A coalition of conservative activists is beginning to form around opposition to Harold Koh, President Obama’s nominee to become the legal advisor for the Department of State. In Koh, opponents of “transnational” legal theory have found a test case to prove that international law is a political loser–and a way to preemptively discredit a possible candidate for the Supreme Court.
“This is the culmination of years of arguments about international law superseding our own Constitution,” explained John Fonte, a senior fellow at the conservative Hudson Institute who is lobbying conservative jurists and lawyers to sign a letter opposing the Koh nomination. “This had been an academic argument, then an obscure argument, but it’s surfacing now because there’s real scrutiny being paid to Harold Koh’s views.” Other conservatives who talked about Koh on Wednesday wanted to take the chance to “create a paper trail” of Koh criticism, to knock him down the list of possible Supreme Court appointees.
Koh, the dean of Yale Law School since 2004 and a former assistant secretary of state for democracy, human rights and labor under President Bill Clinton, was announced as the nominee for the State Department job on March 23. His nomination didn’t come as much of a surprise to conservatives, as Koh, long considered one of the most powerful legal minds on the left, had been floated as a possible Obama Supreme Court nominee as long ago as September 2008. At the time, Center for Ethics and Public Policy President Ed Whelan wrote a series of posts about Koh’s legal theories for National Review Online, digesting Koh’s views for conservative readers. Among Koh’s sins were appealing to “decent respect to the opinions of humankind” in opposing the death penalty, declaring “lesbian and transgender rights” a closely-held legal position, and citing “international and foreign court decisions” in an amicus brief arguing for the overturn of Texas’s sodomy law.
“What judicial transnationalism is really all about,” wrote Whelan, “is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.”
Since Koh became a candidate for the State Department job, Whelan has kept up a new drumbeat of criticism–”yeoman work,” said Fonte–and helped build a record of Koh’s most controversial stances, turning the low-visibility job into the subject of heated arguments on talk radio and Fox News. This week Fonte began distributing a letter from the Coalition to Preserve American Sovereignty, an ad hoc group started in 2007 to oppose the obscure Law of the Sea Treaty. That original mission was kicked off by Frank Gaffney, now the head of the Center for Security Policy, who is not behind this current campaign but said on Glenn Beck’s Fox News show last week that Koh’s transnationalism meant “getting the U.S. Government to abide by laws that the Congress wouldn’t pass because the American people wouldn’t accept them.”
The CPAS letter, addressed to Senate Foreign Relations Committee Chairman Sen. John Kerry (D-Mass.) and ranking member Sen. Richard Lugar (R-Ind.) warns that the legal advisor gets a “worldwide platform” and cites some of Koh’s “representative legal opinions”–that the Iraq War “violate[d] international law” and put America in an “axis of disobedience,” that decisions made by the International Criminal Court matter in America, that the United States should ratify the Convention on the Rights of the Child.
“Due to the international nature of the position,” reads the letter, “the Legal Advisor must be relied upon to protect and defend the rights of American citizens and the interests of American institutions from the increasing (and to us, unwelcome) influence of international organizations, and must promote policies that preserve U.S. national security prerogatives, self-governance, and constitutional principles while defending American values from encroachment by transnational actors. Since many of Mr. Koh’s closely held opinions fall far from that standard and are contrary to those principles, we respectfully urge you not to support him for this critical position.”
The purpose of the letter is to put as many prominent conservatives and foreign policy experts on record as possible opposing Koh in a campaign that will kick off when confirmation hearings begin, some time after Congress returns from recess in late April. If Koh’s record is exposed, and the media covers it, Koh’s opponents believe the public will round against him. “When John Kerry was running for president and said that the US decision to use its armed forces had to pass a ‘global test,’ we saw how popular that was,” said Steven Groves, a fellow in international legal issues at the Heritage Foundation. “Glenn Beck has really been hammering Koh.”
As an example of how Koh’s views make him a lousy fit for the job. Groves points to the prosecution of eight marines for a firefight in Haditha, Iraq. Twenty-four Iraqis died, and the marines were put on trial, but all but one have now been cleared. If the United States was part of the International Criminal Court, Groves argues, then the marines could have been prosecuted again in the Hague. “That is not black helicopter, conspiracy stuff,” Groves explained. “That’s a completely possible scenario.”
The push against Koh bares some resemblance to the successful campaign against Lani Guinier, Bill Clinton’s first nominee for assistant attorney general for civil rights who withdrew her name after being accused of supporting racial segregation to increase the political clout of minorities. But conservatives see a more obvious parallel to Koh in John Bolton, the former permanent representative to the United Nations who was denied a full vote in the Senate after a full-court press against his critical views of the institution, and of international law.
“The argument that you give a pass to people who serve as the pleasure of the president, that’s pretty much gone,” said Fonte. “Bolton was not confirmed because they didn’t like his view of international law.”
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.