Koh Nomination

Floor Speech

KOH NOMINATION -- (Senate - June 23, 2009)

Mr. CORNYN. Mr. President, I rise to speak on the nomination of Harold Koh whom the President has nominated to be legal advisor to the State Department. This is a relatively obscure but very important position at the State Department. The legal advisor operates frequently behind the scenes but on such important issues as international relations, national security, and in other areas.

One area that is very important is that the legal advisor is often the last word at the State Department on questions regarding treaty interpretation; that is, international agreements between countries. The legal advisor often gives legal advice to the Secretary of State and the President of the United States during important negotiations with other nations. We also know from experience that the legal advisor can be a very important voice in diplomatic circles, especially if he or she views America's obligations to other nations and multilateral organizations in a particular way, particularly if they have strong views.

Professor Koh has an impressive academic resume and professional background. He is an accomplished lawyer and a scholar in the field of international law. Nevertheless, I do not believe that Professor Koh is the right person for this job. I believe that many of his writings, his speeches, and other statements are in tension with some very core democratic values in this country. I believe that his legal advice on transnational law, if taken to heart, could undermine America's sovereignty or security and our national interests.

I urge my colleagues not to take my word for this but look for themselves at Professor Koh's record and consider whether he is the right person to be advising Secretary Clinton and other diplomats at the State Department on legal issues pertaining to our relationship with other nations and such key issues.

I mention this notion of transnational jurisprudence, which is a little arcane, but I will explain what it is all about. Professor Koh has been an advocate for transnational jurisprudence, which is the idea that Federal judges should look at cases and controversies as opportunities to change U.S. law and to make it look more like international or other foreign law.

I am not saying that all foreign law is bad, but our Founders acknowledged that when we take the oath of office here, we pledge to uphold and defend the Constitution of the United States of America, not some unsigned, unratified international treaty or an expansive notion of international common law which Professor Koh embraces and advocates.

We know Americans don't have a monopoly on virtue and wisdom and certainly we can benefit from exchanging ideas with other democratic countries. But Professor Koh's notion that it is appropriate and proper for a Federal judge to look at foreign law in deciding what the Constitution of the United States means, and what the laws of the United States require, to me, is at complete tension with this idea that we will uphold American values and the American Constitution and American laws passed by our elected officials. We do not appropriately ask Federal judges to look at unratified treaties, some notion of international common law and, certainly, the laws of other countries in interpreting our laws in the United States.

Professor Koh seems to have a different view. He said Federal judges should use their power to ``vertically enforce'' or ``domesticate'' American law with international norms and foreign law.

He has argued that Federal judges should help ``build the bridge between the international and domestic law through a number of interpretive techniques.''

Where will these ``interpretive techniques'' lead us? Evan Thomas and Stuart Taylor asked that question in Newsweek magazine earlier this year. They answered based on their investigation:

Were Koh's 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.

Transnational jurisprudence is not the only controversial view professor Koh holds. Again, as a law professor and dean of Yale Law School, I understand law professors advocating cutting edge and, indeed, provocative legal interpretations. But to say this is appropriate not in the classroom as a teaching exercise but, rather, important for Federal judges to do in the exercise of their article III powers is an entirely different notion altogether.

In 2002, Professor Koh gave a lecture titled ``A World Drowning in Guns,'' in which he argued for a ``global gun control regime.''

In 2007, he argued that foreign prisoners of war held by the U.S. Armed Forces anywhere in the world--not just enemy combatants held at Guantanamo Bay--are entitled to the same rights as American citizens under habeas corpus law as applied by our Federal courts.

Perhaps most timely, Professor Koh appears to draw a moral equivalence between the Iran regime's political suppression and human rights abuses, on the one hand, and America's counterterrorism policies on the other hand.

Professor Koh has written:

[U.S.] criticism of Iranian ``security forces [who] monitor the social activities of citizens, entered homes and offices, monitored telephone conversations, and opened mail without court authorization'' is hard to square with our own National Security Agency's sustained program of secret, unreviewed, warrantless electronic surveillance of American citizens and residents.

Furthermore, the United States cannot stand on strong footing attacking Iran for ``illegal detentions'' when similar charges can be and have been lodged against our own government.

The U.S. policies that Professor Koh is criticizing were authorized by the Congress in a bipartisan fashion, and each of us is accountable to our constituents for the decisions we make.

It is offensive to compare the policies of the U.S. Government with those of a theocratic dictatorship that responds to criticism with brutal violence against its own people.

We have heard enough moral equivalence regarding Iran over the last week and a half. We have heard enough apologies for the actions of the United States--and enough soft-peddling of the brutal suppression by the Iranian regime of their own people. We don't need another voice in the administration whose first instinct is to blame America--and whose long-term objective is to transform this country into something it is not.

For these reasons, I urge my colleagues to vote no on the cloture motion on this nomination.

I yield the floor and suggest the absence of a quorum.

Source