Pro Koh [UPDATED]

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 analysis, 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, Clyne refers to Koh “attacking the 1991 operation to liberate Kuwait.” Actually, the specific quote she mentions wasn’t about Operation Desert Storm itself, but rather an argument in favor of Congressional participation in decisions to go to war. A quick search on Westlaw and you can find Koh citing approvingly to Desert Storm as an example of multilateralism’s resurgence (20 Yale Journal Int’l Law ix (1995)). And then there is this assessment by Koh on the run-up to Desert Storm:

[B]oth the executive and legislative branches engaged in lengthy intrabranch deliberation before ultimately committing to war, an interbranch dialogue ensued that culminated in the congressional resolution authorizing use of force in Iraq, and the episode helped delineate an important institutional precedent which has served as a touchstone for subsequent deliberations. (50 U. Miami Law rev 1, 8 (1995))

Hmmmm… that sure doesn’t sound like someone who is “attacking” the operation to liberate Kuwait.

But wait… Clyne (thinks she) has more evidence of Koh being a “radical”: He likes Sandinistas! She writes:

Koh has also praised the Nicaraguan Sandinistas’ use in the 1980s of the International Court of Justice to get Congress to stop funding the Contras. Imagine such international lawyering by rogue nations like Iran, Syria, North Korea and Venezuela today, and you can see the danger in Koh’s theories.

Once again, a quick search on Westlaw turns up the following quote from Koh:

In 1984 the Nicaraguan Government filed a suit against the U.S. Government in the International Court of Justice in The Hague. Many people assumed that this was just a publicity stunt, one that could have no conceivable impact on the United States. They did not appreciate that Nicaragua was not so much seeking an international judgment as it was seeking to enforce transnational legal process against a more powerful adversary. By suing in this intergovernmental forum, and triggering an interaction, Nicaragua pursued the goal of obtaining a judicial interpretation that the United States was violating international law, an interpretation that it then hoped to internalize into U.S. domestic law. Nicaragua won a so-called “provisional measures” order from the ICJ, but instead of seeking enforcement, the Nicaraguans went to the U.S. Congress, where then-Senator Daniel Patrick Moynihan introduced a resolution that terminated future aid to the Contras for any actions that violated the ICJ ruling. In response, the Reagan administration stopped mining the harbors almost immediately. So, in my view, what happened here was a different kind of appeal, not an appeal to judicial process but to a transnational legal process, in which the Nicaraguans triggered an interaction, which led to an international legal interpretation, which was ultimately internalized into U.S. funding statutes, or domestic law. By invoking this process, a relatively powerless nation forced the most powerful nation of the world, the United States, into obedience with international law. (22 Berkeley Journal Int’l Law 337, 340-41 (2004) citations omitted)

Koh isn’t cheering-on Nicaragua. He is giving an example of the process by which international norms come into domestic political and legal discussions. This is simply an analysis of the interplay of legal institutions and politics. Let me state the obvious: it is a good and important thing for the top lawyer at the State Department to understand the complex interplay of law and policy, both domestic and international. Ignoring it doesn’t make it go away. And, by the way, perhaps the Nicaragua case figures prominently in the development of his theory of transnational legal process because, if one looks at Koh’s CV, one would realize that he was a U.S. government lawyer in the Department of Justice’s Office of Legal Counsel when the case was being litigated at the ICJ. I believe he actually took part in the US’s representation, but I haven’t confirmed that. 

Although I am annoyed by Clyne’s quick-and-dirty reworking of Koh’s positions, she seems enraged by any suggestion that international norms may affect decision-making by judges, Congress, or other members of the US government. She writes:

Koh believes that the UN Convention on the Rights of the Child — a problematic document that we haven’t ratified — should dictate the age at which individual US states can execute criminals. Got that? On issues ranging from affirmative action to the interrogation of terrorists, what the rest of the world says, goes.

Well, here I can help her along. Here’s a pretty crazy quote on just that issue:

It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

But that wasn’t written by Koh. It was written by that Sandinista-loving radical, Reagan-appointee Justice Anthony Kennedy in the case Roper v. Simmons which (and someone should tell Clyne this) found the juvenile death penalty to be unconstitutional.

But, more importantly, it highlights a point that seems to be lost on Clyne and her ilk. Neither Koh, nor anyone else I know of says that foreign norms “dictate” anything in the US. Foreign law, as Justice Kennedy explained, can be used as persuasive evidence or, as Justice Breyer put it in a speech at the ASIL, there is “enormous value in any discipline of trying to learn from the similar experience of others.” That’s it. Nothing nefarious. No black helicopters or anything. Justices cite to law review articles, social science studies, and even Gilbert and Sullivan. Sometimes, they may note the experiences of judges in other countries and learn from them. Citing to foreign law is not allowing the world to dictate to the US; it is simple intellectual honesty.

Beyond that, there is international law—the obligations to which the United States has chosen to be bound. And Koh has made a point of saying we should honor our obligations. If that’s something people want to contest, I say, let them. I would like to hear someone explain why we should not honor the commitments we have made.

But what’s at play here is not a reasoned, careful discussion of Koh’s views. It’s a drive-by on someone’s reputation. For Clyne, Koh isn’t a person whose arguments need to be honestly assessed, in her words he “is a key test case in the “judicial wars.””

And, in war, the first casualty is the truth.

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