Catherine Powell at HuffPo on Koh and Customary International Law

by Chris Borgen

Catherine Powell has an essay at Huffington Post responding to those criticizing Harold Koh for his views on customary international law. She writes:

Harold Koh’s position that customary international law is a form of federal common law reflects the conventional view since the founding of the nation. For over 200 years, Congress, the courts, and the Executive Branch have recognized that each branch has authority to observe customary international law (or, the law of nations) as part of federal law. Such customary norms include basic rules governing international business transactions, forms of immunity, and the treatment of POWs. They are well-established norms that are so widely shared that they attain the status of custom.

Courts perform common law adjudication simply to resolve ambiguities or gaps in the law. In the area of international law, this federal common law making power has survived over the years because customary international law involves unique and distinctive national foreign policy interests, including the United States’ relationships with other nations, which, of course, is reserved to the federal government.

A little further on, she responds to the concern that customary international law is anti-democratic:

Indeed, customary international law bears the hallmark of democratic legitimacy. The U.S. is a key participant in the consensus-building process inherent in the creation of customary norms. Thus, these legal norms are fashioned with the input of U.S. elected and appointed officials, who represent and answer to their constituents at home. As Dean Koh acknowledges, Congress may override a customary international law norm where Congress’s intent is clear, thereby addressing any concern regarding democratic oversight.

Across party lines, the Executive Branch has provided ongoing support for this time-honored conception of customary international law. During the Nixon Administration, the Carter Administration, and the Clinton Administration, the United States has filed amicus briefs embracing the bi-partisan perspective that customary international law is enforceable federal law. This well-established formulation of customary international law has shaped judicial precedent and federal policy since our nation’s founding. While one of the torture memos issued under George W. Bush called some of these basic tenants into question, this memo was later repudiated even by the Bush Administration.

This should give you a sense how far outside the mainstream Koh’s critics are!

Indeed, during his time in office, President Bush’s own Legal Advisor, John Bellinger, embraced the more conventional view shared by Dean Koh.

Her whole post is well worth the read.

O’Connell’s “Who’s Afraid of International Law?” and the Koh Nomination

by Chris Borgen

Mary Ellen O’Connell (whose recent book The Power and the Purpose of International Law was the subject of one of our book discussions) has a post at Balkinization called “Who’s Afraid of International Law?” that considers the fear-mongering by some in the media concerning international law.   After briefly discussing the views of the Founders,  she writes:

So why does Glen Beck seem to fear international law? Why is he and decrying strong international lawyers in America’s top international law jobs? As with so many things we fear, the critics seem to be speaking against something they do not understand. At times they appear to be confusing international law with communism or other ideologies against which Americans have had to struggle in war and peace.

International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.

I think the point that international law is not an ideology but simply the obligations to which we are bound is a point worthy of emphasis. One of the reasons the debate over the Koh nomination is so important is because it is shaping public opinion not only about Koh but also about international law itself. And the problem is that, from the fevered ramblings of Glenn Beck to the calmer insinuations of Ed Whelan, there’s a good deal of misinformation being bandied about. Unfortunately, this may be the first time many of their readers or listeners hear about “customary international law” or “transnational legal process” (and, in any case, neither Beck nor Whelan call it that, but turn it into an ideological “-ism”: transnationalism).

There will be plenty to say in the coming days on the specific substantive points of the debate. For now, I just was struck by this observation that arguments that “international law is part of our law” (to quote the Supreme Court) are being spun by the punditocracy to seem radical and against our Constitutional traditions.

However, in regards to the Koh nomination, I am heartened by the push-back in the blogosphere (such as: 1, 2, 3, 4, 5, 6, 7), by conservative students at Yale, and also by prominent officials from across party lines. A few days ago, Ted Olson defended Koh from the right-wing criticism. A letter in support of the Koh nomination that has been recently delivered to the Senate Foreign Relations Committee includes signatories such as former Republican State Department Legal Advisers John Bellinger, William Taft, and Davis Robinson as well as former Democratic Legal Advisers David Andrews, Conrad Harper, Roberts Owen and Herbert Hansell. If I had to throw in my lot with Glenn Beck and Ed Whelan or with this list of signatories, I would choose the latter. (And I did, and signed the letter of endorsement as well.)

I hope Glenn Beck doesn’t start crying again.

[Note: post slightly updated to include some more links.]

Response to Ed Whelan Regarding Koh Nomination

by Laura Dickinson

Ed Whelan responds to my post mostly through name-calling, labeling me an incoherent, liberal academic. Yet, no amount of ad hominem attack can obscure the basic weakness of his argument. He continues to worry that international elites will subvert the will of democratically elected leaders in the executive and legislative branches. But who exactly are these international elites and how does Whelan think this subverting will be done?

At one point, Whelan seems to focus on academics and NGOs as his elite culprits, picturing them imposing customary international law on an unwilling democratic majority. But that is simply a red herring. After all, academics and NGOs have no power to create law on their own. They can only make arguments that it would be in the best interest of the United States to follow certain international norms. And to whom do they make such arguments? Well, to the extent that the arguments are made to the legislative or executive branches, then clearly the international law argument is not subverting the democratic political process; it is part of that process.

Therefore Whelan must really be focused only on the specter of so-called “transnationalist” judges overturning the will of democratically elected leaders. But this concern is also without foundation. After all, when interpreting constitutional provisions, not a single sitting U.S. Supreme Court justice has taken the position that international or foreign law constitutes binding authority. As to concerns about customary international law, there are, as Whelan points out, hundreds of pages of academic debate on the precise nuances of how customary international law and federal common law interact, but the key point is that Koh’s position on this question is firmly within the mainstream of legal thought. Indeed, courts perform common law adjudication all the time to resolve ambiguities or lacunae in the law, and when they do, they frequently consult treatises or other materials. To claim that doing so somehow means that judges are subverting democratic processes is at best hyperbole and at worst distortion. Indeed, most of Whelan’s arguments seem to be equally applicable to all forms of judicial review, but if Whelan is opposed to judicial review, then it is Whelan who is the extremist, seeking to turn back the clock hundreds of years on matters that have been settled in this country since the founding era. And that’s an argument that has nothing to do with international law at all.

Most fundamentally, Whelan ignores the core point of my post, which is simply that Harold Hongju Koh is a mainstream scholar and lawyer who has won praise from Democrats and Republicans alike and who has even-handedly served in Democratic and Republican administrations. Whoever the “transnationlist elites” may be that Whelan’s fevered imagination pictures taking over the world, Koh is simply not one of them.

State Department Legal Adviser Nominee Harold Hongju Koh Holds Mainstream Legal Views

by Laura Dickinson

[ Laura Dickinson is Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

Recent attempts to criticize Harold Hongju Koh’s appointment to be the Legal Adviser at the U.S. Department of State have gone from silly to absurd. Koh, currently the Dean and the Gerard C. and Bernice Latrobe Smith Professor at Yale Law School, is one of the nation’s leading lawyers and scholars, and his ideas fit firmly within the mainstream legal tradition in the United States. He has served with distinction in both Republican and Democratic administrations, first in the Office of Legal Counsel during the presidency of Ronald Reagan and second as the Assistant Secretary of State for Democracy, Human Rights, and Labor under President Bill Clinton – a position in which, having been confirmed unanimously by the U.S. Senate, he received praise from Democrats and Republicans alike. (Not only had I been his student, but I had served as policy adviser for Koh when he held this position.) He clerked for two judges appointed by Republican Presidents, Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. He has argued before the U.S. Supreme Court and testified in Congress more than thirty times. And he has authored or co-authored eight books and more than 150 articles, has won more than thirty awards for his litigation, and has earned two life-time achievement awards (from the American Bar Association and Columbia Law School) before reaching the age of 45. Moreover, he has sued both democratic and republican administrations — and has advanced the cause of Cuban refugees fleeing Fidel Castro’s regime. Conservative students and Federalist Society members from Yale Law School support his candidacy.

Thus, when far-right bloggers tried to smear Koh by spreading a patently false rumor, that Koh wanted Islamic law to govern cases in U.S. courts, it would have been laughable had Fox News not picked up the story. Fortunately, the organizer of the event where Koh purportedly made the comment has flatly stated that Koh said no such thing.

More recent efforts to tarnish Koh by arguing that his “transnationalist legal views threaten fundamental American principles of representative government,” a position argued by Ed Whelan at the National Review Online, are equally absurd.

Koh’s transnationalist legal perspective does no such thing. It is a simple recognition of our legal interdependence with the rest of the world–traditional, not novel; not a surrender of sovereignty but a recognition that we must engage diplomatically to assert our interests. Indeed, even the conservative law professor Eric Posner has acknowledged that the core ideas behind Koh’s transnationalist legal perspective are so mainstream as to be even bland:

When the president ratifies a treaty with senate consent, the treaty becomes a part of American law; if the treaty is self-executing, courts will enforce its provisions. Congress can also adopt international law by statute. Common law courts, including federal courts using their limited common law powers, are free to draw on international and foreign law for inspiration, and often do. And federal courts sometimes rely on norms of international law for the purpose of interpreting ambiguous statutes and . . . constitutional provisions such as the eighth amendment. The observation that courts do these things is not controversial.

Thus, when Koh argued in an amicus brief to the U.S. Supreme Court that it might consider foreign and international law and practice in deciding whether the eighth amendment of the Constitution’s ban on cruel and unusual punishment prohibits the execution of children, senior diplomats from both Republican and Democratic administrations joined him on the brief. Koh did not contend that foreign and international law was controlling, but rather merely relevant – one source among many that the Court could consider – a position the Court agreed with.

Indeed, Koh’s transnationalist legal perspective does not in any respect hold that international or foreign law binds us contrary to our interests; it only suggests that it may often actually be in our interest, as the Declaration of Independence asserts, to “pay a decent respect to the opinions of mankind.” Koh’s transnationalist legal perspective merely admits the possibility that how we act in the world (and the interests we are able to achieve) may be affected by how we are seen by others. Nothing particularly controversial is contained in such a position.

Ed Whelan has argued that Koh’s approach to transnational legal process would allow “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” This is clearly incorrect. Koh’s book, The National Security Constitution, is all about how Congress and the executive branch both have an important role to play in pursuing national security issues. Thus, Koh’s vision of how national security matters should be debated actually gives more power to Congress – something Republican senators should want – than the Bush Administration’s policy of executive branch supremacy.

In short, nothing in Koh’s background or views warrants the extreme and wrong-headed criticism he is receiving. All fair-minded citizens should resist these transparently partisan efforts to denigrate one of the country’s most distinguished public servants.

For other information on the nomination, see commentary by Chris Borgen, Anupam Chander, Dahlia Lithwick, Beth Van Schaack, and Kenji Yoshino.

Eric Posner on the Koh Nomination

by Kenneth Anderson

Over at Volokh, Eric Posner has a very interesting post today on the Koh nomination.  Here is a snippet:


Foreign-law opponents, take heart! Koh is not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law serves as a handy vehicle, to be used or ignored to the extent necessary to reach this goal. Obama is certainly entitled to have a mainstream liberal lawyer like Koh in his government. In case you haven’t noticed, Koh won’t be the only one.

For my part, I wish I were wrong, and that Koh’s tenure would be a real test of legal cosmopolitanism, properly understood. I would love to be a fly on the wall when Koh explains to Hillary Clinton that customary international law prohibits the death penalty, and accordingly the United States has a legal obligation to eliminate the death penalty and should urge places like China to do the same. I would expect that Koh would soon find himself negotiating embassy lease agreements in Burkina Faso. But Koh will not be so rash. In his writings, Koh has been careful to leave this final evolution of the customary international law on capital punishment to the undefined future, a mark of prudence that should serve him well in government.

I agree with Eric about this, and also what he says in the rest of that post.  The whole thing is worth reading.  In general, I find the Obama administration’s foreign policy to be shifting, sometimes abruptly, back and forth between liberal internationalism and what I have called the ‘new liberal realism’.  Dean Koh exemplifies the former, while Hillary Clinton’s brusque de-coupling of human rights from relations with America’s once-and-future creditor, China, exemplifies the latter, and it is hard to tell in these early days where it finally balances.

Koh State Department Nomination Update and Anupam Chander Guest Post

by Chris Borgen

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 the “continue reading” jump is his post, which can also be seen at his blog


by Chris Borgen

I was very happy to hear last week the news that Dean Harold Koh of Yale, someone I have known for many years and whom I greatly admire, was being nominated to head the State Department’s Office of the Legal Adviser. It’s one of those picks that just makes sense: Koh is widely respected in the legal profession (among lawyers with a wide variety of views), he holds a post that is at the pinnacle of legal academia, he has significant government experience from being an Assistant Secretary of State in the Clinton Administration and in OLC during the Reagan Administration, and so on and so forth.

Of course this doesn’t stop someone from trying to start some negative spin (in this case in Rupert Murdoch’s New York Post). I am not going to waste my time or yours with a sentence by sentence refutation of Meghan Clyne’s broadside. Above the Law does a quick and funny response, in any case.

But there is something here that, beyond being irksome, is sad. Clyne’s piece shows how quickly partisans move from honest analysis– or even good faith refutation—and instead go for the cheap shots and the character assassination. Besides flinging mud at someone’s reputation, it also muddies the waters concerning the substantive issues of international law.

For example…

UPDATE: Over at IntLawGrrls, Beth Van Schaack does a great job separating fact from fallacy in the Koh confirmation process.