A quick look at some of the written answers that State Department legal adviser nominee Harold Koh provided in response to post-hearing questions submitted by Senator Jim DeMint:
Q4. Koh evades answering DeMint’s question whether Koh believes there are “legal limits on the Senate’s ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing.” But Koh has expressed hostility to the notion that the Senate has the legal ability to condition its consent to a treaty on a declaration that the treaty is non-self-executing (i.e., does not have domestic legal effect). He also has written that conditioning United States ratification of CEDAW on the “extensive package of reservations, understandings, and declarations” that even the Clinton Administration supported “would be politically unwise, legally questionable, and practically unnecessary to protect American national interests.” (Koh, “Why America Should Ratify the Women’s Rights Treaty (CEDAW),” 34 Case W. Res. J. Int’l L. 263, 270-271 (2002) (emphasis added).)
Q5. Asked whether he stands by his (deceptive) testimony about CEDAW, Koh states that he does and adds the trivial observation that the CEDAW committee does not have “legally binding authority over a State Party.” That observation does not address how much interpretive weight, if any, is to be accorded CEDAW committee statements, nor does it explain how Koh could briskly dismiss as “myths and fallacies” about CEDAW concerns that were squarely based on CEDAW committee statements that he failed even to acknowledge (nor how he could rely on such CEDAW committee statements in his amicus brief in Lawrence v. Texas).
Q10. Koh fails to address whether he believes that the U.S. military campaign in Kosovo in 1999 violated domestic law. (I’ve been advised that Koh has opined both that a military action of that scale without congressional authorization is unconstitutional and that the 60-day limit under the War Powers Act for use of military force abroad without congressional authorization—a limit that the Kosovo campaign exceeded—is constitutionally valid, but I need to confirm these points.)
Q14. Koh musters a tad more vigor than he did in response to Senator Lugar (Q21 here) in asserting that “[p]rosecutions against U.S. officials in foreign tribunals for acts undertaken in their official duties raise a number of issues that are of very serious concern to U.S. interests,” and he states that the United States “is in the best position to decide whether to take any action against former U.S. officials” for such acts. Still very feeble, though.
Q16. Koh tries to evade the fact that his position that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law” means subordinating the real American Constitution to ever-evolving rules of foreign and international law. He cites indirect and attenuated ways in which the Supreme Court “can affect rules of foreign and international law,” and he asserts that the Supreme Court “need not change its interpretation of the U.S. Constitution in order to take international law into account.” But he doesn’t deny that “coordinating U.S. domestic constitutional rules with rules of foreign and international law” will often require the Court to change its interpretation of the Constitution, as his own positions on various issues make clear.