In Defense of Harold Koh: Nominee for State Department Legal Advisor

In Defense of Harold Koh: Nominee for State Department Legal Advisor
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"When someone is truly great, that means you will not see their like again, there will not be anyone like them for three or five generations."
-Harold Koh

As I have discussed in a previous post, Yale Law School Dean Harold Koh, President Obama's nominee for State Department Legal Advisor, is a tremendous candidate for the job. He is the real deal. We are not likely to see a figure with his intellect, judgment, and professionalism for some time.

Having served in both Republican and Democratic Administrations, his nomination has gained support across party lines as perhaps the most qualified person for the position. His views on the relationship between international law and constitutional law are well within the mainstream.

One criticism of those opposing Koh's nomination involves his position on the role of customary international law -- international rules of the road that are developed through the practice of nation-states when this practice reflects a sense of legal obligation. These critics have mischaracterized Dean Koh's work and disregarded well-recognized and long-standing precedent and practice.

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. In response to those who have attacked Koh's nomination based on his reasonable support for judges' routine application of customary international law, Professor Laura Dickinson is right on the money in her post on Opinio Juris, in which she notes:

To claim that ... judges are subverting democratic processes is at best hyperbole and at worst distortion. Indeed, most of [one critic's] arguments seem to be equally applicable to all forms of judicial review, but if [the critic] is opposed to judicial review, then it is [he] 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.

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.

The complex economic problems we face today are of unprecedented scope and require principled and balanced solutions from steady, seasoned hands. Harold Koh is the ideal candidate to guide the State Department in shaping solutions in a manner consistent with principles of justice, fairness, and professionalism. By confirming Harold Koh as Legal Adviser, the Senate will take a much needed step toward securing the rule of law at home and abroad and restoring the United States' reputation as a moral world leader.

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