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Newsweek Previews Debate Over Koh:

Newsweek features an essay by Stuart Taylor and Evan Thomas previewing the debate over the nomination of Harold Koh to the State Department and the broader question of the proper use of foreign and international law in U.S. courts. As the article notes, Koh is a highly regarded academic, at the top of his field. He is "well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left." And this is particularly true in the field of international law. As I've said before, I think the President is entitled to name as his advisors those who share his views and policy agenda. But I also think Koh's stated positions on various issues, from the legality of the Iraq War to the relevance of international law to whether the death penalty is constitutional, could make for an interesting confirmation hearing.

Related Posts (on one page):

  1. Newsweek Previews Debate Over Koh:
  2. Questions for Harold Koh:
geokstr:

He is "well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left."

Which is exactly why most members of the media and professoriat consider themselves to be moderates - they're smack dab in the middle of the far left crowd they cloister themselves within.
4.19.2009 2:32pm
Troll (mail):
Being in the mainstreaam at elite law schools logically entails being too radically left to be fit for serving in a public position.
4.19.2009 2:32pm
BooBerry (mail):
Please, let's all jump at the opportunity to bash academics. Let's hope that the non-academic-types who royally f*cked everything up in the Bush administration come back (Gonzalez, Addington, Bybee) and show us how to do things correctly.
4.19.2009 2:45pm
josil (mail):
For public office, there is nothing that inherently disqualifies academics as distinguished from those in more prosaic pursuits. It is worth noting that talking and writing about ideas is not the same as acting on them. The latter is a more serious matter if only for the number of people affected.
4.19.2009 2:57pm
Oren:
Does State have any real impact on domestic law such that this is a threat? If we appointed an AG with the views attributed to Koh about international law, he would be in a position to change domestic law but in State he seems rather harmless.
4.19.2009 3:26pm
Donald (mail):
NYT has called for Bybee's impeachment.

http://www.nytimes.com/2009/04/19/opinion/19sun1.html

I'd say that whether this occurs is probably at least as consequential to the US relationship with international law as anything Harold Koh will do in office.
4.19.2009 4:11pm
AndrewK (mail):
I don't care how far to the left Koh is: his job will be as an advocate for the Executive. The adversarial process will ensure that no matter his ideology, he will be aggressively pursuing expanded executive prerogative. So let's save confirmation battles for where it matters. Koh in the State Department is fine: a Koh or a Chemerinsky on the Supreme Court would be a problem. On the other hand, the Supreme Court also has an institutional character to it that at least forces the Justices to make a doctrinal argument, rather than simply disposing cases with reference to the identities of the parties.
4.19.2009 5:10pm
David M. Nieporent (www):
Does State have any real impact on domestic law such that this is a threat? If we appointed an AG with the views attributed to Koh about international law, he would be in a position to change domestic law but in State he seems rather harmless.
As the previous post notes, Koh supports using the ATCA to impose vast financial penalties on American companies.
4.19.2009 5:53pm
24AheadDotCom (mail) (www):
What's odd here is that no one else wants to discuss something that could be used to torpedo Koh's nomination and that doesn't require someone to be a legal scholar.

Back at Yale, he supported NewHaven handing out IDs to those here illegally. And, he couldn't see a problem with it.

For those not that familiar with these issues, handing out such IDs makes it easier for those who came here illegally to stay here (after breaking our laws). While living here illegally, they'll be involved in other law breaking: some will engage in ID theft, some will be hired illegally, and so on. And, there in the background, banks want to accept their deposits (of money that was earned illegally) and send some of that illegally earned money out of the U.S. And, those banks then take a portion of their profits and donate it to politicians who look the other way when it comes time to enforce our laws. That's not bags-of-cash corruption, but it is corruption nonetheless.

The bottom line is that by supporting the ID, Koh was supporting a sleazy web of illegal activity and corruption. If a citizen journalist who's familiar with these issues could get video of them walking him through all the things he was enabling and then could upload that to Youtube, that could be very helpful.
4.19.2009 5:59pm
PersonFromPorlock:
BooBerry:

Please, let's all jump at the opportunity to bash academics. Let's hope that the non-academic-types who royally f*cked everything up in the Bush administration come back (Gonzalez, Addington, Bybee) and show us how to do things correctly.

There are many ways to be wrong, as the Bush administration and its critics amply demonstrated. However, academics should be abused for the good of their souls.
4.19.2009 6:08pm
Oren:

As the previous post notes, Koh supports using the ATCA to impose vast financial penalties on American companies.

And what can he do from State that makes those claims more liable to succeed?
4.19.2009 6:59pm
BooBerry (mail):
24AheadDotCom:

I'd love to see you and Koh in a legal debate on immigration issues. Then again, it wouldn't really be fair. You have absolutely no idea what you're talking about and Koh was the dean of Yale Law School.
4.19.2009 7:27pm
RPT (mail):
From an academic and analytic perspective, the use of the term "the left" in many of these discussions is completely worthless. It means only that the writer doesn't like the person. There is no consistently used or followed definition of ideology or policy preference correlating to the term.
4.19.2009 7:37pm
Michelle Dulak Thomson (mail):
RPT,

As long as you'll concede the same for "the right," I'm prepared to agree with you.
4.19.2009 7:49pm
Cornellian (mail):
RPT, you're just noticing that now?
4.19.2009 8:33pm
geokstr:

Michelle Dulak Thomson:
RPT,

As long as you'll concede the same for "the right," I'm prepared to agree with you.

Michelle, prepare yourself to not be agreed with.
4.19.2009 9:39pm
D.O.:
Oren,
As far as I can understand the ATCA post (my knowledge is exhausted by this source) the role of State department is to vigorously object to such lawsuits or viceversa, whatever they choose. On another topic, Koh might object to extradition to the US of terrorism suspects who might be death penalized here if he believes that death penalty is beyond the law. There was at least 1 contention of the sort with Denmark or some such. Anyways, it will not kill you.
4.19.2009 10:02pm
ll (mail):
I expect the confirmation hearings will be a lovefest from the Democrats and a "I don't care for him but it will vote for him so I won't be called an extremist" fest for the Republicans, with little elucidation of his actual approaches to the State Dept. position, plus a lot of "I said I would limit the 1st amendment to be in accord with international law and the laws of other nations, but I didn't really mean it."

I did like this from the article:


to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution.
4.19.2009 10:34pm
24AheadDotCom (mail) (www):
BooBerry:

That's a cute comment for someone who doesn't even have the guts to provide an email address much less a better way to identifying who they are. However, I'm sure that most people visiting this site aren't swayed by "arguments" like yours, since it was simply an ad hom with no valid counter-argument of any kind.
4.19.2009 10:35pm
RPT (mail):
Michelle:

Of course I agree with you re the "right". Clarity is a nonpartisan virtue.

Cornellian:

No, I picked that up a long time ago, and have commented as much.

Geokstr:

Time for another teabag for you.
4.19.2009 11:43pm
BooBerry (mail):
24AheadDotCom:

I just perused about ten different posts on your site related to this issue. First, let me say how impressed I am by your willingness to hyperlink your previous posts as factual support for your assertions. I was drawn into a voyage, in a word, down a tube of your own wild speculation and idiocy.

Second, not a single post I saw analyzed any legal issues with the largely symbolic City ID-card program New Haven created. Perhaps you'd care to enlighten me (and the rest of the site) now with a summary of how and why this program is "illegal." I am guessing you're not a lawyer and know nothing about the law, but I'm willing to be surprised.

I make no excuses for my anonymity. Do you make excuses for your stupidity?
4.19.2009 11:47pm
Frater Plotter:
Please keep in mind: Mr. Obama and his administration were not imposed upon the country by force in some sort of elite revolution. He was elected by a larger majority than Bush the Younger or Clinton ever got. He is representative not of the "far left" but of the current American mainstream.

The mainstream may be further to the left than many posters would like ... but it is simply self-contradictory to regard the mainstream as a radical fringe element. You may fairly claim that his avowed positions are bad policy, that they are unconstitutional, or that his wife wears gratuitously slinky dresses; however, understand that you are arguing against the mainstream and not for it.
4.20.2009 12:22am
24AheadDotCom (mail) (www):
BooBerry:

Neither here nor in any of my posts about NewHaven did I say that their ID program was illegal, as you claim. Have someone read my first comment and my posts to you; the issue is that what Koh supported enabled illegal activity and is part of a larger trend of politicians helping banks profit from money that was earned illegally. If you're a lawyer, I pity your clients.
4.20.2009 12:27am
BooBerry (mail):
24AheadDotCom:

I'm sure you don't need to be reminded that simply being an undocumented alien in the U.S. is not a crime. At least, I hope you understand that foundational point in immigration law. Now, as to your general nonsense that Koh should be condemned for not personally and forcibly hand-delivering each undocumented alien in New Haven to the federal authorities and for supporting a program that is not punitive (the nerve!) to help these aliens, I suggest you read Frater Plotter's post, above.
4.20.2009 12:41am
Cornellian (mail):
to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution.

Tell me about it. The distribution of prostitution around here is wildly uneven.
4.20.2009 12:41am
Strict:
24,

You've done this several times already, so it doesn't seem to be a mistake. New Haven is not spelled NewHaven. I don't know if there's some kind of point you're trying to make by intentionally spelling it that way.

And the New Haven City Council approved the ID cards by a 25-1 vote. Koh had nothing to do with it.



handing out such IDs makes it easier for those who came here illegally to stay here


Wrong. Possession of the Elm City ID Card has no bearing on ease of entry into the US, immigration status, or deportation or removal proceedings. When ICE comes knocking, the Elm City Card means nothing.

Allowing people to deposit money in banks - instead of keeping it all in cash in mattresses and glove compartments, has an ANTI-CRIME effect.


those banks then take a portion of their profits and donate it to politicians who look the other way when it comes time to enforce our laws. That's not bags-of-cash corruption, but it is corruption nonetheless.


Ah, yes. Koh gave his moral support to a legislature that essentially unanimously voted to pass a municipal law that will enable immigrants to deposit their paycheck in a bank. The banks, in return, give Koh a piece of that pie for his services. Impressive work detective, you've cracked the case!

P.S. Law school deans are not law enforcement officers.
4.20.2009 12:55am
Strict:

handing out such IDs


24,

Nobody is "handing out" those IDs.

If you want one, you have to prove you live in New Haven, and you have to pay. They are not free. They are not handed out.

Thanks for shedding some light on that horrible skeleton in Koh's closet. How will he ever survive such a scandal?
4.20.2009 1:00am
BooBerry (mail):
Thanks, Strict. Hopefully 24Ahead will stick to regions of the interwebs where ignorance is bliss.
4.20.2009 1:08am
24AheadDotCom (mail) (www):
BooBerry:

Please stop wasting others' time.

1. The first part of your previous outburst is discussed here. If you're an immigration lawyer, I pity your clients even more.

2. The rest of your post is a strawman. There's a difference between Koh reluctantly supporting NH's plan for legal reasons and what he did: he couldn't see a problem with the program itself. And, as my many posts about this issue show, he and his colleagues at Yale went much further than simply reluctantly supporting the program.

If NH wanted to let people hand out pot, Koh could say, "I don't support using or selling pot, but I think what NH is doing is legal and I'll defend them." That might be defensible. However, if he'd said, "Dude, I don't see a problem with selling pot", then people might assume he's a pothead who can't think through all the impacts of pot sales. What he did with the ID cards is like the latter, not the former.

As for "Strict", I really shouldn't have to say this, but if there are two CT cities and one has a very welcoming posture towards those here illegally - including handing out ID cards - and the other participates in the 287g program, even "Strict" should be able to figure out which city is going to attract those here illegally.

I also never said the banks paid off Koh; stop lying.

As for your "ANTI-CRIME effect", allowing banks to profit from money that was earned illegally leads to those banks in effect paying off politicians to look the other way to further illegal activity. Just some of my posts about that are linked here.

But, thanks for showing everyone just how dishonest Koh's supporters are.
4.20.2009 1:38am
Perseus (mail):
Please, let's all jump at the opportunity to bash academics.

As an academic, I heartily agree.

From an academic and analytic perspective, the use of the term "the left" in many of these discussions is completely worthless.

I find that it is generally non-conservatives who makes this claim.
4.20.2009 1:49am
Ricardo (mail):
As for your "ANTI-CRIME effect"

It's not theoretical. New Orleans has seen a spike in pay-day robberies due to the influx of illegal Mexican immigrants who take construction jobs and get paid in cash. Blue-collar-looking Mexicans are seen as easy prey by criminals who are potentially carrying hundreds of dollars in cash. Of course, even this spike is believed to understate the problem since most victims won't go to the police. Payday robberies used to be quite common in the U.S. and were largely eliminated due to check-based or direct-deposit-based payroll.
4.20.2009 2:05am
Ryan Waxx (mail):
Booberry: I was drawn into a voyage, in a word, down a tube of your own wild speculation and idiocy.


How is this compliant with the comment rules? Normally I ignore such trolling, but that's really darn blatant.
4.20.2009 9:00am
Ryan Waxx (mail):
Nobody is "handing out" those IDs... you have to pay. They are not free.


Because as everyone knows, making people pay for an ID means you aren't really distributing them!
4.20.2009 9:04am
geokstr:

RPT (mail):
Geokstr:

Time for another teabag for you.

And another typically disgusting personal attack from you.
4.20.2009 9:15am