Bloomberg reports that Yale University yesterday named Robert C. Post — an expert in constitutional law who’s been teaching at Yale since 2003 — as the law school’s new dean. He’s expected to start in July.

As Dave reported yesterday, nearly four months after President Obama nominated Koh, who faced some stiff Republican opposition, Sen. Harry Reid (D-Nev.) filed cloture and moved his nomination to the floor for a vote.

Yoo, of course, is the former Deputy Attorney General in the Office of Legal Counsel and primary author of the so-called “torture memos” – memos that defined torture so narrowly as to approve a broad range of interrogation techniques, at least one of which — waterboarding, or simulated drowning — had been deemed torture repeatedly by the United States in the past.

Padilla claims he was subjected to a range of harsh and arguably illegal interrogation techniques, such as sleep deprivation, exposure to extreme hot and cold temperatures in his prison cell, threats to torture and kill him, stress positions, and much more, during his more than three years held in isolation without charge at a U.S. military brig. (Padilla was eventually transferred to civilian custody and tried in federal court on criminal conspiracy charges. He was sentenced to 17 years in prison.) Represented by a Yale Law School clinic, Padilla and his mother are now suing Yoo, among others, for his treatment by U.S. officials. (A parallel case is pending in the South Carolina against former Attorney General John Ashcroft and Donald Rumsfeld.)

Yoo, represented by the U.S. government because he was sued for his official acts (although whether the Justice Department ought to be representing him is questionable), argued that he is immune from suit because, among other things, it wasn’t clear at the time that the abusing Padilla was unlawful, and because in any event Padilla can’t connect the abusive conditions of his detention to Yoo’s actions writing memos that authorized brutal treatment. Yoo also argued that the court should not review the adequacy of his legal memos, because that’s the role of the executive branch or Congress.

The court rejected that argument, noting that it’s still the role of the courts to judge whether the government met constitutional standards in its treatment of detainees.  The court also denied Yoo’s argument that he is entitle to immunity from suit because Padilla’s rights as an “enemy combatant” were not clear at the time — the same claim Bush officials have made in several other cases. “The Court finds that the complaint alleges conduct that would be unconstitutional if directed at any detainee, and therefore finds that the rights allegedly violated were clearly established at the time of the alleged conduct,” wrote Judge White.

That Yoo only wrote the legal authorization for the abuse and didn’t carry it out himself didn’t help him any with the court. “Like any other government official, government lawyers are responsible for the foreseeable consequences of their conduct,” wrote Judge White, an appointee of President George W. Bush. That mistreatment would follow from an authoritative legal memo advising the executive branch that those specific acts of abuse were lawful is not a stretch. The legal complaint also specifically charges that Yoo helped develop the government’s policy in the “war on terror”, and specifically sanctioned the treatment of Padilla as an “enemy combatant,” and the court found that if true, that would give rise to Yoo’s liability for Padilla’s treatment.

One factor weighing in favor of Padilla’s right to sue is that the United States had not afforded him an alternative remedy for the abuse he claims he suffered. The court quoted news reports such as one in The New York Times saying that “President Obama has shown little interest in prosecuting officials of the previous administration, and it is not clear whether there will be a government sponsored investigation of Bush administration policies.”

Padilla’s lawyers are thrilled.

“This ruling gives hope that the courts will not shy away from accountability for those who designed and implemented the last administration’s torture policy,” said Jonathan Freiman, lead counsel for Padilla, in an e-mail over the weekend. He added:

The Court noted what it called “the irony” of Yoo’s position: that Padilla alleges “that Yoo drafted legal cover to shield review of the conduct of federal officials” who tortured Padilla, and that Yoo’s response was “that the very drafting itself should be shielded from judicial review.” Even if, as Judge White notes, the political branches may currently lack the will to hold accountable those who were responsbile for the torture policy, the judiciary has the duty not to avert its eyes.

John Fonte (Hudson Institute), Harold Koh (Yale Law School) and John Bolton (State Department)

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

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

Image by: Matt Mahurin

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

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

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

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

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

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

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

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

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

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

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

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

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

This article has been updated for clarity.

The appointments of Dawn Johnsen, nominated to head the same Office of Legal Counsel that produced those memos (and who’s been strongly critical of the office’s work in the past), and of Harold Hongju Koh, the illustrious Dean of Yale Law School who has been tapped for State Department legal counsel, hang in the balance. Both have already been publicly attacked by conservatives as extreme leftists for, in Johnsen’s case, criticizing the torture memos and supporting the right to an abortion, and in Koh’s, for being a strong advocate of international law. (Dahlia Lithwick at Slate recently catalogued some of the more absurd attacks in her own defense of Koh.)

Horton wrote of the current political struggle:

“Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.”

Koh, as Spencer has written, is a former Clinton administration State Department official who actually cares about human rights: at Alberto Gonzales’ confirmation hearing to become attorney general in 2005, he testified that the infamous August 2002 Office of Legal Counsel memo authorizing torture was “perhaps the most clearly erroneous legal opinion that I have ever read” and a “stain on our national reputation.” Of course, Jack Goldsmith, the former Bush administration OLC official, has also attacked those opinions as “deeply flawed” and “sloppily reasoned,” so Koh is hardly alone.

But Koh — who is the author or co-author of eight books and more than 150 articles on international human rights, business, national security and international law, among other things — has on occasion also boldly expressed his strong respect for international human rights law, which doesn’t go over very well with many conservatives.

In an article published in the Berkeley Journal of International Law in 2004, for example, which FOX News cites, Koh asked: “What role can transnational legal process play in affecting the behavior of several nations whose disobedience with international law has attracted global attention after September 11th — most prominently, North Korea, Iraq and our own country, the United States of America? For shorthand purposes, I will call these countries ‘the axis of disobedience.’”

Putting the United States in the same axis as North Korea and Iraq has, not surprisingly, outraged critics who, like the Bush administration, don’t believe the U.S. ought to be reined in by international legal standards.

Steven Gross, a fellow at the conservative Heritage Foundation, told FOX News that he worries that Koh “cares as much about — if not more about — international law and integrating that into the American judicial system than he does about protecting American prerogatives and American sovereignty.”

And John Fonte, senior fellow and director of the Center for American Common Culture at the Hudson Institute, said Koh’s views amount to “international imperialism. Under Koh’s plan, the Constitution would become secondary and international law would take precedence regardless of what Americans said about the matter.”

The White House vehemently defended Koh’s nomination on Tuesday, telling FOX News that he is “one of the most respected members of the legal community.”

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