Legal News

A Koh-ordinated Attack on Harold?

By Ashby Jones

When we flipped over to the Boston Globe’s Web site today, we’ll admit it, we got a little sidetracked by the tale of the 22 year old BU medical student charged in the so-called Craigslist killing, the writeup of the Boston Marathon, and Harvard’s new attempt to help its students deal with rejection.

But it was another story that sent our law-radar buzzing: this one, about Harold Koh, the former Yale Law dean poised to become the State Department’s top lawyer.

The Globe story focuses on the widespread opposition among conservatives to Koh’s appointment. The opposition appears to be growing as a key Senate subcommittee gets set to take up his nomination later this week.

Let us introduce you to a new phrase in international law (or at least one that’s new to us): “transnational juridsprudence.” In regard to Koh, it’s this theory that apparently has conservatives worried.

“Harold Koh has a reputation as being the leading scholar on transnationalist jurisprudence,” said Robert Alt, deputy director of legal and judicial studies at the Heritage Foundation, a conservative think tank. “Particularly among conservatives, that school of thought is disturbing insofar as it seems to suggest transnational law trumps constitutional rights, and thereby may be a threat to American sovereignty.”

In other words, if Koh becomes the chief legal adviser to American diplomats, he would give undue influence to foreign legal opinions, perhaps limiting American options in matters of national security.

Indeed, as the Globe chronicles, Koh has repeatedly contended that such activities as “helping forge international agreements, participating in the United Nations, and supporting international war crime tribunals are in the best interests of the United States.”

“When I came to the government, the first conclusion I reached was that the rule of law should be on the US side. That’s a system of [international] law that we helped to create,” Koh said in a 2003 appearance at the University of California at Berkeley. “So that’s why we support various systems of international adjudication. That’s why we support the UN system. We need these institutions, even if they cut our own sovereignty a little bit.”

According to this post, by AmLaw’s Andrew Longstreth, Koh is scaring even such relative moderates as Stuart Taylor and Evan Thomas. In this recent Newsweek article, the pair wrote: “If taken to their logical extreme,” Koh’s views, “could erode American democracy and sovereignty.”

Longstreth points out, however, that both Gibson Dunn’s Ted Olson and John Bellinger, who served under George W. Bush in the same position that Koh’s been nominated for, have thrown their weight behind Koh.

Full post as published by Law Blog - WSJ.com on April 21, 2009 (boomark / email).