Ten Questions for Legal Advisor-Nominee Harold Hongju Koh

I have tried to stay quiet in the ongoing “Koh Wars” in the blogosphere, where Ed Whelan seems to be taking on the entire legal academic blogosphere himself and getting in a bad mood about it.  I am also conflicted. I am a former student of Professor Koh and I have always admired his energy, passion, and his willingness to state his views openly and clearly.   Unlike some other Obama nominees, I’m sure Koh pays all of his taxes..  And he is, as Ted Olson says, a really brilliant lawyer.   But the standard for Senate consent ought to be a little bit more than compliance with the Internal Revenue Code and being a really smart lawyer. 

If, as I do, one disagrees with Koh on many of the things he says about international law, then one might oppose his nomination.  So I don’t believe it is fair for Koh defenders to dismiss criticism of Koh’s substantive legal views.  Koh loves to engage in the public debate and I don’t think he would hold back from attacking, say, Harvard law professor Jack Goldsmith’s substantive legal views if Goldsmith was nominated one day to the same position.

I am sure that Koh will be confirmed eventually (perhaps once Al Franken is finally sworn in?).  But I do think it is important for the Senators to ask him about questions of legal policy that may come within his purview.  With a Democratic Congress, and a strongly Democratic Senate, Koh could make serious waves from his post at L.  So questions should be asked, and a debate about his views is necessary and hopefully illuminating.  So here goes (I’ll provide my answers and my guesses about his answers in a later post):   

1)  The Senate may consider three important treaties in the near future:  The UN Convention on the Law of the Sea, the Convention for the Elimination of Discrimination Against Women, and the Convention on the Rights of the Child.  Do you believe that it is legal and appropriate for the U.S. government to attach statements of “non-self-execution” to these treaties such as those that were attached to the International Convention on Civil and Political Rights? Would you be willing to defend the domestic legality of such provisions in U.S. litigation? 

2)  You have argued in your writings that transnational legal processes can and should be used to develop and eventually “bring international law home” to have binding force within the U.S. legal system.  Do you think it is appropriate as Legal Advisor to support such efforts to use litigation to incorporate international legal norms within U.S. law? 

3)  The U.S. government has filed statements of interest on behalf of foreign governments, such as Indonesia and South Africa, objecting to the lawsuits brought against them or against multinational corporations who allegedly were complicit in their human rights abuses.  Do you approve of the use of such statements, such as the ones that were filed by the Legal Advisor on behalf of South Africa?  What binding force do you think they should have on the courts? What standards will you use to choose whether or not to recommend filing such a statement?

4)  You have written vigorously in defense of the view that customary international law has the status of federal common law within the U.S. legal system.  Do you therefore also believe that the President has the power to invoke CIL to preempt state law, as some scholars have suggested?

5)  You have argued for a “Constitutional Charming Betsy Canon” that would guide courts in the interpretation of the U.S. Constitution.  Does this mean that you believe courts should, whenever possible, interpret the Constitution to conform with international law and foreign law?   

6) One your predecessors, William Taft, argued that the 2003 invasion of Iraq was legal under international law and offered a number of legal opinions to that effect during his tenure.  Do you agree with his interpretation of international law governing the use of force in Iraq? 

7) According to newspaper reports, the U.S. government has been engaged in the use of covert military attacks in at least seven different countries, as part of the “global war on terrorism.”  These attacks have included missile attacks in Yemen, Syria, and Pakistan.  Such attacks, by U.S. Special Forces, were authorized by President Bush.  Do you believe these attacks are lawful, under U.S. and international law?

8 ) Do you believe the United States acted lawfully when it attacked Serbia during the 1999 Kosovo conflict despite the lack of any congressional authorization or authorization from the United Nations? 

9) To the extent that U.S. forces detain individuals associated or part of Al Qaeda, in Guantanamo or Afghanistan, do you believe that such individuals are entitled to the protection of international human rights law as well as, or instead of, the laws of war? 

10)   Recently, universal jurisdiction has been invoked in Spain to potentially prosecute six officials from the Bush administration for giving legal advice that allegedly sanctioned torture.  Universal jurisdiction has also been the basis for or potential prosecutions of Israeli officials involved in military operations in the Gaza Strip. Given your past advocacy of transnational legal processes and the invocation of universal jurisdiction  in the United States under the Alien Tort Statute, do you believe it is appropriate for Spain to open that investigation into U.S. officials?  At what point would it be appropriate for the United States to protest such an investigation?