Once I’ve reviewed the transcript of yesterday’s confirmation hearing for State Department legal adviser nominee Harold Koh, I expect to have some comments on Koh’s testimony. For now, I’ll address some of the written answers that Koh submitted before the hearing in response to questions submitted by Senator Richard Lugar (the ranking member on the Senate Foreign Relations Committee):
Q1. Koh says that it would be “premature” for him to address the extraterritorial scope of the International Covenant on Civil and Political Rights. Maybe so. Yet it would have been good if Koh had acknowledged that he has argued to the Supreme Court (in his amicus brief (p. 4) in Hamdan v. Rumsfeld) that the ICCPR governs the trials of criminal charges against detainees held as enemy combatants, whether or not those trials occur on American soil.
Q3. Koh says that his “long-held view is that the Executive Branch is bound to comply with the reservations, understandings and declarations that accompany the Senate’s advice and consent to ratification of a treaty.” That statement makes it seem as though Koh believes that the Senate’s ability to attach reservations, understandings and declarations to its consent to a treaty is unlimited. But in fact 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).)
Q8. Asked about his reliance on foreign law in interpreting the Constitution and the role that he would have in forming the Obama administration’s position on the meaning of constitutional provisions, Koh states (in part) that “the U.S. Constitution is the ultimate controlling law in the United States.” That seeming assurance is a meaningless dodge, as Koh’s real position is that the meaning of constitutional provisions should be redefined to comport with ever-changing rules of foreign and international law.
Q21. Asked how the United States government should respond to “efforts of foreign courts to assert criminal jurisdiction over sitting or former U.S. officials for acts undertaken in the course of their official duties,” Koh charts an amazingly feeble course. He doesn’t suggest that it’s the proper role of the United States to handle any prosecutions of sitting or former U.S. officials for their official actions, or that the United States should vigorously protest such criminal prosecutions by foreign authorities, or threaten reprisals, or do anything to put a stop to them. Rather, he says that the role of the United States “should be first to understand the procedural posture of the case, precisely how it arose, the nature of the allegations raised against the former U.S. government officials, the shared aspects, if any, between the foreign prosecution and any other investigations or inquiries that may be pending or forthcoming in the United States, and the nature of any defenses that might be available in such proceedings.” He would “follow such cases closely” and “work actively with our foreign counterparts through legal and diplomatic channels.”
Q23. Koh maintains that his previous assertion in a law-review article that the President and other U.S. officials “may be sued” under the Alien Tort Statute wasn’t meant to express a view that they wouldn’t have legal immunity against such suits.
Q32. Asked about one of his publications, Koh maintains that he “agree[s] with the longstanding U.S. government view that a state may use military force to defend itself if an armed attack occurs, or in the event that such an attack is imminent.” But what he actually proposed, in the very passage that Senator Lugar quotes, is that “we move to a per se ban on unilateral anticipatory war making, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the form of prior permission.” Koh called for “a unilateral [sic—the context suggests that Koh means universal] ban on unilateral preemptive attacks”:
Those nations who feel compelled to ignore that ban could seek subsequent forgiveness and not prior permission, much as President Harry Truman did when he dropped the atomic bomb on the civilian population of Nagasaki.… If the president feels compelled so to act, and he wants to argue that he was motivated to do so in the name of national survival, he can defend himself in many different legal and political fora. A prosecutor could decline to prosecute him, he could receive a pardon, or his sentence could be commuted. But we should reject the notion that he should be given the freedom and authorization ex ante to undertake such drastic action.
That is decidedly not the “longstanding U.S. government view.”