Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - June 24, 2009)

BREAK IN TRANSCRIPT

Mr. CORNYN. Mr. President, I rise reluctantly to speak against the nomination of Harold Koh to be the Legal Adviser to the State Department. I had a chance to explain some of the reasons yesterday, and for the benefit of our colleagues I wish to cover those and some additional concerns as well with a little more detail.

There is no question that Dean Koh is a brilliant lawyer and he has been a charming advocate for his promotion to this important position. However, I have concluded that he is not the right person for this job, because he has stated what I would consider to be radical views with regard to the role of the United States sovereignty relative to the rest of the world.

For example, he has advocated judges using treaties in customary international law, including treaties that the Senate has not ratified, to bind the United States. If that is not an erosion of U.S. sovereignty, I don't know what it is. Advocating that judges who take an oath to uphold and defend the Constitution and laws of the United States should instead look to international treaties as the source of that law, to me, is a radical and very fundamental shift in what I think most people would expect from our judges.

He said that Federal judges should use their power to ``vertically enforce'' or ``domesticate'' American law with international norms and foreign law. Do we want the top adviser at the State Department supporting the idea that international bodies and unelected Federal officials, not the Congress,
should be the ultimate lawmaking authority for the American people? I don't think so.

This has manifested itself in a number of ways. For example, in an interview that Dean Koh gave on May 10 for the ``News Hour,'' he was asked about, for example, some of the interrogations that took place in places such as Guantanamo. He basically said that the U.S. forces, including our commanders and presumably the intelligence officials who actually conducted interrogations and detentions, violated the Geneva Conventions and should be held accountable for that. Does he believe that U.S. officials should be prosecuted and perhaps convicted of war crimes because they did what the American people asked them to do, consistent with the legal opinions from the Office of Legal Counsel at the Justice Department?

As the Wall Street Journal points out today in an article called ``The Pursuit of John Yoo''--I will read a couple of sentences from it:

Here's a political thought experiment: Imagine that terrorists stage an attack on U.S. soil in the next 4 years. In the recriminations afterward, Administration officials are sued by families of victims for having advised in legal memos that Guantanamo be closed and that interrogations of al-Qaida detainees be limited. Should these officials be personally liable for the advice they gave to President Obama?

The article goes on to say:

We'd say no, but that's exactly the kind of lawsuit that the political left, including State Department nominee Harold Koh, has encouraged against Bush administration officials.

Of course, it goes on to talk about the lawsuit brought by Jose Padilla, a convicted terrorist, against lawyers at the Office of Legal Counsel at the Justice Department that is being encouraged, if not facilitated, by Harold Koh, the outgoing dean at the Yale Law School, the person who is being proposed for promotion as a Legal Adviser at the Justice Department.

I think his views, if they were confined to academia and to Yale Law School, would be one thing, but the thought that he would bring and put these what I would consider to be out-of-the-mainstream legal theories and approaches into action as a Legal Adviser at the State Department, to me is a frightening prospect.

He has also, in the course of his writings, taken very extreme views with regard to the second amendment to the Constitution of the United States, part of our Bill of Rights, the right to keep and bear arms. In 2002, and later in Fordham Law Review in May of 2003, he wrote an article called ``The World Drowning In Guns'' in which he argued for a global gun control regime. Do we want the top adviser at the State Department working through diplomatic circles to take away Americans' second amendment rights to the Constitution? I think not.

Third, Professor Koh in 2007 argued that foreign fighters, detainees held by the U.S. Armed Forces anywhere in the world--not just at Guantanamo Bay--are entitled to habeas corpus review in U.S. Federal courts--in civilian courts--just as an American citizen would be, no matter where they were held. Do we want the top adviser at the State Department working to grant terrorists and enemy combatants more rights than they have ever had before under any court interpretation? I think not.

Perhaps most timely, Professor Koh appears to draw moral equivalence between the Iranian regime's political suppression and human rights abuses on the one hand, which we have been watching play out on television, and America's counterterrorism policies on the other hand. In 2007, he wrote:

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.

Do we want a Legal Adviser to the State Department who can't see the difference between America defending itself against terrorism and the brutal repression practiced by a theocratic dictatorship? I think not.

I am afraid that Dean Koh is just another in a line of radical nominees by this administration that the Senate should not confirm.

I think back to Don Johnson who was also nominated to the Office of Legal Counsel who said America is not at war post 9/11, and that instead of embracing the provisions of the Constitution that recognize the President's powers as Commander in Chief to protect the American people, we ought to instead resort to a paradigm that says, Well, this is a law enforcement matter. If it is a law enforcement matter, then you are not going to do anything to stop terrorist attacks before they occur; you are merely going to prosecute the terrorists after they kill innocent life.

Just like Don Johnson, who said we are not at war, Harold Koh has encouraged and facilitated the investigation and perhaps prosecution of American military personnel, and who knows who else, including lawyers who have provided legal advice, as well as perhaps the intelligence officials who relied on that advice to get actual intelligence that we have used to deter and indeed to defeat terrorist attacks on our own soil.

I hope my colleagues will join me in voting against cloture on this nomination. Professor Koh may be an appropriate individual for some other job, but when our national security is at stake, and our role relative to the international community, whether we are going to subject ourselves not just to the U.S. Constitution and laws made by the elected representatives of the people here in the Congress but instead to international treaties and international common law that we have not agreed to and that the American people have not consented to, I think this is the wrong job for this nominee. I ask my colleagues to join me in voting against cloture.

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

BREAK IN TRANSCRIPT

Source