April 01, 2009

Dean Harold Koh’s Nomination to the State Department

President Obama has nominated Dean Harold Koh of Yale Law School to serve as the Legal Advisor to the State Department.  The Legal Advisor is the nation’s top international lawyer, advising the Secretary of State on international security law, international labor law, human rights law, and the legal aspects of international engagements.

It is hard to imagine a person more qualified to fill the position. Dean Koh clerked on the D.C. Circuit and on the Supreme Court. He practiced law at Covington and Burling. He served in the Reagan Administration as an Attorney-Advisor in the Office of Legal Counsel, and then returned to serve as Assistant Secretary of State for Democracy, Human Rights, and Labor in the Clinton Administration. He is a summa cum laude graduate of Harvard College, a Marshall Scholar at Oxford, and a graduate (like President Obama) of Harvard Law School.  He has written extensively on human rights (including the rights of persons with intellectual disabilities), democracy, and international business transactions. This last subject will prove especially helpful as we grapple with our global financial crisis. Perhaps even more important than these academic credentials are his strength of character and commitment to the law. In the early 1990s, he led the struggle against the detention of Haitian refugees, including individuals with HIV, in Guantanamo (see Brandt Goldstein’s superb book, Storming the Court).

Dean Koh’s nomination has come under strident attack from right wing editorialists and bloggers, such as those for the National Review. This is hardly surprising. Dean Koh, after all, represents the polar opposite of their views. These are the folks who argued strenuously for the Imperial Presidency, for a president who can run foreign policy without any oversight from the coordinate branches, even imprisoning and torturing as he sees fit. In denouncing Koh, the National Review characteristically commends instead the views of John Bolton, who famously alienated the rest of the world as America's top diplomat.

Dean Koh’s book, the National Security Constitution, showed that the Constitution requires checks and balances in foreign affairs, not in domestic affairs alone. The executive-can't-be-bothered-by-the-other-branches types would white out parts of the Constitution: consider the Treaty Clause, the Supremacy Clause, the War Powers Clause, the power to raise Armies, to offer just a few examples. 

Some detractors mistakenly claim that Dean Koh would sacrifice the U.S. Constitution to international law. Dean Koh has always sought to further the U.S. Constitution. Consider that document’s own words, in a sentence that has come to be known as the Supremacy Clause:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." The very first sentence of the Declaration of Independence pays "decent respect to the opinions of mankind."  From 1776 and through much of our history, we were not the unilateralist, go-it-alone types, indifferent to world opinion, relying only on coalitions of the coerced and bribed. Instead, we were the ones who have built up the international institutions that exist today. These institutions are now engaged in peace-keeping, managing refugee populations, and immunizing children against preventable illnesses. In my article, Globalization and Distrust, published in the Yale Law Journal, I demonstrate that international law operates through (and consistently with) national democratic processes, permitting review, revision, and rejection through such processes. Indeed, international law and coordination will be even more necessary as we grapple with the problems of our increasingly globalized world.

As President Obama meets in London to seek help in pulling the world out of an economic tailspin and in regulating global finance, the value of global cooperation seems self-evident. 

Dean Koh has the intelligence, wisdom, and courage for us to rely upon him for advice as to America's legal engagements with the world. The fact that his nomination has drawn such a sharp response from the zealots who have wrecked America's standing in the world, justified torture, and waged war recklessly only further confirms the wisdom of the choice.

Update: A commentator below threatens me with deportation.  

Posted by Anupam Chander on April 1, 2009 at 03:55 PM | Permalink