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 | Comments (0) | TrackBack

May 22, 2008

Kremlinologists Reactivated for Release of McCain Medical Records

Link: McCain Set to Release Health Data on Friday - New York Times.

On Friday, the campaign will allow a small pool of reporters access to the records from 7 a.m. to 10 a.m. Pacific time in a conference room at the Copper Wind Resort in Phoenix, near the Mayo Clinic Scottsdale. The reporters will be allowed to take notes but not remove or photocopy the records. Campaign officials said they were imposing the restrictions to prevent the actual records from wide dissemination.

McCain--a model of transparency.

Posted by Anupam Chander on May 22, 2008 at 03:19 AM in Current Affairs | Permalink | Comments (0) | TrackBack

May 20, 2008

Inaugural Poem 1992

Link: Inaugural Poem.

... Here on the pulse of this new day

You may have the grace to look up and out

And into your sister's eyes, into

Your brother's face, your country

And say simply

Very simply

With hope

Good morning.

Maya Angelou

Posted by Anupam Chander on May 20, 2008 at 06:39 AM in Current Affairs | Permalink | Comments (0) | TrackBack

February 22, 2008

Were All Gitmo Interrogations Videotaped?

Link: How we got hoodwinked into tolerating abusive interrogations. - By Dahlia Lithwick - Slate Magazine.

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Last week, a team of faculty and students from Seton Hall Law School—the folks who've worked tirelessly for years to document the government's best evidence (PDF) against the Guantanamo prisoners—released a new report suggesting that the government has recorded all of the interrogations at Guantanamo. Using documents prepared by the government and obtained through Freedom of Information Act requests, the team established that all of the 24,000 interrogations conducted at the camp since 2002 were taped. This jibes with reports from the detainees themselves, who came forward to dispute CIA Director Michael Hayden's claim last winter that the videotaping had been halted in 2002.

It also makes perfect sense. If the government was making tapes to protect interrogators in the event of future legal action, there was no reason to stop. Hayden's claim last December that officials "determined that its documentary reporting was full and exacting, removing any need for tapes" defies logic. No matter how good reporting is, video would have been better. That's why the Army Field Manual for Human Intelligence Collection states a preference for videotaping interrogations: "[V]ideo recording is possibly the most accurate method of recording a questioning session since it records not only the voices but also can be examined for details of body language and source and collector interaction."

Posted by Anupam Chander on February 22, 2008 at 07:14 AM in Current Affairs | Permalink | Comments (0) | TrackBack

February 19, 2008

La Bamba Obama (by Billy SooHoo)

Posted by Anupam Chander on February 19, 2008 at 08:52 AM in Current Affairs | Permalink | Comments (1) | TrackBack

November 06, 2007

851 U.S. Soldiers Died Thus Far in Iraq in 2007; 25 More Iraqi Corpses Discovered

Link: 2007 Deadliest Year for U.S. Troops in Iraq - New York Times.

Six American soldiers were killed in three separate attacks Monday, the military said today, taking the number of deaths this year to 851 and making 2007 the deadliest year of the war for American troops.

...Meanwhile, violence against Iraqis continued. The mass grave was found Saturday during a joint American-Iraqi operation in the Lake Tharthar area, a desolate rural area near the site of another grave, holding 25 bodies, that was found less than a month ago.

Local police officials said the bodies were dumped in and around an abandoned building.

“Some were buried in wells and some were left in rooms used as prisons,” said a police officer who helped clear the grave. “These corpses are part of what we expect to find more of in the future.”

A tragedy for everyone.

Posted by Anupam Chander on November 6, 2007 at 09:39 AM in Current Affairs | Permalink | Comments (2) | TrackBack

November 03, 2007

"Things Have Never Been Worse. Stay the Course."

Link: George Bush's presidency | A sceptic tackles a true believer | Economist.com.

The Economist cites Robert Draper's new book, Dead Certain, for uncovering a remarkable set of pithy phrases that captured the baffling results of 2000 and 2004:

In 2000 he beat an incumbent vice-president after eight years of peace and prosperity: the wry slogan among his inner circle was: “Things have never been better. Vote for change.”

Four years later, with the economy stalled and Iraq in flames, he won again. This time, the backstage slogan was: “Things have never been worse. Stay the course.”

Posted by Anupam Chander on November 3, 2007 at 10:37 PM in Current Affairs | Permalink | Comments (0) | TrackBack

August 27, 2007

CBS News Iraq translator killed

Link: CBS News Iraq translator killed.

Anwar Abbas Lafta, who had worked for CBS for about 10 months, was seized Aug. 20 by eight to 10 armed men, some of whom wore body armor, the network said in a statement issued in New York. It said the attackers beat up the translator’s brother and shot his sister in the arm, and that the family later received two calls demanding ransom.

On Aug. 25, the family was notified by police that Abbas’ body had been found on the north side of Sadr City...

CBS said Abbas was in his early 50s and was not married. He had worked as a translator for the U.S. military in Iraq for about three years before joining CBS News.

... Last year, CBS News cameraman Paul Douglas and soundman James Brolan were killed and correspondent Kimberly Dozier was seriously wounded when a car bomb exploded as they were working on a story about American troops in Iraq. A U.S. soldier and an Iraqi interpreter were killed in the same blast.

According to the Committee to Protect Journalists, at least 112 journalists and 40 media support workers — translators, drivers, fixers and guards — have been killed in Iraq since the war began in March 2003 — not counting Abbas. Most of the victims were Iraqis, and many of them were believed targeted because they worked for foreigners.

Five Associated Press employees have died violently in the Iraq war, including three killed since December.

Yet another tragedy. Has Iraq become the world's most dangerous place--for our troops, for contractors, for reporters, and for Iraqis themselves?

Posted by Anupam Chander on August 27, 2007 at 11:17 PM in Current Affairs | Permalink | Comments (0) | TrackBack

July 29, 2007

When Can Prisoners Communicate with Public?

Link: Free our Talib - Los Angeles Times.

And to deepen the inequity, Lindh's sentence also gags him, preventing him from protesting his confinement or discussing his interrogation and treatment.

(assuming the LA Times editorial is accurate on this point...) When can a gag order be part of a criminal sentence? What First Amendment rights do prisoners have?

Posted by Anupam Chander on July 29, 2007 at 02:50 PM in Current Affairs | Permalink | Comments (0) | TrackBack

July 25, 2007

Freed Medics Claim Torture to Draw Confession

Link: Freed medics describe Libyan captivity - International Herald Tribune.

In an official handwritten 2003 declaration to the Bulgarian Foreign Ministry, Snezhana Dimitrova, who was not at the news conference, detailed her two months of physical torture in a Tripoli police station after her arrest in Benghazi in February 1999.

Dimitrova recounted having her arms tied together behind her back, and being hung from a door by her arms.

"Even when I wasn't on the door anymore but on the floor, I thought I had no arms," her statement said. "Tens of men's legs kicked me, then they made me stand up and started to slap me. Everything hurt. I had no strength. I was beaten like a dog, my hair had fallen over my eyes, my blindfold had fallen off and my nose was bleeding."

...Dimitrova wrote that the translator was shouting, "Confess or you will die here."

Posted by Anupam Chander on July 25, 2007 at 03:55 PM in Current Affairs | Permalink | Comments (0) | TrackBack