Harold Koh nomination hearing today - If he is confirmed, the President and every Senator voting yes for him should be impeached

Koh Fails the Democracy Test
Consent of the governed? Or rule by international wisemen?

from The National Review
By John Fonte
April 28, 2009

Advocates of global governance advance their agenda through the “transnational legal process.” Harold Koh, former dean of the Yale Law School, who has been nominated by President Obama to be the legal adviser to the State Department, is a leading advocate of this “transnational legal process.” His confirmation hearing is today, Tuesday, April 28.

Dean Koh has written extensively — sometimes clearly, sometimes obtusely — on transnational law and the “transnational legal process.” In a rather clear paragraph in The American Prospect (September 20, 2004), Koh explains how the system works:

Transnational legal process encompasses the interactions of public and private actors — nation states, corporations, international organizations, and non-governmental organizations — in a variety of forums, to make, interpret, enforce, and ultimately internalize rules of international law. In my view, it is the key to understanding why nations obey international law. Under this view, those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, which generate legal interpretations, which can in turn be internalized into the domestic law of even resistant nation-states.

Koh says much the same thing in the Penn State International Law Journal (2006) — more abstractly, to be sure, but it is worth listening to his voice to begin to appreciate the tone of the global-governance debate in legal circles:

To understand how transnational law works, one must understand “Transnational Legal Process,” the transubstantive process in each of these issues areas [business, crime, immigration, refugees, human rights, environment, trade, terrorism] whereby [nation] states and other transnational private actors use the blend of domestic and international legal process to internalize international legal norms into domestic law. As I have argued elsewhere, key agents in promoting this process of internalization include transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, and interpretive communities. In this story, one of these agents triggers an interaction at the international level, works together with other agents of internalization to force an interpretation of the international legal norm in an interpretive forum, and then continues to work with those agents to persuade a resisting nation-state to internalize that interpretation into domestic law.

Koh notes that the crucial mechanism for incorporating these global norms that are “created” and “interpreted” in transnational forums into American constitutional law is the American judiciary. As Koh declares, “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.”

The global norms that are to be “internalized” into American law cover a wide range of policy areas, including matters of foreign policy, terrorism, internal security, commerce, environment, human rights, free speech, and social issues such as feminism, abortion, gay rights, and the status of children.

To ask the crucial questions of democratic theory: Who governs? Who decides?

For the advocates of global governance, the policy issues listed above are typically global problems that require global solutions. In this view, international judges, NGO activists, international lawyers, and the like operating in transnational forums such as the International Court of Justice, the International Criminal Court, and various U.N. agencies are the appropriate decision-makers.

For the advocates of liberal democracy, these issues should be decided through the democratic political process. In the United States, this would mean the elected representatives of the people: the Congress and president at the national level, state legislatures and governors at the state level, and city councils and mayors at the local level.

To be sure, the American judiciary should perform its constitutional role of interpreting the laws made by the political branches of American democracy. However, it is not appropriate for American courts to impose or “internalize” global norms, rules, or laws “created” at transnational forums by transnational actors who have no direct accountability to “We the People of the United States”; actors who not only are not elected by the American people, but who are, for the most part, not even citizens of the United States. It is not appropriate, that is, if one believes in liberal democracy.

But, of course, the “transnational legal process” articulated by Harold Koh and the politics of transnationalism generally are not democratic. They represent a new form of governance that I call “post-democratic.” To “make, interpret, [and] enforce” international law, “which can in turn be internalized into the domestic law of even resistant nation-states” (as Koh describes it), is to exercise governance. But do these transnational governors have the consent of the governed?

The transnational legal process fails the “government by the consent of the governed” test in two ways. First, the democratic branches of government, the elected representatives of the people, have no direct input either in writing the global laws in the first place, or even in consenting to their domestic internalization, as, for example, happens when the Senate ratifies a treaty or the Congress passes enabling legislation for a non-self-executing treaty.

Second, there is no democratic mechanism to repeal or change these international rules that are incorporated into U.S. law by this process. What if the American people decide that they object to these global norms and transnational laws that were imposed upon them without their consent (on, for example, the death penalty, internal security, immigration, family law, etc.)?

What if the American people at first approved, but later changed their minds on, some of these rules: How can these global norms, now part of international law and U.S. constitutional law, be repealed? Legislation to repeal the global norms could be deemed “unconstitutional.” In short, there are no democratic answers to these questions consistent with the transnational legal process, because it is not a democratic process.

At the end of the day, the argument over the transnational legal process is one part of a larger argument that will come to dominate the 21st century: Who governs?

Will Americans continue to decide for themselves public policies related to national security, human rights, immigration, free speech, terrorism, the environment, trade, commercial regulation, abortion, gay rights, and family issues — or will questions be decided by “transnational issue networks” working with “transnational norm entrepreneurs,” “governmental norm sponsors,” and “interpretive communities,” with the complicity of American judges?

— John Fonte is a senior fellow at the Hudson Institute. His book Sovereignty or Submission: Will Americans Rule Themselves or Be Ruled by Others? will be published by Encounter Books in 2010.
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A Real Enemy Of The State - A Transnationalist Brought To You By Barack Obama

I obviously expect Obama to appoint Democrats, Liberals and far Left Extremists, but you would hope that he wouldn't appoint an Enemy of the State. Well, he's done that. Meet Harold Koh, Mr. Anti-U.S. Constitution.

Look Harold, if you don't like the Constitution that's fine. You may think your destiny in life is to change it. Well, it's not. If our Great Country is going to stay Great, our Constitution must remain intact.

I don't care where, or how you developed your dislike for the Constitution. I don't care why you think international law should reign supreme. However, I do care that you would change our Constitution if allowed to. I also care that because you can't change our Constitution that you would try to subvert it by using international law to trump it.

Therefore, I'm going to go the unpopular route and tell you that if you really don't like our Constitution, then I would suggest you either shut-up, or better yet, just get the hell out of our country and go live in one that isn't based on our oppressive constitution.

The fact that we have our Constitution is the reason you're allowed to speak freely. However, I would expect that after Obama listens to all your free speech that he wouldn't want to appoint a traitor to the our Country and Constitution to serve in his administration. If he does, it would obviously suggest that he clearly agrees with what you say which then makes him also a traitor.
Rees

The Long Arm of the Law
A looming battle over the role foreign judges should play in U.S. courts.

By Stuart Taylor Jr. and Evan Thomas
from NEWSWEEK
Published Apr 18, 2009
From the magazine issue dated Apr 27, 2009

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because—taken to their logical extreme—they could erode American democracy and sovereignty.

Koh is "all about depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe's leftist elites," says Edward Whelan, a lawyer and head of the Ethics and Public Policy Center, a conservative Washington policy group. Whelan's tone is alarmist, but he raises legitimate questions. Koh is well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left. At his confirmation hearings, Koh, who is in "no comment" mode until then, will find himself defending some statements that irk centrists and conservatives.

In 2002, Koh asserted that the planned invasion of Iraq—which then-senator, now–Secretary of State Hillary Clinton supported—"would violate international law." That raises the interesting question of whether Koh, as the State Department's lawyer, would try to stop the unilateral use of force by the Obama administration—an armed intervention in, say, Pakistan that lacked U.N. backing.

In 2004, Koh asserted that President Bush (by invading Iraq and flouting the Geneva accords) had put the United States into an "axis of disobedience" to international law along with North Korea and Saddam Hussein's Iraq—thereby forfeiting the credibility needed to persuade other nations to obey the law. Adoption of his ideas could expose U.S. companies to multibillion-dollar liabilities merely for doing business in countries run by human-rights violators.

Would Koh argue that the United States should submit to the jurisdiction of the International Criminal Court, even if it means extraditing American officials to be tried as war criminals? Would he argue that a global-warming treaty not ratified by the United States was nonetheless legally binding? At his confirmation hearings (probably later this month), Congress will want to know. (A member of the Obama team who has studied Koh's work, but declined to be identified in advance of the hearings, insists that his ideas are more nuanced than isolated quotes might suggest, and that Koh knows how to make tough trade-offs between academic theories and national interest.)

Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations.

He has, for instance, pushed for a more expansive view of what constitutes "cruel and unusual punishment" under the Eighth Amendment. Koh's views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues. Indeed, the justices cited foreign and international laws as support for their 2003 decision in Lawrence v. Texas striking down a Texas law against gay sex, and their 2005 decision, Roper v. Simmons, overturning the death penalty for juveniles in murder cases. Justice Ruth Bader Ginsburg recently defended the practice of citing international and foreign judicial precedents in Supreme Court decisions, implying that they never make a difference in the outcome. "Why shouldn't we look at the wisdom of a judge from abroad with at least as much ease as we would read a law-review article written by a professor?" she asked.

But Koh would go much further. To show regard for "the opinions of mankind," he asserted in a 2002 law review article, the death penalty "should, in time, be declared unconstitutional." Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles").

In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.

It is perhaps too easy to protest that transnational law enthusiasts such as Koh want to transform the United States into Denmark. He is no Baltasar Garzón, the flamboyant, media-hungry Spanish magistrate who sought the extradition of Chile's Augusto Pinochet on charges that the Latin American strongman had Spaniards tortured and killed—and who is now weighing a possible case against some top Bush administration lawyers who gave advice clearing the way for the alleged torture of terror suspects. Koh believes in the slow and reasoned evolution of the law, not showy prosecutions. His parents came to America to flee an oppressive South Korean regime. His work in the Reagan Justice Department and as an assistant secretary of state in the Clinton administration aroused little controversy. Some prominent conservatives, including Bush's solicitor general, Ted Olson, support his nomination, praising his ability, if not his ideas. Normally, the Senate ratifies a president's subcabinet appointments unless they are off the wall. Koh is not.

Still, conservatives have a point that Koh and the other "transnationalists" are using their legal theories to advance a political agenda. The international legal norms they wish to inject into American law by and large reflect the values of Social Democratic Europe and liberal American academics. Koh is not suggesting, for instance, that American judges adapt Islamic law that discriminates against women. Koh's writings—especially when exaggerated—will add to charges from the right that Obama is a closet socialist. The president may have to answer whether he agrees with Koh's more provocative views.
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Just Say No to Harold Koh!

Obama is just flaunting his power now. He's decided he's going to damn well do what he wants and is challenging anyone to stop him.

Harold Koh isn't even border line acceptable for this position. It will be a travesty of justice, and also an assault on our justice system if his nomination is approved.

His nomination is finally getting some traction in the news. The Senators that vote to approve his nomination may be voting themselves right out of office. I believe the American people have had way too much of Obama shoving his extreme left, socialistic agenda down their throats. The American people are finally starting to pay attention. I believe that this time around, they will remember these things next time they enter the voting booth.
Rees

The Long Arm of the Law
A looming battle over the role foreign judges should play in U.S. courts.
from Newsweek
By Stuart Taylor Jr. and Evan Thomas
Published Apr 18, 2009

Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations.

But Koh would go much further. To show regard for "the opinions of mankind," he asserted in a 2002 law review article, the death penalty "should, in time, be declared unconstitutional." Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.

Still, conservatives have a point that Koh and the other "transnationalists" are using their legal theories to advance a political agenda. The international legal norms they wish to inject into American law by and large reflect the values of Social Democratic Europe and liberal American academics. Koh is not suggesting, for instance, that American judges adapt Islamic law that discriminates against women. Koh's writings—especially when exaggerated—will add to charges from the right that Obama is a closet socialist. The president may have to answer whether he agrees with Koh's more provocative views.
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Obama Just Displayed His Middle Finger...Again! This time it was to the American People!

Did you see that? Obama just gave America the middle finger!

His choice of Harold Koh exhibits a level of arrogance that's pathologically extreme in its nature. He's chosen someone that's so anti-constitution and anti-American, there may be even some Obamabots that might oppose him. I can't imagine anyone would want this man serving in the Obama Administration.

Obama has basically said "screw you" to the American people. He doesn't care what we think. He is going forward with his plan and daring the the republicans to try and stop him. It only take one Republican vote for this guy to be approved. Anyone who does approve him should be asked to resign immediately.
Rees (now I feel much better)

OBAMA'S MOST PERILOUS LEGAL PICK
Koh: Wants US courts to apply "world law."

from The New York Post

By MEGHAN CLYNE
March 30, 2009

- 'JUDGES should interpret the Constitution according to other nations' legal "norms."
- Sharia law could apply to disputes in US courts.
- The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq.

JUDGES should interpret the Constitution according to other nations' legal "norms." Sharia law could apply to disputes in US courts. The United States constitutes an "axis of disobedience" along with North Korea and Saddam-era Iraq. Those are the views of the man on track to become one of the US government's top lawyers: Harold Koh.

President Obama has nominated Koh -- until last week the dean of Yale Law School -- to be the State Department's legal adviser. In that job, Koh would forge a wide range of international agreements on issues from trade to arms control, and help represent our country in such places as the United Nations and the International Court of Justice.

It's a job where you want a strong defender of America's sovereignty. But that's not Koh. He's a fan of "transnational legal process," arguing that the distinctions between US and international law should vanish.

What would this look like in a practical sense? Well, California voters have overruled their courts, which had imposed same-sex marriage on the state. Koh would like to see such matters go up the chain through federal courts -- which, in turn, should look to the rest of the world. If Canada, the European Human Rights Commission and the United Nations all say gay marriage should be legal -- well, then, it should be legal in California too, regardless of what the state's voters and elected representatives might say.

He even believes judges should use this "logic" to strike down the death penalty, which is clearly permitted in the US Constitution.

The primacy of international legal "norms" applies even to treaties we reject. For example, 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.

Including, apparently, the world of radical imams. A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that "in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States."
A spokeswoman for Koh said she couldn't confirm the incident, responding: "I had heard that some guy . . . had asked a question about sharia law, and that Dean Koh had said something about that while there are obvious differences among the many different legal systems, they also share some common legal concepts."

Score one for America's enemies and hostile international bureaucrats, zero for American democracy.

Koh has called America's focus on the War on Terror "obsessive." In 2004, he listed countries that flagrantly disregard international law -- "most prominently, North Korea, Iraq, and our own country, the United States of America," which he branded "the axis of disobedience."

He has also accused President George Bush of abusing international law to justify the invasion of Iraq, comparing his "advocacy of unfettered presidential power" to President Richard Nixon's. And that was the first Bush -- Koh was attacking the 1991 operation to liberate Kuwait, four days after fighting began in Operation Desert Storm.

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.

Koh, a self-described "activist," would plainly promote his views aggressively once at State. He's not likely to feel limited by the letter of the law -- in 1994, he told The New Republic: "I'd rather have [former Supreme Court Justice Harry] Blackmun, who uses the wrong reasoning in Roe [v. Wade] to get the right results, and let other people figure out the right reasoning."

Worse, the State job might be a launching pad for a Supreme Court nomination. (He's on many liberals' short lists for the high court.) Since this job requires Senate confirmation, it's certainly a useful trial run.

What happens to Koh in the Senate will send an important signal. If he sails through to State, he's a far better bet to make it onto the Supreme Court. So Senate Republicans have a duty to expose and confront his radical views.

Even though he's up for a State Department job, Koh is a key test case in the "judicial wars." If he makes it through (which he will if he gets even a single GOP vote) the message to the Obama team will be: You can pick 'em as radical as you like.
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Meghan Clyne is a DC-based writer