May 05, 2009

Dean Harold Koh, Protecting America, and Protecting Liberty

When Ed Meese, Alfred Regnery, Grover Norquist, Phyllis Schlafly, and Richard Viguerie join forces to come out swinging against someone, perhaps that means that they are afraid of that person.

Ten right wing leaders, including the five mentioned above, have launched an attack on Yale Law School Dean Harold Koh, whom President Obama nominated to serve as the Legal Adviser to the State Department.

It is important to correct some of the misstatements about Dean Koh’s views in this right wing attack.

First is the most outrageous claim: that Dean Koh would bar the United States from protecting Americans:

Koh favors a flat ban on the United States government ever taking action to prevent American citizens from severe and imminent threats to national security.  Koh opposes the very idea that American government officials should act to promote what they perceive to be our national self-interest.

No citation is offered for this claim. The reality, of course, is otherwise. Dean Koh’s 1990 book was titled The National Security Constitution, and it described the way that the three branches could work together to protect the country. More recently, Dean Koh has written: “At the dawn of the post-Cold War era, the international law rules for using force seemed pretty clear: One state could lawfully breach another’s territorial sovereignty only if one or more of three conditions obtained: response to aggression, self-defense, or an explicit U.N. Security Council resolution.” On American Exceptionalism, 55 Stan. L. Rev. 1479, 1515 (2003).

Second, they claim that Dean Koh would threaten American free speech.

He objects to America’s “distinctive rights culture,” which he complains gives “First Amendment protections for speech and religion … far greater emphasis and judicial protection in America than in Europe or Asia.”

Dean Koh was once Assistant Secretary of State for Democracy, Human Rights, and Labor. In that position, he championed free speech throughout the world, and denounced political repression. His writings have never shown anything but admiration for our speech tradition. The characterization is misleading, almost to the point of disingenuousness. Dean Koh never “complains” about our protections for speech and religion. The full quote from Koh’s article is instructive: “By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia.” Id. at 1484. (Note that the right wing critics' characterization neatly excised the reference to "nondiscrimination based on race" from the original quote.) Dean Koh has been a steadfast champion of equality, free speech, and freedom of religion. 

Third, they claim that Dean Koh “favors foreign law over American law” and “wants to impose on us the views of foreign and international bureaucrats.” This has been debunked by many people, including Duncan Hollis and Chris Borgen. Dean Koh shows respect for international law, as does 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." 

Fourth, they claim that he might support prostitution and do away with Mother's Day.

... he strongly supports a treaty that has been interpreted by the treaty’s own committee to create rights to abortion and prostitution, to have the government determine the pay scale of every job, and even to require the abolition of Mother’s Day. 

Parts of this claim have been debunked by Beth Van Schaack. The reference is to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a treaty that has been ratified by 185 countries, including all OECD states, except the United States. The American Bar Association has long urged the ratification of CEDAW. Unless the ABA and 185 countries have a secret agenda to promote prostitution and eliminate Mother’s Day, this claim seems far-fetched. CEDAW became effective in 1981--proponents of its alleged agenda to promote prostitution and demote motherhood better up their game. (And by the way, Happy Mother's Day, Mom and Madhavi!)

Fifth, they claim that Dean Koh would “threaten[] a massive redistribution of wealth from American citizens to international left-wing activists.” This claim repeats the claim of Curtis Bradley and Jack Goldsmith in a recent op-ed complaining of a case challenging American and European companies who provided support to the Apartheid government in South Africa. Dean Koh has long supported the Alien Tort Statute (ATS), a statute enacted in 1789 as part of the First Judiciary Act (hardly a radical provenance).  Like any tort statute, it gives the victim of a tort the right to sue the tortfeasor. Judge Shira Sheindlin’s 135 page decision in the case is careful and considered, not radical.

This has been a rebuttal of some of the unfair charges. It is far better to make an affirmative case for Dean Koh. Countless individuals have offered their testimony on Dean Koh’s behalf. A hundred law deans, hundreds of law professors, Ted Olson, and Kenneth Starr, for example, have all endorsed his candidacy for Legal Adviser. But more fundamentally, one might do well to consider the values expressed in his representation of Haitian refugees, many with AIDS, in the 1990s, as chronicled by Brandt Goldstein in Storming the Court. Consider as well the love for American leadership in the world that Dean Koh expresses in the same Stanford Law Review article that his detractors seek to twist into unrecognizable shape:

My second, bittersweet anecdote comes from my childhood. It is really the story that made me a human rights lawyer. My late father, Dr. Kwang Lim Koh, served as Minister to the United States for the first democratically elected government in South Korea. In 1961, a military coup overthrew the democratic government of Prime Minister Chang Myon, and Chang was taken into house arrest amid rumors that he would shortly be executed. To plead for Chang's life, my parents brought Chang's teenaged son to see Walt W. Rostow, then the Deputy National Security Adviser to the President. As my father recalled, Rostow turned to the boy, and told him simply, "We know where your father is. Let me assure you, he will not be harmed."  
Rostow's words stunned my father, who simply could not believe that any country could have such global power, reach, and interest. The story so impressed my father that he repeated it on countless occasions as I grew up, as proof of the exceptional goodness of American power.

If anyone doubts Dean Koh’s commitment to freedom, one need only listen to his personal testament as to his credo on NPR’s “This I Believe” series, where he describes “The Bright Lights of Freedom.”

Posted by Anupam Chander on May 5, 2009 at 11:10 PM in Current Affairs | Permalink