Earlier today there was a conference call with some of the best conservative minds/activisists, as well as bloggers that discussed the nomination of Harold Koh and his true legal background and ways to stop his confirmation.

Who is Harold Koh?
Harold Koh is the former Dean of Yale Law School. He was nominated by Barack Obama on March 23 to serve in the position of Legal Advisor to the State Department.

Why is the position of legal advisor to the State Department important?
The Legal Adviser position is, due to its international scope, unlike other legal positions in the federal government. He “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 will be involved in drafting U.N. Security Council resolutions.

What is the process that Harold Koh must go through in order to become the legal advisor to the State Department?

Koh has been through his confirmation hearing (April 28) and was successfully voted on at the Senate Committee on Foreign Affairs (May 12), but has not yet been confirmed by the full U.S. Senate. A floor debate and vote is expected to take place in early to mid June, after Congress returns from the Memorial Day recess.

Why are some people concerned about this nomination?
Here are a few representative legal opinions held by Koh regarding international law:

That the congressionally authorized 2003 U.S. invasion of Iraq “violate[d] international law” because the U.S. had not received “explicit United Nations authorization” (“A Better Way To Deal With Iraq,” Hartford Courant, October 20, 2002);
That pursuant to the Vienna Convention on Consular Relations the decisions of the International Court of Justice in The Hague, Netherlands, trump the legal rulings and decisions of domestic state criminal courts (Brief of Former United States Diplomats as Amicus Curiae in Support of Petitioner Jose Ernesto Medellin, Case No. 06-984 in the U.S. Supreme Court, Medellin v. The State of Texas, June 28, 2007);
That the decisions of the U.S. Supreme Court should “tip more decisively toward a transnationalist jurisprudence” (“On American Exceptionalism,” Stanford Law Review, Vol. 55, No. 5, p. 1525, May 2003);
That the U.S. should ratify the Rome Statute on the International Criminal Court, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child regardless of the implications for American sovereignty and federalism (Change for America; A Progressive Blueprint for the 44th President, p. 497, New York, 2009); and,
That America is such a major violator of international law that it belongs in an “axis of disobedience” with nations such as North Korea and Saddam Hussein’s Iraq (“Transnational Legal Process After September 11th,” Berkeley Journal of International Law, Vol. 22, p. 337, 2004).

Another website that provides great insight into Koh’s transnationalism agenda is located here.

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Harold Koh, a former dean of Yale Law School, has been nominated by President Obama to be the State Department’s legal adviser. 

Harold Koh believes in foreign precedent as a way to set the rule of law in the United States.  He does not have a particular regard for the U.S. Constitution and has also considered a place for Sharia Law.  He is a true believer of what he deems the “transnational legal process,” believing that the differences and disparities between U.S. law and International law should disappear. 

Obama is also considering him as a possible U.S. Supreme Court appointee in the coming years.  He would replace Ruth Bader Ginsberg nicely, since she is a progressive much like Harold Koh.  However, Koh goes a little further than even Ginsberg and is a little more radical than she due to his beliefs in Sharia Law.

He also values the opinions of the world’s imams. A New York lawyer, Steven Stein, says Koh in 2007 told the Yale Club of Greenwich that “in an appropriate case, he didn’t see any reason why Shariah law would not be applied to govern a case in the United States.”

Koh thinks America is the bad guy on the world stage. He blasted Operation Desert Storm as a violation of international law despite the U.N.’s blessing. He supported the Sandinista move to get the International Criminal Court to force Congress to cut off funding of the Contras in Nicaragua.

In 2004, after Operation Iraqi Freedom had begun, Koh lumped the U.S. in with North Korea as part of an “axis of disobedience” regarding international law.

Koh says the Supreme Court is now divided between “nationalist” judges who believe our Constitution is the only one that counts and “transnationalists” who believe “we the people” should be changed to “we are the world.”

Here’s a small snapshot of his other stances and legal tendencies:

Koh believes laws of places like Zimbabwe and Sri Lanka should carry equal weight with the laws of Virginia and South Dakota, and that it’s “appropriate for the Supreme Court to construe our Constitution in the light of foreign and international law” in its decisions.

He also believes foreign law trumps U.S. law on issues such as the death penalty. Echoing Ginsburg, he has said: “The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason (italics added), the death penalty should, in time, be declared in violation of the Eighth Amendment.”

In Lawrence v. Texas, which struck down that state’s anti-sodomy laws, Justice Anthony Kennedy’s majority opinion cited a 1967 British parliamentary vote repealing laws against homosexual acts and a 1981 European Court of Human Rights decision that such laws were in violation of the European Convention on Human Rights.

Agreeing with Kennedy, Koh himself filed an amicus brief in the case that argued that international and foreign court decisions compelled the Supreme Court to strike down the Texas law. Koh has also submitted an amicus brief to the Connecticut Supreme Court arguing that foreign precedents require recognition of a constitutional right to same-sex marriage.

This man will be advising Hillary Clinton as she travel abroad to negotiate and speak with international leaders, some of which are our enemies, and some our allies.  He could also be our next Supreme Court Justice…

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