Global Climate Change

Floor Speech

GLOBAL CLIMATE CHANGE -- (Senate - June 25, 2009)

BREAK IN TRANSCRIPT

The PRESIDING OFFICER. The Senator from Texas.

Mr. CORNYN. Mr. President, I rise to speak, once again, on the nomination of Harold Koh, whom the President has nominated to be Legal Adviser for the State Department. To put this in context, as the Senator from Massachusetts has addressed, the Legal Adviser is a very important job at the State Department. He is responsible for providing guidance on important legal questions, including treaty interpretation and other international obligations of the United States. He gives the Secretary of State legal advice during negotiations with other nations. So the Legal Adviser can be a very influential voice in diplomatic circles, especially if he or she has particularly strong views on America's obligations to other nations and multilateral organizations.

Based on my review of Dean Koh's record, I don't believe he is the right man for this job. His views are in tension with what I believe are core Democratic values, in that he would subjugate America's sovereignty to the opinions of the so-called international common law, including treaty obligations that the Senate has never ratified. Indeed, they are not obligations, but he nevertheless would impose them on the United States. When the Senator from Massachusetts says he believes the U.S. Constitution is primary, I would have felt much better if he had said it was the exclusive source of American law, together with the laws that we ourselves pass as representatives of the people; not just a consideration but the consideration when it comes to determining the obligations and rights of America's citizens, rather than subjecting those to international opinion and vague international norms which I heard the Senator refer to.

It is true Professor Koh is an advocate of what he calls transnational jurisprudence. He believes Federal judges--these are U.S. judges--should use their power to ``vertically enforce'' or ``domesticate'' American law with international norms and foreign law. As I mentioned, this means judges using treaties and ``customary international law'' to override a wide variety of American laws, whether they be State or Federal. Of course, we understand treaties that have been ratified by the Senate are the law of the land, but Professor Koh believes that even treaties that the United States has not ratified can be evidence of customary international law and given legal effect as such.

The Legal Adviser to the State Department has an important role, as I mentioned, in drafting, negotiating, and enforcing treaties. That is why it is so crucial he understands that no treaty has the force of law in the United States until it has been ratified, pursuant to the Constitution, by the Senate. Do we want a top legal advisor at the State Department who believes that norms that he and other international scholars make should become the law, even if they are rejected or not otherwise embraced by the Congress? That can't be within the mainstream. That is outside the mainstream; indeed, I believe a radical view of our obligations in the international community.

In 2002, Professor Koh delivered a lecture on the matter of gun control. He argued for a ``global gun control regime.''

I don't know exactly what he means by that, but if he means that the second amendment rights under the U.S. Constitution of an individual American citizen to keep and bear arms are somehow affected by global gun control regimes, then I disagree with him very strongly. Our rights as Americans depend on the American Constitution and American law, not on some global gun control regime or unratified treaties because of some legal theory of customary international law.

On the matter of habeas corpus rights for terrorists, in 2007, Professor Koh argued that foreign detainees held by the U.S. Armed Forces anywhere in the world--not just enemy combatants at Guantanamo Bay--are entitled to habeas corpus review in U.S. Federal courts. Those are the rights reserved to American citizens under our Constitution and laws, not to foreign terrorists detained by our military in farflung battlefields around the world.

If Professor Koh were correct--and he is not--this would mean that even foreign enemy combatants captured on the battlefield fighting against our troops in Afghanistan and held at Bagram Air Force Base would be able to sue in the U.S. courts seeking their release.

On this issue, fortunately, Dean Koh's radical views are not shared by the Obama administration, which filed a brief recently arguing that habeas corpus relief doesn't extend to detainees held at Bagram Air Force base in Afghanistan.

Do we want a top legal adviser in the State Department working to grant terrorists and enemy combatants even more rights than they have now?

There is the issue of military commissions, something Congress has spoken on at some length after lengthy debate. Professor Koh's views of military commissions also deserve our attention.

Military commissions, it turns out, have been authorized since the beginning of this country--by George Washington during the Revolutionary War, by Abraham Lincoln during the Civil War, and by Franklin Roosevelt during World War II. Yes, military commissions have been authorized both by our 43rd and 44th President of the United States in the context of the war on terror.

President Obama has said that ``military commissions ..... are an appropriate venue for trying detainees for violations of the laws of war.'' I agree with him.

Of course, military commissions, as I alluded to a moment ago, have had bipartisan support and have been authorized by the Congress. But somehow Professor Koh takes a more radical view. He believes military commissions would ``create the impression of kangaroo courts.'' He said they ``provide ad hoc justice.'' He said they do not and cannot provide ``credible justice.''

Do we want the top legal adviser at the State Department undermining both the will of Congress and the President regarding the time-tested practice of military commissions during wartime?

Again, here is another example of Professor Koh's views that are radical views--certainly outside of the legal mainstream. Senators should also take a look at Professor Koh's views on suing or prosecuting lawyers for providing professional legal advice in the service of their country.

My position is clear: Government lawyers--and I don't care whether they are working in a Democratic administration or a Republican one--should not be prosecuted or sued for doing their jobs in good faith. They should not be punished for giving their best legal advice under difficult and novel situations, even if it turns out that some lawyer somewhere later disagrees with that advice.

As dean of the Yale Law School, Professor Koh has enabled and empowered the leftwing attempt to sue one of its own alumni, John Yoo, who worked at the Office of Legal Counsel in the Bush administration.

The Yale Law School's Lowenstein International Human Rights Law Clinic has filed suit against John Yoo for the legal advice he provided to policymakers during his service on behalf of the American people.

I wonder if Professor Koh is willing to hold himself to the same standard and agree that individuals can sue him for his official acts if he is confirmed as Legal Adviser to the State Department--if later on lawyers, and perhaps prosecutors, disagree with that legal advice and say it was wrong.

Suppose Professor Koh gives legal advice that certain GTMO detainees should be released. If they return to the battlefield, as many have, and end up killing Americans, or our allies, should the victims' families be allowed to hold Professor Koh legally responsible in a court of law? Or suppose Professor Koh gives legal advice that authorizes military actions in Afghanistan or Pakistan. If those operations result in collateral damage, or civilian casualties, would the victims have standing in Federal Court to sue Professor Koh?

Do we want a top Legal Adviser at the State Department who is so compromised by the fear of being sued or prosecuted that he could not be trusted to give honest, good-faith legal advice to the Secretary of State or the President of the United States?

Perhaps most timely, given the civil unrest in Iran--and the Senator from Massachusetts was critical of the fact that I quoted a 2007 writing of Professor Koh, but it is true from this writing, and I will read it in a moment--Professor Koh appears to draw a moral equivalence between Iran's regime's political suppression and human rights abuses, on one hand, and America's counterterrorism policies on the other.

In 2007 he wrote:

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

He goes on to say that U.S. Government criticism of Iranian ``security forces who monitored the social activities of citizens, entered homes and offices, monitored telephone conversations, and opened mail without court authorization,'' was ``hard to square'' with our own National Security Agency's surveillance programs.

Do we want to confirm a top Legal Adviser at the State Department who can't see the difference between counterterrorism policies approved by the Federal courts and the Congress and the brutal repression practiced by a theocratic regime?

We have heard enough moral equivalence about Iran over the last week,
and we have heard enough apologies for the actions of the United States, and enough soft-peddling of the actions of the Iranian theocracy, which is a brutal police state. 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 oppose the nomination of Harold Koh as the top Legal Adviser to the State Department.

I yield the floor and reserve the remainder of my time.

BREAK IN TRANSCRIPT

Source