On Day 94, Senate confirms Koh

Laura Rozen of Foreign Policy's blog reports that the U.S. Senate just confirmed Yale Law School Dean Harold Koh as the State Department's Legal Adviser in a roll call vote of 62 to 35.

By IntLawGrrls' count, the vote came on the 94th day since Koh (right) was tapped to become State's top international lawyer. Not a moment too soon.

Heartfelt congratulations!

Koh Cloture Passes

I am delighted to report (from Foreign Policy's blog, passed along to me by our colleague Catherine Powell) that the cloture vote in the U.S. Senate on the nomination of Harold Hongju Koh to be the State Department's Legal Adviser has passed. The posting states:

'Cloture passed on a 65-31 vote,' a Congressional source relays at 11:30am. 'There was applause in the Senate gallery after the vote was announced. Republicans are threatening to exercise their right to use all 30 hours of floor debate before permitting a final vote, so Koh may not be formally confirmed until tomorrow.'

Until that final vote we IntLawGrrls, through our timer above, will keep on counting.

Why We All Should Care about Harold Koh's Confirmation

As Diane Amann and Chris Borgen have blogged, the cloture vote on Harold Koh's nomination to be Legal Advisor at the Department of State is scheduled for tomorrow. Although many of us have blogged about his qualifications for months, I want to reiterate in these final moments before the vote his tremendous qualifications and why we all should care about whether he is confirmed.
It is hard to imagine a career that could better prepare one for this job than the one that Harold Koh has had thus far. After receiving his education at Harvard and Oxford, he served as a law clerk at both the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court. He then practiced law at the leading law firm Covington and Burling and worked at the Office of Legal Counsel at the Justice Department before becoming a professor at Yale Law School. He was previously unanimously confirmed as an Assistant Secretary of State, and has most recently served as Dean of Yale Law School. He is a leading expert on private and public international law, foreign affairs, and national security, with his published work including eight books and over 150 articles. He has argued before the U.S. Supreme Court and testified before Congress on over twenty occasions. His many honors include multiple honorary doctorates, medals, and awards, including the 2005 Louis B. Sohn Award from the International Law Section of the American Bar Association and the 2003 Wolfgang Friedmann Award for lifetime achievements in international law from Columbia Law School.
The reason we should care about his confirmation, however, goes beyond the fact that someone with his qualifications and record should be confirmed. Even brief glance at the week's news, with major developments in both Iran and Pakistan, shows how important it is for the United States to have its State Department working at top capacity. Someone like Harold Koh, with his wealth of expertise, could help us handle these situations in the best way possible. In the months that his nomination has been held up, our country has not had the benefit of his advice. Unless he is confirmed tomorrow, we can look forward to more months without the State Department having a legal advisor. These delays don't just hurt the Democratic Party and the Obama administration. They hurt our country. They make us less ready to take on difficult international challenges and make us look petty.
It is time to rise above partisanship and confirm Harold Koh. I urge anyone who has time today to call your Senators and encourage them to put the good of the country before political gamesmanship. For more details on what you can do, visit this bipartisan Facebook site supporting Harold Koh's nomination.

NEWS FLASH: Koh to full Senate tomorrow

About 18 hours after IntLawGrrls put up the running tab of how much time's lapsed since Harold Koh was tapped to be the State Department's Legal Adviser, Senate Majority Leader Harry Reid filed for cloture and set a full Senate vote. It's slated for tomorrow, Wednesday, June 24. But the fight is far from over:

All sides expect a contentious, tip-and-tuck vote, and Democrats are prepared for a debate that could last several days if outspoken opponents of the nomination such as Sen. Jim DeMint (R-S.C.) decide to drag out the process.

We at IntLawGrrls have detailed Koh's immense qualifications here. Yet robocalls against Koh are said already to be in full swing. Time for real humans to call Senators (contact info: here; here) and urge a "Yes on Koh" vote. 60 are needed for success.

On the Legal Adviser of the State Department

With the full Senate vote on the nomination of Harold Hongju Koh (below right) to come at some as-yet-unspecified date -- last week, by a 12-5 vote, Koh won Foreign Relations Committee approval -- it seems a good time to reflect on the position for which he's been nominated.
Reflection is much aided by The Role of the Legal Adviser of the Department of State, prepared by the 29 men and 5 women who composed a joint committee of the American Society of International Law and the American Branch of the International Law Association. Aiding the committee was an advisory group comprising 8 men and 1 woman. ASIL's made the timely decision to place the report online at its website; originally it appeared in a 1991 edition of the American Journal of International Law.
The report provokes much thought, and not just for its recommendations on how to strengthen the Office of the Legal Adviser:
► Worth pondering is the examination of the Legal Adviser's role -- as one who "operates within the framework of two separate legal systems," domestic and international, as one whose advice to client "may significantly affect the content and integrity of international rules and institutions," and as one who, because decisions typically are not subjected to judicial review, encounters "only relatively weak external checks."
► Of particular importance is its acknowledgment of the difficulties of assuring that international law is supported, not just in the State Department, but throughout all agencies of the U.S. government. (It's an observation that would seem prescient post-9/11 were it not for the report's reminder that formation of the joint committee had been motivated by concern -- in 1988 -- "that in recent years the United States has taken a number of actions that have been widely questioned on legal grounds both within the United States and by foreign governments in international bodies.")
► Also timeless is the report's conclusion:

... [T]he United States and other nations making up the global commmunity are together facing urgent and complex challenges -- problems of nuclear proliferation, poverty and hunger, environmental degradation, resource depletion, ethnic and religious conflict, and rapidly shifting patterns of global political and economic power. Yet at the same time we stand on the threshold of extraordinary opportunities -- an end to the Cold War, new possibilities for cooperation among the great powers, the resurgence of democratic values, growing international recognition of human rights, and the vast promise of rapidly-developing technology. ...
The Legal Advisor of the Department of State, as well as other U.S. government attorneys involved in international legal issues, will continue to carry heavy responsibilities for safeguarding and furthering our national interest in international law. ...

Thoughts on Koh’s Confirmation Hearing: The Value of Thoughtful Discourse

I had the tremendous pleasure of attending Dean Harold Hongju Koh’s confirmation hearing yesterday. Beth Van Schaack’s post did an excellent job of highlighting the major issues discussed. I want to build on her exposition by focusing on the tone of the discussion as a model for discussing international and transnational issues.
The room was full with a diverse mix of people throughout the hearing, at times nearly overflowing. I felt a focused energy from the crowd, which mirrored that of the committee members and Dean Koh.
What impressed me most about the hearing was the quality of the discourse. Although several Senators referenced the baseless attacks on Dean Koh in the blogosphere and some media outlets (debunked in prior IntLawGrrls posts), both Democrats and Republicans made it clear from the start of the hearing that they planned to focus on substance and that they respected his distinguished record of public and academic service. With the exception of Senator Bob Corker (R-Tenn.) pressing Dean Koh on why he read one of his answers (to which Dean Koh ably responded that he wanted to give the best answer possible), the hearing focused on the role of the State Department Legal Adviser and major issues in foreign relations law.
Dean’s Koh’s answers were thoughtful and lucid. He articulated clearly his understanding of the differing roles of public officials and academics, as well as those of the Legal Adviser and judges, while at the same time elucidating the arguments that he has made in his voluminous scholarship and public addresses over the years. The discussion ranged from the relationship among branches of government, to the role of foreign and international law in policy and judicial decisonmaking, to the Second Amendment right to bear arms. There were clear political differences in the room — often acknowledged — but those variations in viewpoint were expressed through respectful disagreement.
I hope that the tone of broader public discourse can become more like what I witnessed yesterday. Reasonable people often disagree about crucial legal and policy questions. As the members of the committee and Dean Koh amply demonstrated, this country is best served by vetting our potential public officials based in the substance of their record and views.

In his own words…

After suffering in virtual silence a scurrilous smear campaign, which characterized him as a sharia-loving, sovereignty-sacrificing sell-out of U.S. interests, Harold Koh has been heard. [Yale Law School has compiled the blog posts, articles, and letters in support of Dean Koh here.] His confirmation hearing, which was chaired by Senator John Kerry (right) with Senator Richard Lugar (left) as the ranking Republican, just concluded before the Senate Foreign Relations committee (Kerry's and Lugar's statements are here). The hearing was no cakewalk, but Dean Koh's confirmation seems assured.

Throughout, Dean Koh presented a compelling defense of his “transnational” approach to international relations and his vision of the United States’ place in the world in the next administration. (His answers to Senator Lugar’s written questions were entered into the formal record; an annotation is available here. Ron Slye's discussion of Koh's theory transnationalism is available at Foreign Policy.) In his oral testimony, several key themes emerged that will no doubt guide Dean Koh’s approach to the Legal Advisor in the promising event that he is confirmed:

¶ The U.S. is indelibly and unavoidably connected to the rest of the international community by a web of security, trade, diplomatic, commercial, historic, artistic, and familial relationships.

¶ The nations of the world, including our own, should respect and adhere to the international obligations they have taken on. In his words,

“this is not only the right thing to do, it is the smart thing to do.”

¶ We limit our ability to lead internationally and to demand compliance by other states—including rogue states such as North Korea—when we are perceived as disobeying or disrespecting international law. Our hard power is augmented by the soft power we wield. Our soft power is only as strong as our moral legitimacy.
¶ It is best to work through—rather than in opposition to—international organizations and institutions. We are not powerless to act unilaterally, but there are limits to how effective we can be if we do so.
¶ U.S. sovereign interests and national security are enhanced—rather than inevitably threatened—by our active engagement in international affairs and our participation in international law regimes addressed to transnational problems. Our sovereign power and influence are magnified when we work with allies and international institutions. Such partnerships

“protect our sovereignty and make us safer.”

¶ The U.S. should partner with allies to address common security, environmental, criminal, public health, and economic threats, such as Somali piracy, climate change, swine flu, and the global economic meltdown. We should work to convince nations with which we have more complicated relationships to join these coalitions.
¶ Our foreign affairs power is also enhanced, and the U.S. will make better international and domestic policy decisions, when the executive and legislative branches work in partnership and when members of the minority political party have a voice in designing this policy as envisioned by our constitutional system. The Constitution’s

“checks and balances do not stop at the water’s edge.”

¶ International law—as expressed in our treaty obligations and customary international law—has historically and traditionally been an integral part of the U.S. legal system, subject to principles of constitutional supremacy.
¶ Foreign law and foreign court decisions, while in no way binding on the U.S. or U.S. courts, may have something of value to say about how to resolve legal and procedural problems that are common to the community of nations. We limit ourselves when we categorically ignore or reject them.
¶ International law is a tool that can be used to advance U.S. interests in

• achieving world peace and security,


• establishing the rule of law worldwide,


• greasing the global economy, and


• improving the quality of life for the world’s populace,

thus

• opening up foreign markets to our goods,


• enhancing and disseminating the human and civil rights that are at the foundation of our constitutional framework, and


• ensuring that all the world’s people have a stake in a just, productive, and secure planet.
  

One quote summed up his testimony:

“International Law Is Not The Problem, It Is The Solution.”

‘Nuff said.

Koh hearing today

A hearing on confirmation of Harold Hongju Koh to be Legal Adviser to the Department of State is set for today.

The hearing before the Committee on Foreign Relations of the U.S. Senate will begin at 2:15 p.m. Eastern time at 419 Dirksen Senate Building, Washington, D.C. Try http://foreign.senate.gov/ for webcast. (Although C-SPAN appeared ready to broadcast the hearings as recently as 12:02 today, it's apparently decided instead to devote coverage to swine flu -- about which see above.)

Many of us have posted on President Barack Obama's nomination of Koh (right), our intlaw colleague, Dean of Yale Law School, and former Assistant Secretary of State for Human Rights. No doubt more posts to come as his confirmation proceeds.

In Defense of Dean Koh and Transnationalism

Last night marked the beginning of Passover, my favorite Jewish holiday because of its celebration of human rights. I use a non-traditional haggadah which includes, among other things, quotes from Martin Luther King, Jr. I am not a big fan of the punishments suffered by the Egyptians in the narrative, but like the continuous invocation of everyone’s right to be free. As I ruminate on these themes, I also have been reflecting on how troubled I am by the unfair attacks on Dean Harold Hongju Koh.
There are few people in this world who have fought harder for human rights and dignity than Harold Koh, and I have been extremely upset to see a life of good work mischaracterized. Even before I came to know him personally as a law student in 1995, I remember walking through Yale Law School and being inspired by his work on behalf of Haitian refugees. He is a deeply ethical person who has taught me and so many others a great deal about how to effectively advocate for human rights victims, and how to work collaboratively with a wide range of people. His collaborative spirit has been evident through his effective work in Washington under both Democratic and Republic leadership, as well as in his successful deanship at Yale Law School.
My focus here, however, is not just to say how much I respect and admire Harold Koh or to reiterate the responses of so many others (such as on IntlLawGrrls, Opinio Juris, Balkinization, and Above the Law (including that of conservative Yale Law School Students)) to the smears. Rather, I would like to articulate why his theory of transnational legal process is not at all radical, but a sensible approach to dealing with the globalization that affects every aspect of the practice of law. (See too Diane's post on a similar point.)
In his 1996 Nebraska Law Review article entitled Transnational Legal Process, Harold Koh summarizes the core elements of the theory:

Transnational legal process has four distinctive features. First, it is nontraditional: it breaks down two traditional dichotomies that have historically dominated the study of international law: between domestic and international, public and private. Second, it is nonstatist: the actors in this process are not just, or even primarily, nation-states, but include nonstate actors as well. Third, transnational legal process is dynamic, not static. Transnational law transforms, mutates, and percolates up and down, from the public to the private, from the domestic to the international level and back down again. Fourth and finally, it is normative. From this process of interaction, new rules of law emerge, which are interpreted, internalized, and enforced, thus beginning the process all over again. Thus, the concept embraces not just the descriptive workings of a process, but the normativity of that process. It focuses not simply upon how international interaction among transnational actors shapes law, but also on how law shapes and guides future interactions: in short, how law influences why nations obey.

This description makes clear that transnational legal process does not describe a process by which “Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government,” as Ed Whelan has suggested in his attacks. Rather, the theory describes the way in which international legal norms emerge and why nations obey them. Koh astutely recognizes that in our globalizing world, many different actors influence and are influenced by international law beyond the formal ways in which our legal system incorporates it.
Nothing in Koh’s theory attempts to change either the formal recognition of international law in the U.S. legal system or the way in which it is constituted. The U.S. Supreme Court, an institution at the core of our domestic legal system, has long recognized that:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

This famous Supreme Court case from 1900 (Paquete Habana) makes clear that our courts have been charged with the difficult process of consulting many different types of international legal sources to establish the norms to include as part of the customary international law that binds the United States.
Moreover, customary international law has long been used by both Republican and Democratic administrations to allow the United States to adhere to international legal norms in the absence of a binding treaty. For example, the United States has signed but not ratified the Vienna Convention on the Law of Treaties and the 1982 Convention on the Law of the Sea, but relies on the provisions of both of these fundamental treaties in conducting its international relations. Our democratically elected representatives need to rely upon both treaties and customary international law to make basic decisions about how we relate to other nations.
Finally, I would like to offer a more standard definition of transnational law as a mix of public international law, private international law, and comparative law. At Washington and Lee University School of Law, transnational law will be a required first-year course starting next year. This decision, unanimously endorsed by a faculty that includes a wide range of political views, reflected a recognition, as stated by our Associate Dean:

'However 'global' in scope the practice of law may be today, it seems very likely to be even more so – and for more lawyers – in the decades ahead. Law schools must acknowledge this reality and introduce students early on to the effects of globalization on the formulation, content, and practice of law and regulation in the modern world.'

This country would be lucky to have a distinguished lawyer and academic like Dean Koh as the State Department’s Legal Adviser. And as U.S. lawyers increasingly face the ways in which globalization brings transnational elements into every aspect of our legal practice (one of my first law students just emailed me, for example, about her work as in-house counsel involving an understanding of Chinese law because her company works with China), it is critical that we respond constructively.

Koh Nomination: Law Profs Sign-on Letter

Here's a quick addition to recent IntLawGrrls posts raising concerns about misguided and cynical attacks on international law and on Yale Law Dean Harold Hongju Koh's nomination to be the next U.S. Department of State Legal Adviser.

Associate Professor Ronald Slye, Director of International and Comparative Law Programs at Seattle University School of Law is circulating a letter of support to which law professors can sign on in their individual capacities.

More said in support of intlaw & Dean Koh

International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.

-- IntLawGrrls guest/alumna Mary Ellen O'Connell, in a super Balkinization guest essay that takes on the current crop of intlaw critics. Indeed, it's hard to pluck just 1 quote from her eloquent post: its range includes discussion of international law as a national-sovereignty-strengthener to Presidential respect for international law dating to the days it was still called the law of nations. Mary Ellen concludes her essay in the same vein as this excellent Opinio Juris post by our colleague Laura A. Dickinson. They have joined many others, including IntLawGrrls Beth Van Schaack (here), Jaya Ramji-Nogales (here), and yours truly (here), in concluding, as Mary Ellen's post puts it:

This is America’s tradition: leadership in international law. It is also the way forward.
But returning to this tradition may not be a simple matter given our declining expertise. President Obama has asked one of the leading experts on international law in the United States to take on the top international law job: Dean Harold Koh [right] will give the President accurate advice on what international law requires and the advantages it offers our country and the world.

Fact v. Fallacy in the Confirmation Process

We’re thick into the Obama confirmation season and some of the commentary has moved from the surreal to the preposterous, with Fox News leading the charge (followed closely by the right-wing blogosphere). The current Obama nomination target seems to be Harold Hongju Koh, the Dean of the Yale Law School (disclosure: my alma mater), who has been nominated to serve as Legal Advisor to the U.S. State Department. Harold Koh previously served with distinction as Assistant Secretary of State for Democracy, Human Rights, & Labor under President Clinton.
In addition to the complaint that a top appointment to the State Department--the United States’ interface with the world--might be a “transnationalist”, i.e. someone who thinks international law matters (the absurdity of this critique has been discussed here [IntLawGrrls] and here [Concurring Opinions] and here [Opinio Juris]), there are several manufactured nomination “controversies” that might be of particular interest to IntLawGrrls:

1. that Koh believes sharia law should apply within U.S. courts;
2. that he believes we should not let a treaty dictate whether we can execute juveniles convicted of crimes;
3. that he once called President Bush the "torturer-in-chief"; and
4. my personal favorite: that we should abolish Mother’s Day.

I decided to try to track down the sources of these bizarre claims.

The alleged sharia law comment is elusive. Apparently, someone recalled Koh indicating in a public talk that sharia law might apply within U.S. courts. Others who attended that talk have no memory of the comment, recalling only that Koh spoke of how different legal systems, including sharia, share common legal concepts and principles. Hardly a controversial observation.


If anyone still have doubts about his position on sharia, s/he should take a look at an account of an exchange between then Professor Koh and Sayed Rahmatullah Hashmi (right), once the envoy to the Taliban when it ruled Afghanistan, and implemented its version of sharia law, who had been admitted to Yale University as a non-degree student. Prof. Koh participated in a debate entitled "The Taliban: Pros and Cons" arranged by the University. His role was to present the "con" side at the request of Prof. Gustav Ranis, then at the Yale Center for International and Area Studies. Prof. Koh publicly challenged several policies of the Taliban that marginalized and harmed women, such as the inability of women to receive medical care or to walk freely within society. Rahmatullah retorted that his wife and daughter can do those things, implying that Prof. Koh was "misguided" about Taliban policies. Rahmatullah, of course, failed to see the hypocrisy in his comments: his wife and daughter—women of obvious privilege—could enjoy such normalcies while the majority of Afghan women would risk being stoned for doing so.

The juvenile death penalty allegation comes from an article by Meghan Clyne in the New York Post, which claims that Koh believes that the Convention on the Rights of the Child (CRC) (a treaty ratified by almost all the states of the world except the United States and Somalia) should dictate the age at which individuals can be executed. It is true that the CRC at Article 37(a) requires that states parties ensure that:

No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

Clyne apparently missed that the issue has already been decided—by the U.S. Supreme Court. In Roper v. Simmons (2005), the Court held that the Eighth and Fourteenth Amendments of the U.S. Constitution forbid the execution of offenders who were under the age of 18 when their crimes were committed. In so ruling, the Court found a national consensus against the practice in light of

• the rejection of the juvenile death penalty in the majority of U.S. states (and its rare use even where it remained on the books) and
• the consistent trend toward its abolition.

In addition, the Court invoked “the evolving standards of decency that mark the progress of a maturing society” to determine that such punishments were so disproportionate as to be cruel and unusual. Justice Kennedy writing for the majority noted:

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. … The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.

The third claim about the “torturer-in-chief” comment seems to come from a misreading (or failure to read) an article by Koh in the Indiana Law Journal in which Koh addressed the question of whether, as a legal matter, the Office of the President could constitutionally order torture. His answer was “no”:

Competing schools of constitutional interpretation all accept that the Constitution does not authorize the President to be Torturer-in-Chief. . . . [W]hen the commander in chief becomes torturer in chief, his orders have crossed the line from legal to illegal conduct. ... The President cannot, on his own constitutional authority, authorize violations of jus cogens [non-derogable] norms. ... And even in the gravest national circumstances, the Constitution does not preauthorize the President, his subordinates, or anyone else, to torture someone in U.S. custody using either a rationale of self-defense or a defense of necessity.

This position has been echoed by many others in the beltway and academia, including President Bush himself, who said as such in a 2006 interview with Bob Schieffer (CBS News):

SCHIEFFER: … [T]he question I have, Mr. President, is: Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?

PRESIDENT BUSH: That's a--that's a great question. You know, one of the--yeah, I don't think a president can tort--get--can order torture, for example. I don't think a president can order the assassination of a leader of another country with which we're not at war. Yes, there are clear red lines …

Finally, Mother’s Day. Koh — among many others — has advocated that the United States consider joining the Convention on the Elimination of Discrimination Against Women (CEDAW) —a treaty that most of the world, save the United States and a handful of Middle Eastern and African states, has ratified. Koh was invited to discuss this issue before the Senate Foreign Relations Committee and also put forth his position in the Case Western Law Review (2002). A footnote from this article seems to be the source of the bizarre claim.

Koh, in debunking several misconceptions about CEDAW, wrote at note 51 that:

One such preposterous claim, for example, is that U.S. ratification of the CEDAW would somehow require the United States to abolish Mother’s Day. This claim twists a statement in the CEDAW Committee’s report on Belarus, which spoke negatively about a Belarusian holiday that discouraged women from working in the marketplace, by celebrating and encouraging only those mothers who work in the home. Rather than denigrating motherhood, the CEDAW’s central aim is to support motherhood, by promoting women’s freedom to make choices on an equal basis with men. Nothing in that goal conflicts with the American tradition of celebrating both Mother’s Day and Father’s Day every year, as expressions of this country’s commitment to full gender equality, consistent with the nondiscrimination goals of the CEDAW.

As someone who regularly enjoys breakfast in bed on Mother's Day, I say "here, here."

I have little doubt that those involved in the confirmation process will be able to separate out fact from fallacy and confirm Harold Koh as Legal Advisor to the State Department.

As the Acting Deputy Spokesperson for the State Department stated on the record to Fox:

Dean Koh is universally respected for his legal scholarship, and previously served as an Assistant Secretary of State - and was praised for his work by Republicans and Democrats alike. President Obama and Secretary Clinton strongly believe he's the right person for the job.

Koh has also received kudos from former Bush Administration Solicitor General Ted Olson. More on the Harold Koh nomination and the over-zealous right-wing attack on Koh is available here.

Shocked, shocked

Casablanca's Captain Renault (below) would have put it this way*:

I'm shocked, shocked to find that an expert in transnational law might advise the State Department!

That in a nutshell is how 3 National Review Online bloggers attacked Harold Hongu Koh the day after his nomination to become State's Legal Adviser.
Koh, as we posted yesterday, is the Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School. His list of other achievements includes service as the Assistant Secretary of State for Democracy, Human Rights and Labor, as a member of the Secretary of State's Advisory Committee on Public International Law, and as an Attorney-Adviser in the Office of Legal Counsel at the Department of Justice.
Yet these 3 bloggers seem to see Dean Koh not as an accomplished and respected legal expert. He is, rather, a "transnationalist." And they mean that in a bad way.
One wrote:

Koh is a leading proponent of transnationalism, which would subordinate American national interests to perceived global interests. In his new post, Koh would be well positioned to turn his academic theories into reality—threatening severe damage to American sovereignty and subjecting American citizens to rule by a transnational elite of left-wing lawyers appointed to various international bodies.

In an apparent effort to signal a like-minded groundswell, that post then pointed the reader to posts by 2 others -- without mentioning that all 3 appear on the same NRO site.
One post stated that the Constitution by its own terms, and not a treaty, is the supreme law of the land. Given that this is a given for any international lawyer operating within the framework of U.S. law, the effort to use the principle as a trump card against transnationalism confounds the reader. So too the suggestion that a state's sovereignty is "sapped" simply because the state engages in consensual cooperation with other sovereign states.
As for these bloggers' "T" word (not "torture," which Koh has condemned in no uncertain terms, but rather "transnationalism"):
It is no novel idea, but rather a concept that traces to lectures published a half-century ago by Dr. Philip C. Jessup, himself an American diplomat, scholar, and judge. Jessup's 1956 insight was about reality, not theory. He observed that the categories of private and public law were blurring, and that law increasingly was crossing borders. "Transnational" law was worth study for the simple reason that it trained attorneys to spot these developments and thus to adapt their practice, to make choices of law. Koh's work -- including his co-authorship of a casebook containing judgments that illustrated these developments -- built upon this recognition of the world as it is.
In essence these 3 bloggers thus claim that expertise in the real world of law disqualifies someone from advising our government about the law.
Now that is shocking.




* Forgive the transnational cultural reference to the utterance of a French officer played by an English-born naturalized American in an American-made movie set in Morocco during a global war in which America won a leading role.

IntLawDean Koh tapped to lead "L"

President Barack Obama has nominated our colleague Harold Hongju Koh (right) to be the next Legal Adviser at the U.S. State Department.

If approved by the Senate, Koh would succeed John B. Bellinger III, who for the last several years has held the top post at "L," as insiders call State's legal department.

A White House press release issued yesterday noted Koh's many achievements, highlights of which we now detail:

► "Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School' -- indeed, he is 1 of the IntLawDeans whom we've noted in past posts.

► "Assistant Secretary of State for Democracy, Human Rights and Labor" (1998-2001), plus prior service "on the Secretary of State's Advisory Committee on Public International Law."

► Former law clerk to Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the District of Columbia Circuit and to Supreme Court Justice Harry Blackmun.

► Former Attorney-Adviser, Office of Legal Counsel, Department of Justice.

The list goes on, yet omits important qualifications:

Koh, whose devotion to rights and law is made evident in Storming the Court (2005), a book about litigation that led to the Supreme Court's 1st, and pre-9/11, Guantánamo decision in Sale v. Haitian Centers Council (1993), has been an inspiring colleague and mentor, role model and friend to many of us in the intlaw community.

Heartfelt congratulations!