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Harold Koh’s Transnationalism—The Role of the State Department Legal Adviser


The position for which Koh has been nominated—State Department legal adviser—would provide him a cornucopia of opportunities to advance and implement his dangerous transnationalist views.  

On an everyday basis, Koh’s job would be to advise the Justice Department on the legal positions that the United States ought to be taking in federal courts on the virtually limitless set of issues that he believes implicate international law and in cases that affect foreign relations.  He would help determine the legal positions that the United States would be taking before international bodies and in international conferences.  He would counsel government officials on international negotiations, treaty interpretation, and treaty implementation.  Koh would be a major player in interagency disputes on all these matters, and his expertise, savvy, and tenacity make it likely that he would have exceptional influence.

If you don’t believe me, take Koh’s own word for it.  Koh himself has highlighted how the “skill and maneuvering of particular well-positioned individuals, …serving as key institutional chokepoints,” can have inordinate influence on American positions on international law.  (Koh, “On American Exceptionalism,” 55 Stan. L. Rev. 1479, 1496 (2003).)  As State Department legal adviser, Koh would make himself one of those chokepoints.

Further, consider Koh’s discussion of the “six key agents in the transnational legal process” of the “internalization” of international law into domestic law.  (Koh, “The 1998 Frankel Lecture:  Bringing International Law Home,” 35 Hous. L. Rev. 623, 646-655 (1998).)  Second on Koh’s list—after “transnational norm entrepreneurs”—are “governmental norm sponsors” who will “act as allies and sponsors for the norms [that transnational norm entrepreneurs] are promoting”:

Once engaged, these governmental norm sponsors work inside bureaucracies and governmental structures to promote the same changes inside organized government that nongovernmental norm entrepreneurs are urging from the outside. Not infrequently, officials within governments or intergovernmental organizations become so committed to using their official positions to promote normative positions that they become far more than passive sponsors but, rather, complementary “governmental norm entrepreneurs” in their own right.

(Koh, 35 Hous. L. Rev. at 648.)

Given Koh’s fervent commitment to his transnationalist views, it’s a sure bet that Koh, as State Department legal adviser, would work “inside [the] bureaucracies and governmental structures” of the United States government “to promote the same changes inside organized government” that he has long been “urging from the outside” in his activist capacity as a “transnational norm entrepreneur.”  He would be “so committed to using [his] official position[] to promote normative positions” that he would become a powerful “governmental norm entrepreneur” in his own right.

But wouldn’t anyone else that President Obama nominates for this position be equally bad?  Not at all.  Among the dozens (if not hundreds) of lawyers who are amply qualified (by narrow objective criteria) for the position of State Department legal adviser and who broadly share President Obama’s internationalist outlook, Harold Koh is very likely the worst possible pick.  And even with a generous allowance for deference to the president’s ability to select his own advisers, Koh’s radical transnationalist views—and his apparent willingness to resort to deception to advance them—place him well beyond the bounds of what United States senators, and the American people, should consider tolerable.

[This is the 14th—and perhaps last—post in a series focused on the domestic effect of Harold Koh’s transnationalism.  The series does not address the additional dangers that Koh poses on national-security matters (which I’ve touched on here and here).  Below is an outline of the series.  

1.  Overview of series

2.  What “transnationalism” is

3.  Customary international law

a. What customary international law is

b. The transnationalist game on customary international law

4.  Treaties

a.  The scope of the treaty power

b.  The domestic legal status of treaties

c.  CEDAW as a case study

(1) CEDAW and the CEDAW committee

(2) Koh’s remarkable testimony about CEDAW

d.  The treaty game

5.  Constitutional law

            a.  Reinventing the Constitution (Part 1):  Koh’s positions

            b.  Reinventing the Constitution (Part 2):  The flaws in Koh’s positions

            c.  Reinventing the Constitution (Part 3):  What Koh’s positions threaten

            d.  The constitutional game

6.  The role of the State Department legal adviser]

Tags: Whelan


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