From Commentary Magazine's "Contentions" Weblog
June 25, 2009

At the President’s Suggestion — and Now, at His Command

By Ted R. Bromund

Congressional Quarterly reported yesterday on the then-pending cloture vote on the nomination of Harold Koh to be Legal Adviser to the State Department, and on the anxiety that Republicans have expressed about his legal transnationalism, which seeks to “bring international law home” by subsuming it into the U.S. legal system without Congressional action. Koh, realizing that being tagged with that would hurt his nomination, was at pains to deny that this is what he wants, and CQ notes his denial - with a quotation directly from Koh that makes the case for the opposition:

They are only binding in our court, international and foreign law, when judges make them so, the president suggests that they should be so, or Congress embodies them into an act of Congress that’s signed by the president . . . . International and foreign law don’t become our law unless they are brought into our law by an act of American legal institutions.

I have been reading Koh’s writings for months. At times, it’s Alice in Wonderland, six impossible things before breakfast stuff. But this one made my jaw drop. Forget about the argument that judges have the power to make international and foreign law binding in U.S. courts, even though that’s legal transnationalism in a nutshell. What really shocked me is Koh’s contention that international and foreign law are binding when “the president suggests that they should be so.” So not only is the president an “American legal institution,” he also has the power to bind U.S. courts to follow foreign law with a simple suggestion.

True, Koh’s said this kind of thing before. In 2002, he described “informal state-to-state gatherings” as a “legal process” that constituted “a law-declaring forum that can operate at the global level” and “declare an international norm.” A few months ago, on the Heritage Foundation’s blog, I pointed out that this “implies that the informal, international word of the President or his representatives is law, and therefore incumbent upon the State Department’s Legal Adviser to enforce. This is a radical claim.”

But even I didn’t think that Koh would put it quite as plainly as he did in the CQ piece. As long as Koh likes what he says - because he certainly didn’t extend that kind of deference to George W. Bush - Koh believes the President’s word is law. With thousands of pages of legal writing behind him, it was always going to be tricky for Koh to escape from his record. But quotations like this one make me wonder why he even bothered to try, or how anyone can claim with a straight face that his repeatedly-expressed beliefs are not, in fact, his. Perhaps the answer is simple: it works. Koh won his cloture vote today, by a pretty comfortable 65-31 margin.

Posted - 06.25.2009 - 8:15 AM

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http://www.commentarymagazine.com/blogs/index.php/bromund/71352

Ethics And Public Policy Center
April 20. 2009

Harold Koh's Transnationalism

A Collection of Posts on the State Department Legal Adviser Nominee

By M. Edward Whelan III

ARTICLE

National Review Online's Bench Memos
Publication Date: April 16, 2009

[In a series of posts on National Review Online's Bench Memos blog that earned prominent attention, EPPC President Ed Whelan exposed the radical transnationalist views of controversial State Department legal adviser nominee Harold Koh. Immediately below is the outline of the series, [and the URL linking to all of it.]]

1. Harold Koh's Transnationalism (overview of series)

2. What "transnationalism" is

3. Customary international law

a. What customary international law is

b. The transnationalist game on customary international law

4. Treaties

a. The scope of the treaty power

b. The domestic legal status of treaties

c. CEDAW as a case study

(1) CEDAW and the CEDAW committee

(2) Koh's remarkable testimony about CEDAW

d. The treaty game

5. Constitutional law

a. Reinventing the Constitution (Part 1): Koh's positions

b. Reinventing the Constitution (Part 2): The flaws in Koh's positions

c. Reinventing the Constitution (Part 3): What Koh's positions threaten

d. The constitutional game

6. The role of the State Department legal adviser

http://www.eppc.org/publications/pubID.3793/pub_detail.asp

From Commentary Magazine's "Contentions" Weblog
June 23, 2009

A “Distinctly ‘Feminist Procedure’”

By Ted R. Bromund

Yesterday evening, Senator Harry Reid filed cloture on the nomination of Harold Koh, formerly Dean of Yale Law, to be Legal Adviser to the State Department. There were multiple holds on Koh, so absent administration willingness to make a deal this was the only way forward. It will take every Democratic vote to get to the sixty required.

No matter where you stand on Koh it’s difficult to avoid a sneaking admiration for him. So much of academia at its most public is performance art - even if the issues at stake are serious - and Koh is a superb performer.

http://www.commentarymagazine.com/blogs/index.php/bromund/71141

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From The New Ledger
May 25, 2009

American Exceptionalism and its Enemies

By Ted Bromund

The United States is an exceptional nation. Most Americans would not regard that as a controversial statement. And there is a good reason for that: it is true.

. . . or Koh, all American exceptionalism is bad: the only relevant question is which part of the tradition is the worst. . . .

Ted R. Bromund is the Senior Research Fellow at the Margaret Thatcher Center for Freedom and a frequent contributor to Commentary.

©2009 THE NEW LEDGER PUBLISHING COMPANY, LLC. All rights reserved.

http://newledger.com/2009/05/american-exceptionalism-and-its-enemies/

===========================

From National Review Online
May 4, 2009

Global Kohordinates

Meet the radical transnationalist preparing to take up residency at State

By Andrew McCarthy

http://nrd.nationalreview.com/article/?q=N2NjNWNmODQ0YzhmNzY0Yzc2ZTY4YTVmMGJmNDY1Yzg=

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From National Review Online
April 28, 2009

Koh Fails the Democracy Test

Consent of the governed? Or rule by international wisemen?

By John Fonte

. . . At the end of the day, the argument over the transnational legal process is one part of a larger argument that will come to dominate the 21st century: Who governs?

Will Americans continue to decide for themselves public policies related to national security, human rights, immigration, free speech, terrorism, the environment, trade, commercial regulation, abortion, gay rights, and family issues — or will questions be decided by “transnational issue networks” working with “transnational norm entrepreneurs,” “governmental norm sponsors,” and “interpretive communities,” with the complicity of American judges?

— John Fonte is a senior fellow at the Hudson Institute. His book Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? will be published by Encounter Books in 2010.

© National Review Online 2009. All Rights Reserved.

http://article.nationalreview.com/?q=ZWZkMGM0M2JjNmY5N2RjNjBkMTBlNzFlMjI4N2NkOGE=

=================================

The New Ledger
April 23, 2009

Harold Koh and the End of Human Rights

By Ted Bromund

Ted R. Bromund is the Senior Research Fellow at the Margaret Thatcher Center for Freedom and a frequent contributor to Commentary.
TNL

©2009 THE NEW LEDGER PUBLISHING COMPANY, LLC. All rights reserved.

http://newledger.com/2009/04/harold-koh-and-the-end-of-human-rights/

============================

From National Review Online's "The Corner" Weblog
April 4, 2009

Response to Ted Olson's Endorsement of Harold Koh

By Andy McCarthy

My respect and admiration for Ted Olson know no bounds. But I think his endorsement of Yale Law School Dean Harold Koh for the job of State Department legal adviser significantly misses the point of the good-faith opposition to Koh. Therefore, it merits a response. . . .

So when it gets down to the only thing Koh's opposition is actually concerned about, the specific policy positions Koh has taken (e.g., on using foreign law to interpret — and radically alter — provisions of the U.S. Constitution), Ted won't address it. To say that Koh is "very involved in the subject of international law" is beside the point — what is the likelihood that a president would nominate as State Department legal adviser a lawyer who was not very involved in the subject of international law?

The germane question is: In the course of that deep involvement, what views has he developed and what positions has he taken? It's inevitable that the State Department and the administration will soon be confronted with questions like, "What will be the effect on our national security if we push ratification of the Law of Sea Treaty — which provides for disputes to be resolved by a mini-U.N. with its own mini-World Court?" I would think most people take as a given that Dean Koh, as an accomplished international law scholar, is steeped in the relevant issues. The only thing that matters is where he stands on them and what advice he is likely to give . . .

--Posted 04/04/2009 09:07

© National Review Online 2009. All Rights Reserved.

http://corner.nationalreview.com/post/?q=ZDYwNjIxOTA3ZDg5ZTk2MGIxZGI0YjlkODllYjhhODA=