April 27, 2009 | WebMemo on Legal Issues
On March 23, President Obama nominated Harold Koh to be the next Legal Adviser, which is the top legal position at the U.S. Department of State.
While Koh has had a distinguished career in government service and legal academia, his views raise serious national security and constitutional questions. Koh's opinions regarding the role that international law and the rulings of foreign courts should play within the U.S. legal system should be explored during his Senate confirmation hearing before the Committee on Foreign Relations, currently scheduled for April 28.
Transnationalism v. American Sovereignty
A trend that runs through Koh's scholarship and public statements is the great weight that he gives to the authority of international courts and organizations. Koh should be questioned during his confirmation hearing regarding his views on crucial matters of national security, sovereignty, and the U.S. Constitution.
Such inquiries should include:
U.N. Security Council "Authorization" for Use of Force. In October 2002, you wrote that U.S. forces should not attack Saddam Hussein's Iraq "without explicit United Nations authorization" and that without U.N. authorization, "such an attack would violate international law." These statements were made despite the fact that the U.S. Congress had already authorized the use of force against Iraq.
The International Criminal Court (ICC). In November 2005, an ambush of a U.S. Marine convoy in Haditha, Iraq, resulted in tragic civilian deaths-deaths that many in the international community called a war crime. If, as you have advocated, the U.S. were to ratify the Rome Statute of the ICC, the ICC prosecutor would have the power to bring war crimes indictments against those Marines if, in the prosecutor's opinion, the U.S. was "unwilling" to do so.
Second Amendment Rights. In 2002, you argued that one of the most pressing issues facing the world is the need for "the global regulation of small arms" and that you support a "global gun control regime." You also praised the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials as "the best model" for the control of illicit manufacturing and trafficking. You stated that the convention requires states "to standardize national laws," that "the only meaningful mechanism to regulate illicit transfers is stronger domestic regulation," and that "supply-side control measures within the United States" were essential.
In this context, you proclaimed references to the constitutional right to bear arms as "needlessly provocative." Finally, you argued that the U.S. could support global gun control "without committing itself to a regime that would affront legitimate Second Amendment concerns." The convention explicitly recognizes that, because "states have developed different cultural and historical uses for firearms," a standardized model is unacceptable.
The International Court of Justice and the MedellinCase. In 2003, the government of Mexico sued the U.S. at the International Court of Justice (ICJ) regarding 51 Mexican nationals-including one Jose Ernesto Medellin, the ringleader in a brutal gang rape and murder of two teenage girls in Texas-who had been convicted of crimes in the U.S. The ICJ ultimately "ordered" the U.S. to provide additional legal proceedings to the Mexican nationals because they had not been informed that a treaty entitled them to assistance from the Mexican consulate. You filed amicus briefs in support of Medellin both in Texas and in the U.S. Supreme Court.
Use of Foreign Jurisprudence in U.S. Courts. In 2004 you wrote that in "an interdependent world, United States courts should not decide cases without paying 'a decent respect to the opinions of mankind.'" The phrase "a decent respect to the opinions of mankind" comes from the Declaration of Independence: "When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
The Legal Adviser Position Is Crucial
Koh's legal opinions must be closely scrutinized because, due to its international scope, the position for which he has been nominated is unlike any other legal position in the federal government. According to the State Department's Web site, the Legal Adviser "furnishes advice on all legal issues, domestic and international, arising in the course of the Department's work," including "formulating and implementing the foreign policies of the United States, and promoting the development of international law and its institutions as a fundamental element of those policies."
If confirmed, Koh will travel worldwide for the next four years to "negotiate, draft and interpret international agreements involving ... peace initiatives, arms control discussions ... and private law conventions on subjects such as judicial cooperation and recognition of foreign judgments." He would also represent the U.S. at treaty negotiations and international legal conferences and be involved in drafting U.N. Security Council resolutions.
The Legal Adviser must therefore be motivated to:
Critical determinations regarding international law will be made during the next four years regarding, among other matters, threats to U.S. national security. In a world where the Iranian nuclear program is advancing unabated and missile launches from North Korea are reaching ever closer to U.S. coastlines, America needs a Legal Adviser who will not subordinate U.S. national interests to the will or whim of the international community.
Steven Groves is Bernard and Barbara Lomas Fellow, and Ted R. Bromund, Ph.D., is Senior Research Fellow, in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.
Statement of Harold Hongju Koh before the Senate Judiciary Committee, Subcommittee on the Constitution, September 16, 2008, 110th Cong., 2nd Sess. ("In addition, the Administration should reengage diplomatically with the Contracting Parties to the ICC to seek resolution of outstanding U.S. concerns and pave the way for eventual U.S. ratification of the Rome Treaty.")
Harold Hongju Koh, "A World Drowning in Guns," Fordham Law Review, vol. 71 (2003), pp. 2333-2361.
See, e.g., Harold Hongju Koh, et al., Brief of Former United States Diplomats as Amici Curiae in Support of Petitioner Jose Ernesto Medellin, Court of Criminal Appeals of Texas, July 29, 2005, and Brief of Former United States Diplomats as Amici Curiae in Support of Petitioner, U.S. Supreme Court, June 28, 2007.
Harold Hongju Koh, "Agora: The United States Constitution and International Law: International Law as Part of Our Law," American Journal of International Law, vol. 98 (January 2004), p. 43.