Koh State Department Nomination Update and Anupam Chander Guest Post

Koh State Department Nomination Update and Anupam Chander Guest Post

Following-up on my post on Harold Koh’s nomination, in the first part of this post I round-up some links to new stories and blog posts on Koh’s nomination. Moreover, after the “continue reading” jump there is a guest post from Prof. Anupam Chander of the University of California, Davis (currently visiting at the University of Chicago).

In the last day or so, a variety of news outlets have picked-up the story of the reaction to the anti-Koh spin of some right-wing blogs and media outlets. In particular, Dahlia Lithwick has an analysis at Slate of the anti-Koh rhetoric from the far Right. The New York Times has picked-up the story, writing:

“Once we sign our rights over to international law, the Constitution is officially dead,” the Fox News commentator Glenn Beck bemoaned Monday in a scathing critique of Mr. Koh.

Unfortunately for Mr. Koh’s critics, his academic record does not fit into quite so neat a sound bite, and his supporters have been quick to rally to his defense.

“This is all just an attempt to whip up hysteria,” said Pamela S. Karlan, a professor at Stanford Law School who was one of 11 prominent law professors who sent a letter to Congress on Wednesday in support of President Obama’s announcement last month that he planned to nominate Mr. Koh as the legal adviser to the State Department.

Despite the attacks, there was no sign in the Senate that Mr. Koh’s nomination was in jeopardy, and the White House stood firmly behind the pick.

Reid Cherlin, a spokesman for the White House, called the attacks on Mr. Koh “a gross mischaracterization” and said that “you have political opponents of the president who are motivated by their opposition to his agenda who are mischaracterizing or fabricating statements by Dean Koh.”

At the center of the dispute is a statement that Mr. Koh was said to have made in 2007 at a Yale alumni event in Greenwich, Conn. One guest at the event wrote in a blog item on a conservative Web site at the time that Mr. Koh had made a “favorable reference” to Shariah, or Islamic law, and had said it could be used to “govern a controversy” in an American court.

Conservative commentators like Mr. Beck and Web sites like Jihad Watch quickly focused on the alleged statement after The New York Post carried an article featuring it.

But Robin Reeves Zorthian, who organized the Yale event in Greenwich, said Mr. Stein “was totally mischaracterizing what Dean Koh said.” Ms. Zorthian said Mr. Stein had initiated an animated series of questions with Mr. Koh about international law and raised the issue of Shariah and its place in American law. She said Mr. Koh had said that there were “common underlying concepts” in many legal systems around the world but that he never voiced support for allowing Shariah to be used in American courts.

It is good to see a news outlet actually try to find out what was said. That “anecdote” about using shari’a law in the U.S. is racing all over the right-wing blogosphere with nothing to back it up. The Times also quoted our own Deborah Pearlstein:

“You can’t attack this guy on his qualifications,” said Deborah Pearlstein, a scholar on international law at the Woodrow Wilson Institute who has worked with Mr. Koh on human rights issues.

“I hate to see the blogosphere drive questions about this nominee,” Ms. Pearlstein said. “There are legitimate areas of debate on matters of international law, but whether or not he would impose Shariah law in the United States is not one of them.”

Besides these news stories, there have also been various further reactions in the blogosphere to the anti-Koh rhetoric.  Brandt Goldstein has an essay at the Huffington Post in favor of the Koh nomination. Austen Parrish has a short piece at Prawfsblawg. And I already mentioned Beth Van Schaack’s post over at IntLawGrrls (where she puts an end to that weird Mother’s Day rumor).

In addition, Anupam Chander has sent in a guest post on the Koh nomination. Prof. Chander teaches at the University of California-Davis, School of Law, and is currently a Visiting Professor at the University of Chicago Law School. Following is his post, which can also be seen at his blog


Dean Harold Koh’s Nomination to the State Department
by Anupam Chander

President Obama has nominated Dean Harold Koh of Yale Law School to serve as the Legal Advisor to the State Department. The Legal Advisor is the nation’s top international lawyer, advising the Secretary of State on the legal aspects of international engagements, on international security law, international labor law, and human rights law.

It is hard to imagine a person more qualified to fill the position. Dean Koh clerked on the D.C. Circuit and on the Supreme Court. He practiced law at Covington and Burling. He served in the Reagan Administration as an Attorney-Advisor in the Office of Legal Counsel, and then returned to serve as Assistant Secretary of State for Democracy, Human Rights, and Labor in the Clinton Administration. He is a summa cum laude graduate of Harvard College, a Marshall Scholar at Oxford, and a graduate (like President Obama) of Harvard Law School. He has written extensively on human rights (including the rights of persons with intellectual disabilities), democracy, and international business transactions. This last subject will prove especially helpful as we grapple with our global financial crisis. Perhaps even more important than these academic credentials are his strength of character and commitment to the law. In the early 1990s, he led the struggle against the detention of Haitian refugees, including individuals with HIV, in Guantanamo (see Brandt Goldstein’s superb book, Storming the Court).

Dean Koh’s nomination has come under strident attack from right wing editorialists and bloggers, such as those for the National Review. This is hardly surprising. Dean Koh after all represents the polar opposite of their views. These are the folks who argued strenuously for the Imperial Presidency, for a president who can run foreign policy without any oversight from the coordinate branches, even imprisoning and torturing as he sees fit. In denouncing Koh, the National Review characteristically commends instead the views of John Bolton, who famously alienated the rest of the world as America’s top diplomat.

Dean Koh’s book the National Security Constitution showed that the Constitution requires checks and balances in foreign affairs, not in domestic affairs alone; the executive-can’t-be-bothered-by-the-other-branches types would white out parts of the Constitution; consider the Treaty Clause, the Supremacy Clause, the War Powers Clause, the power to raise Armies, to offer just a few examples.

Some detractors mistakenly claim that Dean Koh would sacrifice the U.S. Constitution to international law. Dean Koh has always sought to further the U.S. Constitution. Consider that document’s own words, in a sentence that has come to be known as the Supremacy Clause:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”

The very first sentence of the Declaration of Independence pays “decent respect to the opinions of mankind.” From 1776 and through much of our history, we were not the unilateralist, go-it-alone types, indifferent to world opinion, relying only on coalitions of the coerced and bribed. Instead, we were the ones who have built up the international institutions that exist today. These institutions are now engaged in peace-keeping, managing refugee populations, and immunizing children against preventable illnesses. In my article, Globalization and Distrust, published in the Yale Law Journal, I demonstrate that international law operates through (and consistently with) national democratic processes, permitting review, revision, and rejection through such processes. Indeed, international law and coordination will be even more necessary as we grapple with the problems of our increasingly globalized world.

As President Obama travels to London to seek help in pulling the world out of an economic tailspin and in regulating global finance, the value of global cooperation seems self-evident.

Dean Koh has the intelligence, wisdom, and courage for us to rely upon him for advice as to America’s legal engagements with the world.

The fact that his nomination has drawn such a sharp response from the zealots who have wrecked America’s standing in the world, justified torture, and waged war recklessly only further confirms the wisdom of the choice.

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Noah Novogrodsky
Noah Novogrodsky

I would think that the 2006 NYTimes account of Koh’s debate with the former Taliban member who enrolled at Yale would end the sharia debate.