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HAROLD KOH Printer Friendly Page

Looming Specter of Transnationalism: U.S. Needs a State Department Defender of Its Sovereign Rights
By Frank J. Gaffney, Jr.
March 31, 2009

Obama Supreme Court Candidate Harold Koh—Part 1
By Ed Whelan
September 24, 2008

Obama Supreme Court Candidate Harold Koh—Part 2
By Ed Whelan
September 26, 2008

Obama's Most Perilous Legal Pick
By Meghan Clyne
March 30, 2009

Another Day, Another Scary Nomination
By David Limbaugh
March 31, 2009

Global Governance vs. the Liberal Democratic Nation-State
By John Fonte
June 4, 2008

A Radical at State
By Kathy Shaidle and John Perazzo
April 8, 2009

Who Is Harold Koh?
By Investor's Business Daily
March 31, 2009

 


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  • Professor at Yale Law School
  • Advocates transnationalism, a concept that seeks to incorporate foreign laws into the U.S. legal system
  • Opposes the use of military tribunals in trying suspected terrorists
  • Opposes the use of enhanced interrogation methods on suspected terrorists
  • Seved as Legal Advisor to the U.S. State Department during the first term of President Obama (2009-13)




Born in Boston, Massachusetts on December 8, 1954, Harold Hongju Koh is an attorney of Korean-American heritage. He earned an AB degree (in government) from Harvard College in 1975, a BA from Oxford University in 1977, a JD from Harvard Law School (where he served as developments editor of the
Harvard Law Review) in 1980, and an MA from Oxford in 1996.

After receiving his law degree, Koh clerked for Supreme Court Justice Harry Blackmun (best known as the author of
Roe v. Wade) from October 1981 through September 1982. In 1982-83, he worked as an associate at the Covington & Burling law firm. From 1983-85 he served as an attorney-adviser to the Office of Legal Counsel in the U.S. Department of Justice. And from 1982-85 he was an adjunct assistant professorial lecturer at the George Washington University National Law Center.

Koh became an associate professor at the Yale University Law School in 1985, and a full professor five years later.

In 1992 Koh won the Human Rights Award of the American Immigration Lawyers' Association. In 1992–93, he led a group of Yale law students and human-rights attorneys in (successfully) suing the U.S. government to free a number of Haitian refugees who
qualified for political asylum and were being detained in Guantanamo Bay, Cuba.

From 1998 to 2001, Koh served as Assistant Secretary of State for Democracy, Human Rights, and Labor in the Bill Clinton Administration. His senior assistant during these years was Rosa Brooks.

In the post-9/11 period, Koh consistently maintained that America's anti-terrorism efforts were not only sullying the nation's image abroad, but were also “deeply exacerbat[ing] distinctions between citizens and aliens within American society with respect to political, civil, social, and economic rights, and contribut[ing] to pronounced scapegoating of Muslim, Middle Eastern, and South Asian aliens.” He derided the Patriot Act as legislation that “was created with hardly any deliberation or genuine legislative process” and, consequently, “should really be called the ‘Round-up-the-Usual-Suspects’ Act.” And he spoke out against “indiscriminate racial profiling” by security personnel at airports, urging instead the use of “behavioral profiling” as an alternative. “If you cross [the border] in England or in Canada,” Koh explained, “they [security authorities] ask you, ‘Why are you traveling today? Does your story hold together?’ They ask you to produce documents that show that you are who you say you are, and that what you are doing makes sense given your own stated objectives.”

In 2004, Koh, citing the previous year's U.S. invasion of Iraq as an egregious transgression, classified America together with North Korea as part of an “axis of disobedience”—i.e., nations “whose disobedience with international law has attracted global attention after Sept. 11.”

In 2004, 2005, and 2006, Koh played an active role (as a speaker and/or moderator) at the national conventions of the American Constitution Society.

Koh served as the dean of Yale University Law School from 2004 until 2009, at which time he relinquished that position to accept President Barack Obama's nomination as Legal Advisor to the U.S. State Department.

Koh, who has testified before Congress more than a dozen times, is a prominent advocate of transnationalisma concept that argues in favor of “global governance” as opposed to the constitutional sovereignty of independent nation-states. Some noteworthy figures have offered succinct explanations of transnationalism's principal tenets:

  • Constitutional attorney Phyllis Schlafly writes that transnationalists “wan[t] U.S. courts to 'domesticate' foreign and international lawi.e., integrate it into U.S. domestic law binding on U.S. citizens.”
  • Heritage Foundation scholar Steven Groves explains that Koh, like all transnationalists, “believes in the integration of international legal norms into U.S. domestic law.” Adds Groves: “He [Koh] feels it is all right for the Supreme Court to look to the opinions of mankind and foreign courts on reaching their decisions on constitutional issues, rather than just U.S. common law and our legal tradition.”
  • Bestselling author David Limbaugh writes: “Transnationalists clearly believe in an ever-changing, living Constitution and reject originalism.... They are obviously globalists, not overly concerned with American's national sovereignty. They see the international community, in the words of Koh, as a 'community of reason' and believe that American judges, in interpreting our Constitution, can resort to this 'community of reason' (foreign laws) to choose between two 'plausible' legal positions.”
  • As Ed Whelan wrote in National Review Online, “in the hands of a living constitutionalist like Koh, foreign and international legal materials will virtually always be available to a transnational judge to help him reach the result he wants to reach.”

Transnationalism holds that the world’s most challenging problemswar, terrorism, “climate change,” hunger, financial and social inequalities, diseases, human rights violations, racism, sexism, and xenophobiaare too complex and deep-rooted for any single nation-state to address effectively on its own. The solution, says Koh, would be for all members of the international community to recognize a set of supranational laws and institutions whose authority overrides that of any particular government. Koh believes that such laws should “be internalized into the domestic law of even resistant nation-states.”

In 2008
Koh explained, in some detail, how transnationalism could affect the judicial branch of government in particular:

“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.”

Specifically, Koh thinks it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” when: (a) “American legal rules seem to parallel those of other nations”; (b) “foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances”; or (c) “a U.S. constitutional concept, by its own terms, implicitly refers to a community standard.”

According to journalist Meghan Clyne, Koh believes that even aspects of Islamic law (sharia) can be incorporated within the American legal and judicial system. Writes Clyne: “A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that 'in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States.'”

On some issues, Koh believes not merely that foreign law can dovetail with American law, but that it actually should trump American law. For example:

  • Regarding the death penalty, Koh says: “The evidence strongly suggests that 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.”
  • Koh once submitted an amicus brief to the Connecticut Supreme Court arguing that foreign precedents required the U.S. to recognize a constitutional right to same-sex marriage.

Center for Security Policy president Frank Gaffney Jr. observes that Koh and other transnationalists “favo[r] U.S. submission to the International Criminal Court” (ICC). Indeed, in March 2007 Koh lamented that under the Bush administration “we have shifted from diplomacy backed by force to force backed by diplomacy, seeking to build democracy from the top down rather than from the bottom up.” And he chastised the U.S. for having “unwisely disengaged from various institutions that promote fundamental human rights, chief among them the International Criminal Court and the newly established [United Nations] Human Rights Council.”

By logical extension, Koh in the post-Bush era supported the efforts of Spanish judge Baltasar Garzon—a legal advisor to the ICC—to prosecute former Bush advisors for allegedly permitting “torture” at the Guantanamo Bay detention center.

“Repairing America's human rights reputation is one of the most serious problems we as Americans face today,” said Koh in June 2008. “… In the last six years, we have gone from being viewed as the major supporter of the international human rights system to its major target. Our obsessive focus on the War on Terror has taken an extraordinary toll upon our global human rights policy.”

“After September 11,” Koh added, “we were viewed with universal sympathy as victims of a brutal attack. But we have responded with a series of unnecessary, self-inflicted wounds, which have gravely diminished America's standing as the world's human rights leader.” He cited such examples as: “the horror of Abu Ghraib”; “our disastrous policy on Guantanamo”; “our tolerance of torture and cruel treatment for detainees”; “warrantless government wiretapping”; “our attack on the U.N. and its human rights bodies”; “the denial of habeas corpus for suspected terrorist detainees”; and “our counterproductive decision to create military commissions.”

Koh strongly opposed the Bush administration's contention that foreign terrorists who had been captured should be tried in military tribunals rather than civilian courts. “The strongest argument against military commissions is not legal, but political,” Koh explained. “Military commissions create the impression of kangaroo courts, not legitimate accountability mechanisms.… To truly win a global war against terrorism, the U.S. must not only apply, but also be universally seen to be applying, credible justice. Credible justice for international crimes demands tribunals that are fair and impartial both in fact and in appearance. By their very nature, military tribunals fail this test.”

Koh opposes the use of any form of coercive interrogation against America's enemies. “[I]n just a few short years,” he said in June 2008, “we seem to have gone from what was a zero-tolerance policy toward torture, to what now seems to be a zero-accountability policy…. And what impact does this have on our ability to help to solve the acute problems around the world, especially in the Middle East?... More countries in the region simply do not listen to us any more, and openly make moves that go against our stated policies and strategy.”

According to Koh, “[W]e need to stop pushing for double standards in human rights. If we believe that human rights are universal, we must respect them, even for suspected terrorists.... And as a matter of universal principle, we must give all detainees basic humane treatment, however heinous they may be.” Condemning the use of enhanced interrogation procedures on suspected terrorists, Koh went so far as to refer to President Bush as America's “torturer in chief.”

In a piece he wrote for the
Washington Monthly in early 2008, Koh, noting that “there is no constitutional authority that licenses the president to authorize the torture and abuse of prisoners,” said he was “sickened by the Justice Department's August 2002 'torture opinion,' which concluded that U.S. officials can order the torture of suspected terrorists with impunity.” That opinion, Koh averred, “narrowly defined torture as '[p]hysical pain ... equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death'”a definition that “would exonerate torture techniques used by Saddam Hussein's security services, including electric shocks administered to the genitals and burning with blowtorches.”

Moreover,
said Koh, the Justice Department's 2002 opinion “undermined the basic human rights principles set forth at Nuremberg”; “twisted the U.S. ratification of an international treaty against torture and cruel, inhuman, or degrading treatment”; and “licensed the executive branch to commit future Abu Ghraibs by degrading and dehumanizing detainees in U.S. custody, regardless of whether they hold any information of value in the war against terror.” Koh also impugned the Bush administration for arguing that “past acts of waterboarding were legal, and that lawyers who object to the use of waterboarding are engaged in unpatriotic 'lawfare.'”

In September 2008, Koh advised that: “[A]s soon as the new President takes office, he should issue executive orders: (1) ordering the relevant agencies to begin formally closing the prison camp at Guantanamo by a date certain; (2) directing compliance by all U.S. officials with the Geneva Conventions and the Convention Against Torture …; (3) unequivocally banning the use of torture and cruel, inhuman or degrading treatment (including waterboarding) by any person employed by or under contract to the United States government anywhere in the world …”

Shortly after taking office in January 2009, the newly elected president, Barack Obama, did in fact issue executive orders on each of those three matters.

In March 2010 Koh outlined, for the first time, why he believed that the Obama Administration was justified (under international law) in carrying out targeted killings of terrorists via armed, unmanned aerial vehicles commonly known as “drones.” He explained that because the United States was in “an armed conflict with al Qaeda, the Taliban, and the associated forces,” it had a lawful right to use force “consistent with its inherent right to self-defense.”

In January 2013, after serving nearly four years in the State Department, Koh returned to Yale Law School as the Sterling Professor of International Law.

Koh has authored or co-authored several books, including 
The National Security Constitution: Sharing Power after the Iran-Contra Affair (1990); Transnational Legal Problems (1994); Deliberative Democracy and Human Rights (1999); and Transnational Litigation in United States Courts (2008).

 

 

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