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The No on Koh Letter:

In April, I signed a joint letter to the Senate Foreign Relations Committee, raising concerns about the nomination Yale Law School Dean Harold Koh to be Legal Advisor to the U.S. Department of State. The No Koh website contains a detailed report on Koh, written by Ed Whelan of the Ethics & Public Policy Center. The website also contains videos, a blog, and a FAQ, although these are aimed more at a lay audience than at persons engaged with legal policy.

While I agree with most, although not necessarily all, of the points made on the No Koh website, my own view on Koh is based on reading six of his law review articles: A World Drowning in Guns, 71 Fordham Law Review 2333 (2003); Is International Law Really State Law? 111 Harvard Law Review 1824 (1998); On American Exceptionalism, 55 Stanford Law Review 1479 (2003); The 1998 Frankel Lecture: Bringing International Law Home, 35 Houston Law Review 623 (1998); International Law as Part of Our Law, 98 American Journal of International Law 43 (2004); Why Transnational Law Matters, 24 Penn State International Law Review 745 (2006).

Deah Koh is an excellent writer and an impressive scholar. But his legal vision is for a substantial diminution of the sovereignty of the American people, and as Legal Advisor to the State Department, he would have tremendous power to advance that vision. As Dean Koh has explained, his writings on transnationalism are not merely descriptive; they are also a strategy for activists. Of course Dean Koh has the right to advocate as sees fit. The Constitution, however, requires that major presidential appointees must earn the Advice and Consent of the United States Senate. The Senate's duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee's record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.

Anderson (mail):
and as Legal Advisor to the State Department, he would have tremendous power to advance that vision

Really?

Permit me to doubt.
5.20.2009 3:17pm
Oren:
So, I was going to ask the same thing Anderson did, except probably more politely and with a request for specific examples of how the State Dept (as opposed to DOJ) can change the legal climate.
5.20.2009 3:23pm
Recovering Law Grad:
Obama won the election. If you don't like the policies he pursues, you'll have another chance in four years. I understand that Koh's position is Senate-confirmable. However, (1) it shouldn't be, and (2) the Senate should give extreme deference to the President's choices, only rejecting them when there is something really egregious in their background, when there might be a substantial conflict of interest, etc. Policy just doesn't cut it and there are no questions about this man's character, intelligence, honesty, etc.

To the extent the Ds are to blame for creating a culture of challenging nominees, (1) they are/were wrong to do so, (2) that doesn't make it right for Rs.
5.20.2009 3:28pm
Oren:
RLG, there has to be some point at which a nominee's policy's are so far out of the mainstream as to be unacceptable to the Senate. Bolton for UN strikes me as an apt example.
5.20.2009 3:40pm
MarkField (mail):

The Senate's duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee's record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.


Just to supplement the point already made by Anderson and Oren, it seems to me that the point of even a weak unitary executive theory is that it holds the President himself responsible for the actions of the Executive branch. That Prof. Koh might "weaken the sovereignty" in the absence of Obama's own determination to do so strikes me as, well, implausible.

Also, I'm not at all sure what you mean here. The sovereign authority of the United States remains where it has always been -- in We, the People. Nothing Koh does or fails to do can "weaken" that.
5.20.2009 3:43pm
Constantin:
Policy just doesn't cut it

What if a nominee advocated a return to slavery? Or, even worse, was anti-abortion?
5.20.2009 3:44pm
AJK:

Policy just doesn't cut it


Why not?
5.20.2009 3:44pm
rosetta's stones:
The Left took down John Bolton, because he offended certain of their base, and now the Right is gonna take down this guy, for offending certain of their base.

The 2 Foggy Bottom guys themselves are just pretexts, and the offices formalities, it seems. But the real arguments are real, and both sides were/are serious about them.
5.20.2009 3:46pm
David Welker (www):
Kopel,

Out of curiosity as someone who does not know much about the position of Legal Advisor to the U.S. Department of State, I am curious exactly how Koh could use this position to reduce the sovereignty of the United States. What sorts of scenarios do you have in mind?
5.20.2009 3:47pm
Anderson (mail):
except probably more politely

Well, that goes without saying. Tho I am sort of digging the idea that the mild-mannered "Legal Advisor" to the State Dep't, who dresses in pinstriped suits and has a high squeaky voice, by night dons his black tights &cape and becomes the Evil Super-Villain SOVEREIGNTY CRUSHER, with "tremendous power" to unmake the very legal fabric of the cosmos ... er, the American portion thereof, anyway.

Because I'm not quite sure what changes the ESV would be able to make in our laws, without the "advice &consent of the Senate" which I recall having read about somewhere very, very recently.
5.20.2009 3:49pm
David Welker (www):
Last time I checked, there is no specific restrictions in the Constitution on the grounds upon which the Senate is allowed to withhold its consent. I am not saying that it should do so in the case of Koh (I have no opinion on that question), but as a general matter I am of the position that the Senate can decide on what grounds consent will be withheld or not.
5.20.2009 3:51pm
One Man's View:
The Legal Advisor is the chief interpreter of international law for the Secretary of State. And since the Secretary of State's views on international law are sometimes binding on other agencies (which, for example, cannot themselves negotiate or sign agreements without her permission) and always influential, the Legal Advisor's interpretations may indeed become effective law of the land. Say, for example, the Legal Advisor address the question of whether or not a particular treaty is self-executing (that is whether it becomes binding law upon sigining or requires an affirmative act of Congress to substantively become US law). Even if that view does NOT itself constitute law it would (unless overruled by the President (or in rare cases DOJ-OLC)) become effective law within the Executive, binding agenices to abide the requirement as a matter of policy and not to conduct activity (domestically or internationally) in conflict with that treaty. I can imgagine many international treaties that are hortatory in nature that we would not wish to become binding US policy.
5.20.2009 3:58pm
DEM (mail):
From one of Koh's "On American Exceptionalism":


By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, n10 libel, n11 commercial speech, n12 and publication of national security information. n13 But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of "margin of appreciation," familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness.


In sum, he doesn't find the First Amendment "too deeply unsettling" to world order. What a ringing endorsement!
5.20.2009 4:03pm
PatHMV (mail) (www):
Obligatory hypocrisy notice:

Well, if no lesser office really matters, why were the Democrats so upset about (and fought so hard against) the appointments of the likes of Bolten?

Indeed, the President is entitled to substantial deference in his choice of executive officers. He won the election, and that should have an impact. However, the mere fact that all executive branch officials ultimately answer to the President and in theory are to pursue his policies rather than their own does not mean that those officials have no power, that their views are immaterial and irrelevant. Hillary Clinton as Secretary of State handles foreign policy matters differently than some other potential appointee.

Moreover, the President is responsible for many decisions and issues, few of which can actually be debated in public during a long campaign. We have historically used the confirmation process to conduct specific policy debates on such issues. As long as the opposition doesn't resort to character assassination in order to achieve a policy goal, it's entirely appropriate to deny confirmation as a part of that larger debate.

To notice that he will indeed have power to affect U.S. interests in such a position is hardly to claim that he will have evil super powers. Anderson is following a popular rhetorical trick of attributing to one's opponent absurd and extreme arguments not actually made.

Moreover, when the Senate consents to someone, it is to some extent putting its imprimatur on the views that person is likely to espouse in the policy position to which he is appointed. Much is made, for example, of the fact that most Republicans voted to confirm Ruth Bader Ginsburg to the Supreme Court. The fact is often touted as evidence that her views weren't out of line with the mainstream.

If some other President were appointing an individual with a history of promoting white separatist ideas, for example, nobody would suggest that his views (even in an area not related to his new policy responsibilities) are immaterial. And the Senate would certainly refuse on principle to put its seal of approval on such views by consenting to the nomination.

Koh's views on the power of international law to constrain our domestic law are indeed extreme. The Senate should not endorse such views, and should refute them by rejecting the nomination.
5.20.2009 4:06pm
Johnny Canuck (mail):
"I can imgagine many international treaties that are hortatory in nature that we would not wish to become binding US policy."

Then the US should not become signatory to such treaties. Problem solved.

Or are you saying US should become signatory to treaties with no intention of abiding by them?
5.20.2009 4:06pm
Anderson (mail):
Even if that view does NOT itself constitute law it would (unless overruled by the President (or in rare cases DOJ-OLC)) become effective law within the Executive, binding agenices to abide the requirement as a matter of policy and not to conduct activity (domestically or internationally) in conflict with that treaty.

OMV, the Answer Man!

Thanx, but it's a little tricky for me to think of anything really awful Koh could do that wouldn't result in (1) a shitstorm that would (2) provoke President Wishwash into rescinding whatever it is.

.. Tho since Kopel's on this, I infer that "gunz!" figures in the answer somewhere.
5.20.2009 4:06pm
rosetta's stones:

"...the Legal Advisor's interpretations may indeed become effective law of the land."


Or on a more personal note, let's say my dual US/Foreign Country citizenship is suddenly found to be unacceptable by the State Department (as it has been in the past, per my understanding), because some procedural requirement is met/unmet. They can make it policy to strip me of my US citizenship. Just a few minor reinterpretations of the law, and presto.

This guy is a lawyer. Make no mistake, he has to be watched.
5.20.2009 4:18pm
Donny:
John Bolton believed the UN shouldn't exist. I'm not sure that count as a policy-based reason for rejecting him as Ambassador to the UN.
5.20.2009 4:19pm
MarkField (mail):
PatHMV, I think we all agree that there are probably some nominees whose views are so extreme that the Senate should refuse to confirm them (I'm talking Exec Branch here, not SCOTUS), though we undoubtedly disagree on who those nominees might be and what might be "extreme". The problem some of us are having is that Kopel hasn't given us anything beyond his conclusion, and that alone doesn't seem very plausible.
5.20.2009 4:30pm
One Man's View:
Johnny Canuck -- The US signs many treaties that are not self executing and then enacts them into positive law with various limitations, caveats and other restrictions that are consistent with US constitutional law. This is completely within our rights since we can condition how and what we sign up for.

Moreover, of course, often the interpretation of broad pronouncements (e.g. UN Conventions against Racisim) are subject to ... shall we say, "unusual" implementation at the national level (e.g. the UN equation of Zionism with Racism) that we would not want to become automatically binding on the US by act of the UN. And so ... we say that we reserve the right to interpret international agreements consistent with our understanding.
5.20.2009 4:40pm
The Unbeliever:
John Bolton believed the UN shouldn't exist. I'm not sure that count as a policy-based reason for rejecting him as Ambassador to the UN.
Assuming that's an accurate summary of his position, what if that was a similarly accurate reflection of the position his boss (i.e. the President) has as well? Should the Senate keep rejecting candidates until they find one who disagrees with his future boss but agrees with the Senate's policy position?
5.20.2009 4:49pm
BGates:
the mild-mannered "Legal Advisor" to the State Dep't, who dresses in pinstriped suits and has a high squeaky voice

Here I thought you had objected to various Bush Administration actions based on some sort of principle, and it turns out you go by vocal timbre, like some sort of house pet.

This suggests a winning strategy for 2012 - proud American exceptionalism for some, squeaky chew toys for others!
5.20.2009 5:07pm
Daniel Chapman (mail):
Anderson, you used to contribute something besides snark. What happened?
5.20.2009 5:08pm
Sarcastro (www):

This guy is a lawyer. Make no mistake, he has to be watched.

Don't look now, but you're surrounded!

[Though I would note that policy does cut it. Elections have consequences, including those where Republicans win.]
5.20.2009 5:49pm
Richard Riley (mail):
Most (95%-plus) of the issues faced by the State Department Legal Advisor are going to be tricky - but not especially sovereignty-related - questions of administrative law, federal personnel law, the law of diplomacy, and the like, where the best person for the job is a very sophisticated legal analyst with a lot of knowledge of international and diplomatic law. I'd say Koh fits that bill very nicely (sounds like Kopel agrees), and on that basis ought to be confirmed. I just don't think Koh would have much or any opportunity to implement his views on sovereignty. I also am going to give him enough respect as a lawyer to assume he won't be looking for opportunities to try to enact his controversial views.
5.20.2009 6:58pm
gerbilsbite:
As long as Koh's legal vision doesn't include expanding the power of the Executive to the point where it thinks it can Constitutionally torture people to death in secret overseas prisons, he's fine with me.

Talk about diminishing America...
5.20.2009 10:07pm
zuch (mail) (www):
Prof. Kopel:
But his legal vision is for a substantial diminution of the sovereignty of the American people...
When the gummint starts handing me purple robes and does what I say it should, I can start worrying about losing my sovereignty. You folks on the right, however, seem to be most intent on making sure that not only is there no big furry bathrobe for me, but that I can't even haul my gummint into court when I think they've wronged me. If you get on my side, and start demanding the gummint be held accountable, I'll consider you a supporter of the sovereignty of the "Merkun people. But you may have prodded me to get off my duff and write a letter too. One supporting Koh. The gummint needs to know there's not just a bunch of loud RWers out there.

Cheers,
5.20.2009 10:33pm
AlanDownunder (mail):
I read Koh's 'Exceptionalism' article. It's no suprise that aiders and abettors of the illegal war that Koh identified do not favour his nomination.
5.21.2009 12:03am
M N Ralph:
If Republicans want a scalp in retaliation for Bolton, I'm fine with that. But, they only get one free shot, so they better spend it on someone they really find extreme.
5.21.2009 12:39am
Christopher Cooke (mail):

The Senate's duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee's record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.


Translation: I don't like his politics.
5.21.2009 12:55am
huskylaw (mail):
What's the reason for thinking that diminishing the sovereignty of the American People is necessarily a bad thing?

Our constitution does say that "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land". Seems to me that our very constitution gives some pretty serious sovereignty over to the international law that's been created by treaties negotiated by the executive and ratified by Congress.

So wouldn't resolutions passed by the UN, because they are an organization we have assented to via treaty, be binding and part of the 'supreme law' of our land? Maybe this Koh guy thinks we've strayed away from our constitutional obligation to make treaties supreme. I could actually see how this would have a better reputation with other parties we might make agreements with in the future.
5.21.2009 3:16am
Dave N (mail):
huskylaw,

The United States has NEVER acknowledged the right of United Nations Resolutions (as opposed to Security Council resolutions) to be binding--which I think is an eminently good thing. I do not want an anonymous bureaucrat, unaccountable to American officials in any matter, to be setting American polity.
5.21.2009 10:37am
Connecticut Lawyer (mail):
If UN resolutions were binding on the US, that would be a rather good reason for the US to leave the UN.
5.21.2009 11:47am
Anderson (mail):
Anderson, you used to contribute something besides snark. What happened?

A post as meritless as this does not merit anything beyond snark.

As Huskylaw (you in Seattle, Husk?) notes, Kopel relies on an unstated premise that is simply risible: ANY diminuition of sovereignty is to be avoided.

On that logic, the 13 states would never have assented to the Constitution which Kopel now professes to be so interested in defending against Super-Koh.

I doubt whether sovereignty is a good in and of itself, but regardless, even if it were a good, it would still be a good that could be diminished in exchange for benefits.

And I continue to doubt that the legal advisor to State can singlehandedly, unilaterally make any significant dent in American sovereignty without the involvement of the Senate.
5.21.2009 11:50am
Anderson (mail):
(I do not btw express an opinion on UN general resolutions, which I suspect are a bit too freely arrived at to be binding law on the members.)
5.21.2009 11:51am
Gordo:
I guess "reducing American sovereignty" includes restricting the ability of Mexican drug lords to buy high tech weaponry from American gun dealers.
5.21.2009 1:04pm
24AheadDotCom (mail) (www):
As I've pointed out a few times to no effect, the easier way to oppose Koh is to point out that he supported illegal activity. The only question is whether he knew what he supported and lied, or was too dumb to figure out what he was supporting.
5.21.2009 2:08pm
Anderson (mail):
Maybe, 24, people will start paying attention when you point out what law Koh broke by suggesting that city residents get ID cards.
5.21.2009 3:20pm
John Moore (www):

I guess "reducing American sovereignty" includes restricting the ability of Mexican drug lords to buy high tech weaponry from American gun dealers.

Is this meant in jest? While some weapons are purchased in the US, the press reports are grossly inflated. Drug gangs like assault rifles, grenades and machine guns, both extremely tightly controlled in the US. The assault rifle version of the AK-47 - meaning, selectable fire - costs about $10,000, while it is $500 in many other parts of the world.

For those not gun knowledgeable, a "machine gun" (fully automatic or selectable-fire weapon) cannot be purchased in the US without time consuming background checks and a lot of money.
5.21.2009 10:58pm

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