accusations that [Koh's] views on international or foreign law would undermine the Constitution, which some have suggested, are simply unjustified.”  But Kerry doesn't confront Koh's actual views.  When Koh ="http://bench.nationalreview.com/post/?q=OTY3MTNiZmYxNTcyNzBhMGVkZTljODI5MTVkZGIxY2I=">writes that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law,” the only way for the Supreme Court to do that “coordinating” is to subordinate the real American Constitution to ever-evolving rules of foreign and international law. 

Koh's own writings amply prove the dual threats that his transnationalist approach to constitutional interpretation poses.  First, Koh's approach threatens to erode cherished First American protections for speech and religion that he disdains as a part of America's “distinctive rights culture” that he finds “opprobi[ous].”  Second, Koh's approach invents new constitutional rights–against the death penalty and in favor of same-sex marriage, for example–that would usurp the realm of representative government.

Kerry posits that Koh's statement that he regards the Constitution as “the ultimate controlling law” somehow answers the charge that he would subordinate the Constitution to international and foreign law.  But Koh's seeming assurance is a meaningless dodge, given his real position that the meaning of constitutional provisions can and should be redefined to comport with ever-changing rules of foreign and international law.

Kerry further contends that “[s]ome have actually alleged that [Koh] is against Mother's day.”  If so, that's the first I've heard of it.  A quick and incomplete Google search indicates that some of Koh's defenders have contended that Koh's critics have made this allegation, but they don't link to any actual allegation.  The actual charge that I have leveled against Koh that involves (as one component) Mother's Day is that Koh, in his 2002 testimony to the Senate Foreign Relations Committee, failed even to acknowledge, much less confront, the CEDAW committee's interpretations that undercut his brusque dismissal of supposed “myths and fallacies” about CEDAW–and that he deliberately provided his deceptive testimony.  But rather than confront serious evidence that the nominee before his committee, whom Kerry presents as a paragon of integrity, gave shyster-quality testimony, Kerry tries to dismiss the whole matter with a grotesque distortion of the allegation against Koh.

Kerry evidently doesn't understand how radical Koh's transnationalism is.  Kerry asks Koh whether domestic incorporation of international and foreign law could “happen outside of a treaty that is ratified by the United States Senate,” and evidently expects that Koh will answer no.  Koh instead calls the treaty vehicle only “the most obvious way” and refers also to the transnationalist game on customary international law, but doesn't highlight for Kerry that the transnationalist game on the Constitution is yet another vehicle.  

Senator Lugar's performance is as bad as Kerry's–even worse insofar as one might reasonably expect a Republican to be more interested than a Democrat in exposing Koh's views.  Lugar misframes the entire nomination battle by quoting at length from the cartoonish coverage of Koh's nomination provided by Time's Massimo Calabresi (son of former Yale law school dean Guido Calabresi).  Lugar thanks Koh for his “diligence” in responding to Lugar's written questions, but fails to observe, much less follow up on, any of the troubling aspects of Koh's answers.  And Lugar manages to pose only one question, a softball that asks Koh to “speak again to the problems as you see pragmatically, of the problems of international law” and that mistakenly assumes, contrary to Koh's transnationalist views, that “significant changes in international law” can come only through Senate consent to treaties.

 

Review of Koh Confirmation Hearing Transcript–Part 2 

Now let's examine (in this post and the next) some of Harold Koh's statements at his softball hearing:

 

1.  Koh asserts that “transnational legal process, which is an academic idea, just says what we all know, that we live in an interdependent world that's growing increasingly more interdependent.”  He calls it merely “a description of a world in which we live.”

 

But Koh's transnational legal process is far more than a statement of the obvious point that “we live in an interdependent world.”  It is Koh's strategy for importing international and foreign law to override the traditional processes of American representative government.  As Senator Lugar put it in his written question to Koh (Q10):

 

In a 2004 law article in the Berkeley Journal of International Law addressing this theory you wrote:  “Some have asked me, ‘Is your notion of transnational legal process an academic theory?  Is it an activist strategy?  Or is it a blueprint for policy makers?'  Over time, my answer has become, ‘It is all three.'

 

Consider, for example, Koh's Stanford Law Review article “On American Exceptionalism” in which Koh says that his “preferred solution” to “American exceptionalism”–on First Amendment speech rights (see here and here) and much else–is “triggering transnational legal process.”  And consider Koh's discussion of the “six key agents in the transnational legal process” of the “internalization” of international law into domestic law.  (Koh, “The 1998 Frankel Lecture:  Bringing International Law Home,” 35 Hous. L. Rev. 623, 646-655 (1998).)  Second on Koh's list–after “transnational norm entrepreneurs”–are “governmental norm sponsors” who will “act as allies and sponsors for the norms [that transnational norm entrepreneurs] are promoting”:

 

Once engaged, these governmental norm sponsors work inside bureaucracies and governmental structures to promote the same changes inside organized government that nongovernmental norm entrepreneurs are urging from the outside. Not infrequently, officials within governments or intergovernmental organizations become so committed to using their official positions to pr
omote normative positions that they become far more than passive sponsors but, rather, complementary “governmental norm entrepreneurs” in their own right.

 

As I have discussed, Koh, as State Department legal adviser, would clearly aim to be one of those governmental norm entrepreneurs.

 

2.  Challenged by Senator Isakson about what the transnationalist constitutional game would yield, Koh contends that “[t]here's certainly no campaign to shrink any provision of the Constitution” and that his views on First Amendment free speech protections were addressed to “how do we enter a treaty in which that free speech might be implicated”–with his answer supposedly having been to recommend a reservation to the treaty. 

 

That's certainly not what Koh was doing in his Stanford Law Review article “On American Exceptionalism.”  Far from trying to protect First Amendment rights through a treaty reservation, Koh identified as the first of four “faces” of “American exceptionalism that he lists “in order of ascending opprobrium” America's “distinctive rights culture,” which gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.”  America's “exceptional free speech tradition can cause problems abroad,” and the way for the “Supreme Court [to] moderate these conflicts” is “by applying more consistently the transnationalist approach to judicial interpretation” that Koh advocates–i.e., by redefining First Amendment guarantees to comport with foreign and international rules.  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1483 & n. 14 (2003).)  As law professor Eugene Volokh puts it, Koh sure seems to be advocating the use of transnationalism to “reduce the scope of American constitutional rights.” 

 

Review of Koh Confirmation Hearing Transcript–Part 3  

More on Harold Koh's statements at his softball hearing (numbered serially from my Part 2 post):

3.  Asked about his 2002 op-ed asserting that the Iraq war would violate international law because the United States did not receive “explicit United Nations authorization” for the war, Koh contends that “the only point I made in that article” was that “the consequence of that [lack of explicit UN authorization] was that the intervention into Iraq in 2002 did not have the kind of broad support that we would have preferred.”  In fact, Koh made several other points. 

One point that Koh understandably would want to obscure is his assertion that “such an attack would [not] make the world or America safer” because “If we attack, we could expect [Hussein] to respond with weapons of mass destruction against Israel and against us if he can reach us.”  That's right:  Koh was invoking what was believed to be Saddam Hussein's control of weapons of mass destruction, and was doing so as a reason not to remove Hussein

Among Koh's other points:  “Fifth and finally, I do not believe that unilateral pre-emptive attack is what this country stands for.”  I also do not believe that unilateral pre-emptive attack is what this country “stands for” (as opposed to something that we may under limited circumstances be justified to resort to).  But Koh's phrasing conceals his more radical position (as discussed in Q32 here) that “we move to a per se ban on unilateral anticipatory war making, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the form of prior permission.”   

4.  Asked whether those damaged by the United States government's alleged violation of international law in invading Iraq have a legal remedy they may pursue, Koh denies that the alleged illegality of the invasion would trigger any legal exposure.  But Koh's own positions on customary international law and the Alien Tort Statute readily support an action, based on a customary international law rule against aggressive war, against all American corporations that assisted the war effort for aiding and abetting the commission of war crimes. 

In addition, beyond tort liability for American corporations, Koh's position that the invasion of Iraq violated international law would seem to mean that he believes that President Bush and all members of Congress who authorized the war in Iraq (and who did so without maintaining that additional United Nations authorization for the war was necessary) are vulnerable to prosecution as international war criminals.  But that's probably not a good point for Koh to highlight when he's trying to get confirmed by senators whom he regards as having been complicit in war crimes.

5.  Nearly three decades after Israel's 1981 attack on the Iraqi nuclear installations at Osirak, Koh is unable to answer whether Israel's attack was justified as a preemptive act of self-defense or violated international law.

Koh's Written Answers to Senator Lugar's Questions  

Once I've reviewed the transcript of yesterday's confirmation hearing for State Department legal adviser nominee Harold Koh, I expect to have some comments on Koh's testimony.  For now, I'll address some of the written answers that Koh submitted before the hearing in response to questions submitted by Senator Richard Lugar (the ranking member on the Senate Foreign Relations Committee):

Q1. Koh says that it would be “premature” for him to address the extraterritorial scope of the International Covenant on Civil and Political Rights.  Maybe so.  Yet it would have been good if Koh had acknowledged that he has argued to the Supreme Court (in his amicus brief (p. 4) in Hamdan v. Rumsfeld) that the ICCPR governs the trials of criminal charges against detainees held as enemy combatants, whether or not those trials occur on American soil. 

Q3. Koh says that his “long-held view is that the Executive Branch is bound to comply with the reservations, understandings and declarations that accompany the Senate's advice and consent to ratification of a treaty.”  That stateme
nt makes it seem as though Koh believes that the Senate's ability to attach reservations, understandings and declarations to its consent to a treaty is unlimited.  But in fact Koh has expressed hostility to the notion that the Senate has the legal ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing (i.e., does not have domestic legal effect).  He also has written that conditioning United States ratification of CEDAW on the “extensive package of reservations, understandings, and declarations” that even the Clinton Administration supported “would be politically unwise, legally questionable, and practically unnecessary to protect American national interests.”  (Koh, “Why America Should Ratify the Women's Rights Treaty (CEDAW),” 34 Case W. Res. J. Int'l L. 263, 270-271 (2002) (emphasis added).)  

Q8. Asked about his reliance on foreign law in interpreting the Constitution and the role that he would have in forming the Obama administration's position on the meaning of constitutional provisions, Koh states (in part) that “the U.S. Constitution is the ultimate controlling law in the United States.”  That seeming assurance is a meaningless dodge, as Koh's real position is that the meaning of constitutional provisions should be redefined to comport with ever-changing rules of foreign and international law.

Q21. Asked how the United States government should respond to “efforts of foreign courts to assert criminal jurisdiction over sitting or former U.S. officials for acts undertaken in the course of their official duties,” Koh charts an amazingly feeble course.  He doesn't suggest that it's the proper role of the United States to handle any prosecutions of sitting or former U.S. officials for their official actions, or that the United States should vigorously protest such criminal prosecutions by foreign authorities, or threaten reprisals, or do anything to put a stop to them.  Rather, he says that the role of the United States “should be first to understand the procedural posture of the case, precisely how it arose, the nature of the allegations raised against the former U.S. government officials, the shared aspects, if any, between the foreign prosecution and any other investigations or inquiries that may be pending or forthcoming in the United States, and the nature of any defenses that might be available in such proceedings.”  He would “follow such cases closely” and “work actively with our foreign counterparts through legal and diplomatic channels.”

Q23. Koh maintains that his previous assertion in a law-review article that the President and other U.S. officials “may be sued” under the Alien Tort Statute wasn't meant to express a view that they wouldn't have legal immunity against such suits. 

Q32. Asked about one of his publications, Koh maintains that he “agree[s] with the longstanding U.S. government view that a state may use military force to defend itself if an armed attack occurs, or in the event that such an attack is imminent.”  But what he actually proposed, in the very passage that Senator Lugar quotes, is that “we move to a per se ban on unilateral anticipatory war making, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the form of prior permission.”  Koh called for “a unilateral [sic--the context suggests that Koh means universal] ban on unilateral preemptive attacks”:

 

Those nations who feel compelled to ignore that ban could seek subsequent forgiveness and not prior permission, much as President Harry Truman did when he dropped the atomic bomb on the civilian population of Nagasaki.… If the president feels compelled so to act, and he wants to argue that he was motivated to do so in the name of national survival, he can defend himself in many different legal and political fora. A prosecutor could decline to prosecute him, he could receive a pardon, or his sentence could be commuted. But we should reject the notion that he should be given the freedom and authorization ex ante to undertake such drastic action.   

That is decidedly not the “longstanding U.S. government view.” 

Koh's Written Answers to Senator DeMint's Questions  

A quick look at some of the written answers that State Department legal adviser nominee Harold Koh provided in response to post-hearing questions submitted by Senator Jim DeMint:

Q4.  Koh evades answering DeMint's question whether Koh believes there are “legal limits on the Senate's ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing.”  But Koh has expressed hostility to the notion that the Senate has the legal ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing (i.e., does not have domestic legal effect).  He also has written that conditioning United States ratification of CEDAW on the “extensive package of reservations, understandings, and declarations” that even the Clinton Administration supported “would be politically unwise, legally questionable, and practically unnecessary to protect American national interests.”  (Koh, “Why America Should Ratify the Women's Rights Treaty (CEDAW),” 34 Case W. Res. J. Int'l L. 263, 270-271 (2002) (emphasis added).)

Q5.  Asked whether he stands by his (deceptive) testimony about CEDAW, Koh states that he does and adds the trivial observation that the CEDAW committee does not have “legally binding authority over a State Party.”  That observation does not address how much interpretive weight, if any, is to be accorded CEDAW committee statements, nor does it explain how Koh could briskly dismiss as “myths and fallacies” about CEDAW concerns that were squarely based on CEDAW committee statements that he failed even to acknowledge (nor how he could rely on such CEDAW committee statements in his amicus brief in Lawrence v. Texas).

Q10.  Koh fails to address whether he believes that the U.S. military campaign in Kosovo in 1999 violated domestic law.  (I've been advised that Koh has opined both that a military action of that scale without congressional authorization is unconstitutional and that the 60-day limit under the War Powers Act for use of military force abroad without congressional authorization–a limit that the Kosovo campaign exceeded–is constitutionally valid, but I need to confirm these points.) 

Q14.  Koh musters a tad more vigor than he did in response to Senator Lugar (Q21 here) in asserting that “[p]rosecutions against U.S. officials in foreign tribunals for acts undertaken in their official duties raise a number of issues that are of very se
rious concern to U.S. interests,” and he states that the United States “is in the best position to decide whether to take any action against former U.S. officials” for such acts.  Still very feeble, though.

Q16.  Koh tries to evade the fact that his position that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law” means subordinating the real American Constitution to ever-evolving rules of foreign and international law.  He cites indirect and attenuated ways in which the Supreme Court “can affect rules of foreign and international law,” and he asserts that the Supreme Court “need not change its interpretation of the U.S. Constitution in order to take international law into account.”  But he doesn't deny that “coordinating U.S. domestic constitutional rules with rules of foreign and international law” will often require the Court to change its interpretation of the Constitution, as his own positions on various issues make clear. 

Harold Koh, Serial Violator of International Law  

That's the gist of this interesting post by Eric Posner (on the Volokh Conspiracy) concerning Harold Koh's “champion[ing] of the modern (post-1979) use of the ATS [Alien Tort Statute] to impose tort liability on international lawbreakers” (the topic of this post of mine from yesterday).  As Posner explains:

 

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable–wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals.…

 

Koh has long supported a type of litigation that probably breaches international law and in any event universally offends foreign opinion.

Indeed, three prominent judges on the International Court of Justice–the president of the ICJ, the English barrister Rosalyn Higgins, and the American judge and human-rights law expert Thomas Buergenthal–have criticized the “very broad form of extraterritorial jurisdiction” that American courts exercise in ATS litigation: “While this unilateral exercise of the function of the guardian of international values has been much commented on, it has not attracted the approbation of states generally.”  Democratic Republic of the Congo v. Belgium (Case concerning Arrest Warrant of 11 April 2000) [2002] ICJ Rep 3 at 77 (para 48) (concurring opinion of Judges Higgins, Kooijmans and Buergenthal).  Further, the House of Lords has declared ATS litigation “contrary to customary international law.” Jones v. Saudi Arabia, [2006] UKHL 26 (para 99).  And, as this Solicitor General's brief makes clear, Switzerland has condemned the assertion of ATS jurisdiction over its own nationals with regard to their conduct in a third country as “inconsistent with established principles of international law,” and the United Kingdom and Germany have similarly protested that such assertion “infringes the sovereign rights of States to regulate their citizens and matters within their territory.”

These facts provide further support for the notion (set forth by Justice Scalia in his dissent in Roper v. Simmons) that Koh and other American transnationalists use international law selectively as an ideological weapon:  they invoke it when it advances their own hard-left ideological agenda and ignore it when it doesn't. 

 

Harold Koh, Judge-Made Foreign Policy, and Redistribution of Wealth  

Today's Washington Post carries this op-ed by Duke law professor Curtis A. Bradley and Harvard law professor Jack L.Goldsmith criticizing a recent court ruling that expanded aiding-and-abetting liability under the Alien Tort Statute of 1789 to saddle American corporations that did business with apartheid-era South Africa with massive liability for South Africa's human rights violations during that era.  According to Bradley and Goldsmith, the current South African government opposed the litigation, as did the Bush administration, citing the risk of adverse foreign-policy consequences.  Nonetheless, a federal district court “supplanted its foreign policy views for those of the federal government and refused to respect South Africa's efforts to move its society forward.”  In so doing, the court also exposed these corporations to “crass retroactivity” by subjecting them to legal liability for transactions that were not within the scope of aiding-and-abetting liability at the time they took place.

As Bradley and Goldsmith point out, now that Harold Koh is slated to be State Department legal adviser, it's unlikely that the Obama administration will seek reversal of rulings like this.  Koh, “an intellectual architect and champion of the post-1980 human rights litigation explosion[, …] joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.”  (Koh, presumably, would recuse himself from any involvement as a governmental actor in this particular case.) 

Even beyond basic questions of who properly makes American foreign policy and beyond concerns of fairness, American corporations and their shareholders, customers, and employees–in short, most Americans–ought to recognize their strong interest in not having Koh keep the floodgates open to litigation of this sort.  It's worth noting that among those who have countervailing economic interests are the outside law firms that make a killing representing corporate defendants in Alien Tort Statute actions. 

Harold Koh, the Iraq War, and War-Crimes Liability

State Department legal adviser nominee Harold Koh believes that notwithstanding congressional authorization, the Iraq war “violate[s] international law” because the United States did not receive “explicit United Nations authorization” for the war.

I’d be interested to learn how (apart from crass political considerations) Koh reconciles his position on the Iraq war with his support for President Clinton’s war in Kosovo. The Kosovo war had a much weaker basis in international law than the war in Iraq (which, among other things, had at the very least a strong claim of having implicit United Nations authorizat
ion). And, as a matter of domestic law, the Kosovo war was not authorized by Congress.

For present purposes, I’d like to ponder the implications of Koh’s position that the Iraq war violates international law:

1. Doesn’t it follow that Koh must maintain that President Bush is an international war criminal because he commanded an invasion of Iraq that, in Koh’s view, violated international law?

2. Doesn’t it follow that Koh must maintain that all members of Congress who authorized the war in Iraq and who did so without maintaining that additional United Nations authorization for the war was necessary are international war criminals?

3. Doesn’t it follow that Koh would maintain that all American corporations who assisted the war effort are liable in damages in Alien Tort Statute lawsuits for aiding and abetting the commission of war crimes?

Koh vs. Obama Administration 

The lead story in today's Washington Post reports on internal debate in the Obama administration on whether to use military action against a Somali extremist group that has ties to al-Qaeda and that poses “a potential terrorist threat to U.S. interests.”  This passage in particular caught my eye:

The new administration is still defining its rationale for undertaking sensitive operations in countries where the United States is not at war.

Some in the Defense Department have been frustrated by what they see as a failure to act. Many other national security officials say an ill-considered strike would have negative diplomatic and political consequences far beyond the Horn of Africa.

Just wait to see what happens if Harold Koh is confirmed as State Department legal adviser. Koh has been an ardent opponent of presidential uses of military force without congressional authorization and occupies the far end of the spectrum in his opposition to presidential authority. He's dogged in his views and won't walk away from them as State Department legal adviser. Instead, he'll bully those who disagree with him and claim that they're advocating illegal policies that would make them war criminals.

If DOD officials are frustrated now, things will get much worse with Koh. And if the prudential objections that “other national security officials” invoke against “an ill-considered strike” are genuine, those officials will have equal cause to be exasperated with Koh when he invokes his own legal views to thwart well-considered strikes.   

Koh will present similar problems for the Obama administration on responsible policies on detainees and national-security matters generally. All of this helps explain why (as I'm reliably told) some senior political appointees were worried by Obama's nomination of Koh — and why they'd be relieved by the collapse of his nomination.

Re: What's the Big Deal About Piracy? 

Jonah, I agree with you.  Now that I'm being indoctrinated in the views of transnationalists like Harold Koh, I realize that piracy presents no threat to American sovereignty, because we should all understand “sovereignty” in “the modern sense of that term — a nation's capacity to participate in international affairs.”  Sovereignty “no longer consists in the freedom of states to act independently, in their perceived self-interest” — we sure wouldn't want American government officials acting to promote America's “perceived self-interest” — “but in membership in reasonably good standing in the regimes that make up the substance of international life.” 

And since we're not sending progressive law professors off to United Nations conferences in Somalia, what's the big deal?  And those folks some nativists disparage as “pirates” are really just transnational law entrepreneurs who are helping us absorb into American law a more enlightened understanding of their economic and cultural rights.

(Quotes from Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1480 & n.1 (2003).  The quote in the last sentence of the first paragraph is Abram and Antonia Chayes's definition of “sovereignty,” which Koh endorses.)

No, I don't think that Koh really approves of piracy.  But I'd also bet that he doesn't approve of traditional measures of dealing with pirates.

 

Koh vs. Obama Administration on Military Commissions 

Today's Washington Post reports:  “The Obama administration is preparing to revive the system of military commissions established at Guantanamo Bay, Cuba, under new rules that would offer terrorism suspects greater legal protections, government officials said.” 

But State Department legal adviser nominee Harold Koh has maintained that no set of modifications to the rules governing military commissions can “dispel[] the fatal global perception of unfairness” that he believes they suffer from:  

Even if, through tinkering, the Defense Department's regulations could ensure that military commissions will operate more fairly in fact, they will never be perceived as fair by those skeptical of their political purpose, namely, the very Muslim nations whose continuing support the United States needs to maintain its durable coalition against terrorism.

(Koh, “The Case Against Military Commissions,” 96 Am. J. Int'l L. 337, 342 (2002).)

Is Koh ready and willing to make the case for a revised system of military commissions?  If not, why would President Obama have him serve as the State Department's top lawyer?  [Update:  Andy McCarthy explains that Obama's revisions are trivial.]

 

Koh vs. Obama Administration on Indefinite Detention?  

The Wall Street Journal reports that the Obama administration “is weighing plans to detain some terror suspects on U.S. soil — indefinitely and without trial — as part of a plan to retool military commission trials that were conducted for prisoners held in Guantanamo Bay, Cuba.”

But State Department legal adviser nominee Harold Koh opposes indefinite detention of enemy combatants:  “The U.S. government should either charge the detainees criminally in civilian courts or find other countries who will accept them for criminal trial.”  (Koh, Restoring America's Human Rights Reputation,” 40 Corn. Int'l L. J. 635, 655 (2007).)

I'm not sure at this point whether Koh's opposition rests only on “human rights” policy grounds or also on legal grounds.  Either way, this is yet another matter–see also military commissions and use
of military force abroad
–in Koh's radical transnationalist record that raises the question why President Obama would want Koh to serve as the State Department's top lawyer.

Dahlia Lithwick on Harold Koh and Sharia  

As usual (and as I may explain more fully in a longer post), Slate's Dahlia Lithwick gets a lot of things wrong in her essay lashing out at critics of Harold Koh, President Obama's nominee to be the top lawyer at the State Department.  But there is one important point on which I agree with Lithwick:  Given the current state of the record, Koh's critics (a group to which I belong) should not base their case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts.  They should not do so, first and foremost, because it is far from clear that Koh actually made any such remark.  They should not do so, secondly, because any such remark, even if made, may actually be entirely innocuous and defensible.  (Imagine, say, a contract that has a choice-of-law provision that specifies that the sharia commercial law of an Islamic country shall govern disputes over the contract, no matter where the lawsuit is filed; is it clear that U.S. courts shouldn't look to that law to determine the interest rate, if any, on any amounts past due?)  They should not do so, thirdly, because there is so much else in Koh's record that is both indisputable (as a matter of fact) and highly objectionable.  (See, for starters, my posts here and here and John Fonte's post.)

 

I hasten to add that the New York Post column by Meghan Clyne that is the special target of Lithwick's ire is far more balanced and fair on this matter than Lithwick suggests:  Clyne gives equal play to Koh's spokeswoman's account, which is far from a clear denial. 

 

More on Dahlia Lithwick on Harold Koh  

A follow-up to my post agreeing with Dahlia Lithwick that those of us who are alarmed by State Department nominee Harold Koh should not base our case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts:

 

Let me briefly discuss just a couple of the many things that Lithwick gets wrong in her essay. (I'll leave aside Lithwick's ongoing effort, which Jonathan Adler has aptly remarked on before, to reposition herself from her previous role as a perpetrator of the “vicious slash-and-burn character attack” to her new role as a hypersensitive bemoaner of any criticism of nominees.) 

 

Lithwick contends:

 

The underlying legal charge from the right is that Koh is a “transnationalist” who seeks to subjugate all of America to elite international courts. We've heard these claims from conservative critics before. They amount to just this: The mere acknowledgment that a body of law exists outside the United States is tantamount to claiming that America is enslaved to that law. The recognition that international law even exists somehow transforms the U.S. Supreme Court into a sort of intermediate court of appeals that must answer to the Dreaded Court of Elitist European Preferences.

 

Set aside Lithwick's apparent insinuation that “transnationalist” is an epithet invented by conservatives to stigmatize folks like Koh, when in fact Koh himself, as author of articles like “Transnational Public Law Litigation” and “Why Transnational Law Matters,” has championed the label.  As she often does, Lithwick, rather than accurately presenting and engaging opposing arguments, proceeds with argument by wild distortion.  The italicized passages are an absurd misrepresentation of conservative critiques of Koh.  (See, for example, my post here and John Fonte's post.  And for conservative critiques of transnationalism generally, see the article by John Fonte linked to in his post and John Bolton's recent Commentary essay, “The Coming War on Sovereignty.”)

 

Lithwick also asserts:

 

Harold Koh is not a radical legal figure. He has served with distinction in both Democratic and Republican administrations (under Presidents Clinton and Reagan), and in that capacity he sued both Democratic and Republic [sic] administrations.* He was confirmed unanimously 11 years ago, and yet this time around, he is a threat to American sovereignty.

 

Here Lithwick resorts to insipid makeshift arguments that she herself would not apply to others.  So what that Koh was a junior career lawyer in OLC during the Reagan Administration?  Is that evidence that he is not now a radical legal figure?  Well, then, I guess that Lithwick has never attacked, and would never attack, Samuel Alito as extreme, since Alito served with distinction as a career prosecutor in the Carter Administration.  And how does Koh's confirmation 11 years ago foreclose examination of what we have learned about him, and about the transnationalist threat, in the meantime?  Again, would Lithwick maintain that because, say, Justice Scalia was confirmed unanimously, she couldn't and wouldn't oppose his elevation to Chief Justice?  Ridiculous. 

 

* I have no idea what the second half of this sentence is supposed to mean.  I'll presume an editing glitch.

Calls for Real Debate on Harold Koh  

On Opinio Juris, international law professor Julian Ku, noting my series of posts on Harold Koh
and the responses they've received from Koh's defenders, says that it's not “fair for Koh defenders to dismiss criticism of Koh's substantive legal views” and poses ten excellent questions he'd like to see Koh answer.  Also on Opinio Juris, international law professor Kevin Jon Heller observes that I have “offered well-reasoned criticisms of Koh that deserve proper rebuttal.”  Might Koh's defenders begin engaging my arguments?

Heller's comment, I'll highlight, comes as a postscript to his post faulting me, with good cause, for harsh rhetoric that I used against Koh's defenders.  As I note in a comment on his blog, I agree with him that I resorted to intemperate rhetoric in a recent post, and I had already modified that post to moderate its tone.  I do think that the record will show that I was responding to baseless insults from Koh's defenders–”absurd,” “pretty shameful attacks,” “nativist rants,” “full crazy,” “nativist paranoia,” “wild conspiracy theories,” “nonsensical,” and so on–unsupported, as Heller's postscript would seem to acknowledge, by meaningful argument.  By contrast, the excessive rhetoric that I flung back was accompanied by explanations.  But while these facts may be mitigating, they don't justify my rhetorical excesses, and I will strive to accord to Koh's defenders a greater charity of spirit, whether or not they accord that to me.

Re: Calls for Real Debate on Harold Koh 

In my series on Harold Koh's transnationalism over the preceding two weeks (outline with links available at the bottom of this post), I have published some 11,000 words across fourteen blog posts on Koh's misuse of customary international law, treaties, and constitutional interpretation to advance his transnationalist agenda.  I have also written several other posts related to Koh's nomination, including two posts (here and here) on Koh's championing of the Alien Tort Statute .

Ten days ago, I highlighted the calls by international law professors Julian Ku and Kevin Jon Heller for real debate on Koh.  Since that time, I'm aware of only one blog post (which I addressed here) and some comments on another blog post (which I responded to on that blog's site, as I discussed here) that undertook substantive engagement with my arguments.  In response to one of the comments, I added an elaborating footnote to my post on Koh's Senate testimony about CEDAW.

Meanwhile, on Opinio Juris, international law professor Ken Anderson yesterday stated his “general agreement with Koh's critics including Andy McCarthy, Ed Whelan, and John Bolton about the broad propositions of transnationalism.” 

Is anyone going to defend Koh's transnationalist views against the detailed criticisms that I have offered? 

Newsweek on Harold Koh 

In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh's nomination to be State Department legal adviser.  As regular readers of Bench Memos know, Taylor is one of my favorite journalists–regularly intelligent, insightful, and fair, whether or not I agree with him in every respect.  And there's much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh's views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists' are using their legal theories to advance a political agenda.”  That said, I have a correction and a broader comment.

First, the correction:  Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.”  [Update (4/22):  In an e-mail to me, Taylor has graciously acknowledged that his and Thomas's assertion was erroneous.]  In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore.  That's why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh's testimony “not his best moment” and “sloppy.”  And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee. 

That correction feeds into a broader comment:  I believe that Taylor and Thomas significantly understate how radical and threatening Koh's views are.  They write, for example, that if “taken to their logical extreme,” Koh's views “could erode American democracy and sovereignty.”  But one doesn't have to make logical extrapolations from what Koh has written to discern that threat; it's plain from his very words (as I spell out in my series of blog posts–available in outline form at the bottom of this post).  The only question is whether he could and would implement his views as State Department legal adviser–and (as I explain in that same post), he would have ample opportunities to do so.

Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.”  I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh's views shows that they are far more extreme than anything that President Obama advertised when he ran for office.  I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it's a virtual certainty that he will be) and far more interested simply in exposing how radical his views are.  But the more I explored, the mor
e extreme Koh turned out to be.

In addition, while I'm sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character.  Several folks who have had dealings with Koh–including folks who are not conservatives or Republicans–have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects–testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing. 

 

Another Feeble Defense of Koh 

In a blog post by law professor Julian Ku on Opinio Juris, GW law professor Edward Swaine tries to defend Harold Koh's less-than-forthright testimony on CEDAW before the Senate Foreign Relations Committee, and he and I have a back-and-forth in the comments section.  Alas, Swaine's defense rests entirely on his misunderstanding of the hearing process and on his misrepresentation of Koh's oral testimony.  (Before having the benefit of my response to Swaine, Ku stated that Swaine “raises a really good point” and tentatively opined that “[a]s far as [he] can tell” Koh's testimony raises “no real ethical issue.”)

In an earlier post on Opinio Juris, Ku credits my post on Koh's CEDAW testimony for “land[ing] a sharp and potentially serious blow” to Koh.  Ku, I'll note, refrains from embracing my characterization of Koh's testimony, but he does say that “Koh was plainly in advocacy mode, not scholarship mode,” that (in wry understatement) the “testimony was not Koh's best moment,” and that “Whelan deserves credit for raising questions about it.”  In the comments section to that post, I also respond to another effort to defend Koh.

 

 

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