[Senate Hearing 111-931]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-931

                                 NOMINATION

=======================================================================

                                HEARING



                               BEFORE THE



                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE



                     ONE HUNDRED ELEVENTH CONGRESS



                             FIRST SESSION



                               __________

                             APRIL 28, 2009

                               __________



       Printed for the use of the Committee on Foreign Relations


                   Available via the World Wide Web:
                        http://www.fdsys.gpo.gov


                  U.S. GOVERNMENT PRINTING OFFICE
 65-250 PDF               WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001






                COMMITTEE ON FOREIGN RELATIONS          

             JOHN F. KERRY, Massachusetts, Chairman        
CHRISTOPHER J. DODD, Connecticut     RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin       Republican Leader designee
BARBARA BOXER, California            BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey          JOHNNY ISAKSON, Georgia
BENJAMIN L. CARDIN, Maryland         JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania   JIM DeMINT, South Carolina
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming
JEANNE SHAHEEN, New Hampshire        ROGER F. WICKER, Mississippi
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York


                 David McKean, Staff Director         
        Kenneth A. Myers, Jr., Republican Staff Director        

                             (ii)          









                            C O N T E N T S

                              ----------                              
                                                                   Page

Kerry, Hon. John F., U.S. Senator from Massachusetts.............     1


Lugar, Hon. Richard G., U.S. Senator from Indiana................     3


Lieberman, Hon. Joseph I., U.S. Senator from Connecticut.........     5
    Prepared statement...........................................     5


Dodd, Hon. Christopher J., U.S. Senator from Connecticut.........


Koh, Hon. Harold H., Nominated to be Legal Advisor to the 
  Department of State............................................     9
    Prepared statement...........................................    10


Responses of Legal Adviser-Designate Koh to Questions Submitted 
  for the Record by Members of the Committee.....................    33

                                 (iii)

  

 
                               NOMINATION

                              ----------                              


                        TUESDAY, APRIL 28, 2009

                                       U.S. Senate,
                            Committee on Foreign Relations,
                                                    Washington, DC.

Harold H. Koh to be Legal Adviser to the Department of State
                              ----------                              

    The committee met, pursuant to notice, at 2:20 p.m., in 
room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry 
(chairman of the committee) presiding.
    Members present: Senators Kerry, Dodd, Feingold, Shaheen, 
Gillibrand, Lugar, Corker, Isakson, Barrasso, and Wicker.
    Also present: Senator Lieberman.

           OPENING STATEMENT OF HON. JOHN F. KERRY, 
                U.S. SENATOR FROM MASSACHUSETTS

    The Chairman. This hearing will come to order.
    We are here today to consider the nomination of Dean Harold 
Koh to be the legal adviser to the Department of State.
    Dean Koh, thank you so much for being willing to take this 
on and for joining us here today.
    We thank our colleague, Senator Lieberman, for being here 
and I will call on momentarily.
    I see you also have a number of members of your family 
here, and we look forward to your introducing them to the 
committee in a few moments when you give your opening remarks.
    And again, I apologize. I mentioned to Dean Koh before we 
came in here that I have to go down to the White House for a 
meeting, and I have asked Senator Lugar to chair during my 
absence. And I appreciate his willingness to do that and again 
underscore the good bipartisan way in which the committee 
works.
    Dean Koh is one of the foremost legal scholars in the 
country, and he is a person of the highest intellect, 
integrity, and character. Frankly, we are very fortunate to 
have such an extraordinarily well-qualified candidate for this 
critical position.
    If confirmed, Dean Koh will be the Secretary of State's 
chief legal counsel and the top adviser within the executive 
branch on legal matters related to our foreign policy. He will 
advise on the legal aspects of the most complex and important 
national security matters facing the country, covering issues 
from detainee policy to arms control negotiations.
    Dean Koh brings a very impressive record of achievement to 
this post. He received his law degree from Harvard, where he 
was an editor of the Law Review; two master's degrees from 
Oxford University, where he was a Marshall Scholar. And as a 
young lawyer, he clerked on both the D.C. Circuit Court of 
Appeals and the U.S. Supreme Court.
    He served with distinction in both Democratic and 
Republican administrations, beginning his career in Government 
in the Office of Legal Counsel in the Reagan administration.
    Dean Koh left government to teach at Yale Law School, where 
he went on to serve as dean until his nomination to serve in 
the current administration. And as a renowned scholar and 
leading expert on international law, he has published or 
coauthored 8 books and over 150 articles.
    In addition to his impressive academic resume, Dean Koh 
comes to this nomination and to the job with a firsthand 
understanding of how the State Department works. He served as 
Assistant Secretary of State for Democracy, Human Rights, and 
Labor in the Clinton administration, a post for which he was 
unanimously confirmed by the Senate in 1998.
    Throughout his career, Dean Koh has been a fierce defender 
of the rule of law and human rights. A letter in support of 
Dean Koh from former high-ranking military officers was 
eloquent on this point. They wrote, ``Dean Koh understands that 
it is not a rule of law if it is invoked only when it is 
convenient, and it is not a human right if it applies only to 
some people. He knows that our Nation is stronger and safer 
when our Government adheres to fundamental American values.''
    Dean Koh understands that the United States benefits as 
much or more than any country from an international system 
governed by the rule of law. He also recognizes the United 
States must play its part by respecting its international 
obligations.
    At the same time, his personal commitment to America's 
security and to the defense of our Constitution are 
indisputable. It is no surprise that not everyone will agree 
with Dean Koh, who often tackles controversial issues. But 
accusations that his views on international or foreign law 
would undermine the Constitution, which some have suggested, 
are simply unjustified.
    As Dean Koh explained in response to a question from 
Senator Lugar on the use of foreign law in constitutional 
interpretation, ``My family settled here in part to escape from 
oppressive foreign law, and it was America's law and commitment 
to human rights that drew us here and have given me every 
privilege in my life that I enjoy. My life's work represents 
the lessons learned from that experience. Throughout my career, 
both in and out of Government, I have argued that the U.S. 
Constitution is the ultimate controlling law in the United 
States, and the Constitution directs whether and to what extent 
international law should guide courts and policymakers.''
    While disagreements on legal theory are perfectly 
legitimate, frankly, some of the attacks against Dean Koh on 
the Internet and in some media outlets are beyond the pale. 
Some have actually alleged that he is against Mothers Day. Now 
I am sure that Professor Koh's mother, who is here in the front 
row, will be very, very happy to set the record straight on 
that. [Laughter.]
    Regardless of any policy differences, we should all be able 
to agree on Dean Koh's obvious competence to serve in the post 
for which the President has chosen him. In fact, we have 
received an outpouring of support from this nomination from all 
over. We have heard from over 600 law professors, over 100 law 
school deans, over 40 members of the clergy, 7 former State 
Department legal advisers, the Society of American Law 
Teachers, the Lawyers Committee for Human Rights, and many 
others.
    Perhaps most remarkable has been the enthusiastic support 
from those who don't necessarily see eye to eye with Dean Koh 
but still felt compelled to speak out publicly on his behalf, 
including former Solicitor General Ted Olson and former White 
House Chief of Staff Joshua Bolten.
    In fact, no less a conservative legal authority than 
Kenneth Starr wrote that, ``The President's nomination of 
Harold Koh deserves to be honored and respected. For our part, 
as Americans who love our country, we should be grateful that 
such an extraordinarily talented lawyer and scholar is willing 
to leave the deanship at his beloved Yale Law School and take 
on this important, but sacrificial form of service to our 
Nation.''
    I hope we can minimize the sacrificial component of that. 
[Laughter.]
    So while I understand there will be healthy debate on Dean 
Koh's nomination, it is really clear that Dean Koh is widely 
respected across the legal and political spectrum. He is 
unquestionably qualified for this position, and I urge my 
colleagues to support his nomination.
    With that, I turn over to Senator Lugar for his opening 
statement, and then we will welcome Senator Lieberman. I don't 
know if Senator Dodd is coming over or not.
    And Dean, I hope you will sort of keep your summary--I 
think it would be best just to give Senators an opportunity to 
have a question period, and we look forward to hearing from 
you, too.
    Thank you.
    Senator Lugar.

              STATEMENT OF HON. RICHARD G. LUGAR, 
                   U.S. SENATOR FROM INDIANA

    Senator Lugar. Mr. Chairman, today the committee meets to 
consider the nomination of Harold Koh to be legal adviser to 
the Department of State.
    As you have pointed out, he has had a distinguished career 
as a scholar, teacher, and advocate. He is dean of one of the 
Nation's leading law schools. He has written widely on issues 
of constitutional and international law.
    Dean Koh has been a strong advocate on questions of human 
rights, including representing Haitian and Cuban asylum seekers 
and filing numerous friend of the court briefs in a range of 
cases involving human rights issues.
    He enjoys support from lawyers he has worked with on these 
matters, as well as those including former Solicitor General 
Kenneth Starr, whom he has litigated against in these cases. He 
has also worked on human rights issues in Government, having 
served as Assistant Secretary of State for Democracy, Labor, 
and Human Rights from 1998 to 2001.
    If confirmed, Dean Koh will be the principal source of 
legal advice for the Secretary of State and other State 
Department officials. This will involve a different kind of 
role from that of a professor or an issue advocate.
    A legal adviser's primary role is to provide objective 
advice on legal issues, not to advocate for particular policy 
outcomes. A legal adviser must be prepared to defend the 
policies and interests of the U.S. Government even when they 
may be at odds with his personal preferences or positions he 
has taken in a private capacity.
    In applying laws applicable to the State Department's work, 
the legal adviser must take account of and respect prior U.S. 
Government interpretations and practices under those laws 
rather than considering each such issue as a matter of first 
impression. A legal adviser must also be a practical problem 
solver, employing legal tools and methods to assist 
policymakers in achieving desired policy goals in our national 
interest.
    These considerations are particularly critical in light of 
the range of important issues that will face the next legal 
adviser. He will advise on questions of U.S. and international 
law applicable to ongoing military operations in Iraq and 
Afghanistan and broader U.S. efforts to combat terrorism.
    He will provide guidance to U.S. treaty negotiators 
involved in efforts to conclude an extension of the START 
treaty with Russia and a potential multilateral instrument to 
address global climate change. He will also have a lead role in 
interpreting and promoting implementation of the broad range of 
treaties and international agreements to which the United 
States is already a party.
    In the course of these responsibilities, the next legal 
adviser must work closely with this committee and with other 
Members of the Senate. On treaty matters in particular, 
effective cooperation between the administration and this 
committee is essential to the development, adoption, and 
implementation of agreements that will advance United States 
interests.
    The power to make treaties is shared between the executive 
branch and the Senate, and prospects for securing Senate advice 
and consent to treaties are greatly enhanced when the executive 
branch consults with the Senate early and often in the treaty 
process.
    The committee also has an important role in overseeing the 
executive branch's application of treaties to which the Senate 
has already provided advice and consent, including any proposed 
changes in the interpretation of such treaties. In all of these 
areas, the legal adviser must actively engage with the Senate 
and with this committee to ensure a smooth treaty process.
    I have had the opportunity to meet with Dean Koh last week 
as part of his confirmation process. I have submitted a series 
of 40 questions for the record that he has answered in advance 
of this hearing and which has been made available to committee 
members today.
    I appreciate very much his diligence in answering these 
extensive questions in a timely manner. His responses to these 
questions were posted on my Web site last Friday and have been 
made available to all members of the committee. I hope this 
material will be helpful to members as they consider Dean Koh's 
nomination, and I look forward to our discussion with our 
distinguished nominee today.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Lugar.
    Senator Lieberman, thanks so much for being here with us. I 
know you care passionately about the Yale Law School, among 
other things, and so we welcome your comments of introduction.

            STATEMENT OF HON. JOSEPH I. LIEBERMAN, 
                 U.S. SENATOR FROM CONNECTICUT

    Senator Lieberman. Thanks, Mr. Chairman.
    As they said in the Dartmouth College case, it is a small 
law school, but there are those of us who love it. Or something 
like that. [Laughter.]
    Mr. Chairman, Senator Lugar, members of the committee, I am 
honored to be before you to introduce Harold Hongju Koh of New 
Haven, CT.
    Mr. Chairman, Senator Lugar, you have spoken so well and 
made many of the points that I wanted to make, I am going to, 
with your permission, include my full statement in the record 
and just speak to you a bit about Harold Koh.
    [The prepared statement of Senator Lieberman follows:]

            Prepared Statement of Hon. Joseph I. Lieberman, 
                     U.S. Senator From Connecticut

    Mr. Chairman, Senator Lugar, honored members of the Senate Foreign 
Relations Committee, thank you very much for the opportunity to join my 
senior colleague, Senator Dodd, today, in introducing Dean Harold 
Hongju Koh, the President's nominee to be Legal Adviser to the State 
Department.
    I have known Dean Koh as both a friend and a neighbor around New 
Haven for many years. He is a truly extraordinary individual and a 
highly qualified choice for this position.
    To state the obvious, Dean Koh is a brilliant scholar--one of the 
great legal minds of his generation--as well as a wonderful teacher, 
who has inspired countless students to pursue a cause greater than 
their own self-interest.
    He also has a distinguished record of service in our government, 
having worked in both Democratic and Republican administrations, and 
consistently won the highest regard from people across the political 
spectrum for his remarkable intellect and ability. It is a reflection 
of the bipartisan respect for Dean Koh that, when President Clinton 
nominated him to be Assistant Secretary of State for Democracy, Human 
Rights, and Labor 11 years ago, he was unanimously confirmed by a then-
Republican-controlled Senate.
    Clearly, Dean Koh will bring extraordinary experience and knowledge 
of international law to the Office of State Department Legal Adviser. 
But that is not all that he will bring to this position.
    Perhaps even more importantly, Dean Koh will bring an extraordinary 
devotion and dedication to our country and an appreciation of the 
fundamental values for which we stand, drawn from his own personal 
experience and the experience of his beloved family.
    Dean Koh understands the meaning of freedom and the evil of 
dictatorship. This is a lesson that he learned from his parents, who 
grew up under Japanese colonial rule in Korea and then fled from the 
repressive military government that emerged there to the United States.
    It is this experience that helped forge in Dean Koh his lifelong 
fidelity to democracy and the rule of law, and that inspired him to 
devote his own life to the cause of equality and justice as a lawyer 
and a law professor.
    In the course of his distinguished career, Dean Koh has authored or 
coauthored eight books and more than 150 articles. He has also 
occasionally exercised his right of free speech. And to tell the truth, 
in the course of my long friendship with Dean Koh, he and I have 
occasionally come out on opposite ends of an issue. But this has never 
interrupted my respect for him, and his intelligence, his honor, his 
experience, and his good judgment, which will serve him well in the 
position for which he has been nominated.
    And there is absolutely no doubt in my mind that Harold Hongju Koh 
is profoundly qualified for this position and immensely deserving of 
confirmation. He is not only a great scholar, he is a great American 
patriot, who is absolutely devoted to our Nation's security and safety.
    Dean Koh is also, as everyone who knows him can attest, a person of 
surpassing warmth, civility, and good humor.
    I think it is worth noting that no one who has ever had the 
pleasure to work with Dean Koh has offered anything other than praise 
for him personally and support for his nomination to this position. In 
fact, he has won the endorsement of a remarkable bipartisan coalition, 
including such Republican luminaries as Ted Olson, Josh Bolten, and Ken 
Starr.
    These endorsements reflect the fact that, even those who might not 
always agree with Dean Koh nonetheless recognize and appreciate the 
integrity, honesty, and graciousness that he will bring to this 
position.
    As the distinguished members of this committee know, we cannot 
afford to think about the rule of law as a Republican mission or a 
Democratic mission. It is a quintessentially American mission, and for 
that reason, I very much hope that you will favorably report on the 
nomination of Harold Hongju Koh--a great American--to this important 
post.
    I thank you, Mr. Chairman.

    Senator Lieberman. I have what I take to be the advantage 
of having known Harold as a neighbor and a friend in New Haven 
for a lot of years before he became the famous person at the 
State Department, the dean of Yale Law School, and now the once 
more famous and slightly more controversial than I have ever 
thought of him nominee to be the legal adviser to the State 
Department.
    So I want to say, personally knowing Harold and his family 
for many years, that this is a person of extraordinary warmth, 
civility, honor, graciousness--I mean all of the values that we 
seek in friends and neighbors. And I think while we may not 
always think of those kinds of personal qualities, to me, they 
are quite relevant. And knowing members of this committee, I 
would guess, in the end, they are to you as well.
    Second, as the record speaks, he is a brilliant legal 
scholar, a real authority in the area for which he has been 
nominated to serve as legal adviser. He is one of the world's 
foremost experts on international law. Harold may actually be 
qualified for this position!
    Second, on that part, he has a distinguished record of 
service already in our Government, having worked in both 
Democratic and Republican administrations and consistently won 
the highest regard from people who worked with him across the 
widest political spectrum.
    Both of you touched, I believe, on another personal factor 
about Harold Koh. He is from an immigrant family, and he has 
the characteristic immigrant family's love for America. He is, 
to use a word that we don't use enough anymore, a patriotic 
American, both to the country and the values that the country 
is based on.
    His parents came here, like so many before and since, 
seeking freedom, running from the evils of dictatorship. They 
lived under Japanese rule in Korea, which was harsh, and then 
fled the repressive military Government of Korea for democracy 
here in America. And I think his life's work, whether you agree 
or disagree with him, on everything he has said about rule of 
law springs from that loyalty and belief in the fundamental 
values of our country.
    Harold has coauthored or authored 8 books and written more 
than 150 articles. He has also occasionally exercised his right 
of free speech. And there have been occasions when Harold has 
said things or written things that I didn't agree with.
    I would dare say that--though he is such a gracious man, he 
hasn't said this to me too often--there have been occasions 
when I have said or done things that he has not agreed with. 
But this has never interrupted my respect for him, for his 
intelligence, for his honor, for his experience, for his good 
judgment, which will serve him well in this position.
    I think anybody who has worked with him, no matter whether 
they have agreed with him or not, have emerged with those same 
good feelings about Harold Koh. And any of you who have the 
opportunity to get to know him will do the same as well. A 
person of integrity, honesty, and graciousness, couldn't do 
better in this particular position.
    And I think he will remind us always as we understand that 
there is a lot of partisanship in a lot of different areas that 
we debate. But there really is no partisanship about the 
importance of the rule of law to our country, and that is what 
Harold Koh's service and career has been about. And it is that 
surpassing priority that he will bring to the position of legal 
adviser to the State Department.
    So I am proud to recommend that you recommend to the full 
Senate that we confirm the nomination of Harold Hongju Koh.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Lieberman. We 
really appreciate that.
    And Senator Dodd, thanks so much for taking time to be 
here. And as a longtime member of this committee, nobody 
understands this task better than you do. So we are delighted 
to have your words of introduction also.

            STATEMENT OF HON. CHRISTOPHER J. DODD, 
                 U.S. SENATOR FROM CONNECTICUT

    Senator Dodd. Well, thank you very much, Mr. Chairman.
    This will be very much an echo in a sense. Having listened 
to my colleague Senator Lieberman speak of Harold Koh, I would 
just want to add my words to his.
    This is an extraordinary opportunity. I think we ought to 
be deeply grateful to the President and to Harold Koh for his 
willingness to take this on. Rarely do we have an opportunity 
to have someone assume this responsibility with as much talent 
and ability and proven experience in this particular area that 
Harold Koh brings to this nomination.
    As Joe has pointed out, Dean Koh has served in both 
Democratic and Republican administrations. At Yale Law School, 
Harold Koh invited people to campus who represented a wide 
spectrum of views, and this is an indication of the kind of 
diversity of thought he welcomes. This is something that is 
critical to the role of legal adviser to the State Department--
to be welcoming of the diversity of thought that ought to be 
brought to the table as we consider the role of our country in 
the ever-growing, more complex global environment that we all 
operate in.
    Your nomination is an important one, particularly as we 
confront the genocide in Darfur or address Iran's nuclear 
programs, the violence on our southern border, or the issue we 
are all talking about today, the swine flu issue. All of these 
issues that the legal adviser's office must be ready for, and 
have the ability to bring all of those questions together.
    It is a major law office in the State Department. This is 
no small department that requires the kind of leadership and 
understanding that Harold Koh brings to that job.
    As Joe has pointed out so rightfully, Dean Koh has a 
remarkable family history. There are obviously millions of 
those stories, but I think you must add that story to what this 
individual has done with his life and the difference he has 
made in the lives of others through his service to our country.
    Maybe the word ``patriotic'' gets used too frequently to 
describe too many people. It appropriately applies to Harold 
Koh. This is truly an American patriot who has taken his life 
experience, his family's experience, and then applied those 
experiences to the public service of our Nation, leading a 
major academic institution on which we depend in no small 
measure, and for promoting the diversity of thought that 
springs from that institution.
    And so, it is a remarkable chance for all of us to have 
someone with as much talent as Harold has to serve our country. 
Along the way we have gotten to know each other very, very 
well. I am not purely objective about this.
    I have worked with Harold on human rights issues in 
Connecticut. The institute named for my father at the 
University of Connecticut, which is dedicated to the human 
rights discipline, is one example. Harold has been tremendously 
helpful and influential in shaping that. And so, beyond just a 
professional awareness of someone, I have gotten to know this 
man personally and well on these questions.
    About 20 years ago, we worked together on issues in Haiti, 
and I have worked closely with Dean Koh on this and other 
issues going back many years. So I don't come to this table in 
support of this nomination based on geography or the fact that 
we live in the same State. I am here because I believe this is 
a unique opportunity for us to welcome and to celebrate someone 
who is willing to help serve our Nation at a critical moment.
    And so, I am delighted to join Joe in this endorsement of a 
nomination and would hope the committee in a resounding voice 
would support this nomination. It sends a very important signal 
at a critical moment that we welcome someone of this ability 
and talent.
    It doesn't mean, as Joe has said, you are going to agree 
with every statement or every word that Harold Koh has written. 
That would be silly to suggest so. But to respect that kind of 
thought and that willingness to listen to others and to be a 
part of shaping that debate is something all of us embrace and 
want to see in people who would assume the job of being legal 
adviser to the Secretary of State.
    And I thank you for listening.
    The Chairman. Well, we thank you, Senator Dodd and Senator 
Lieberman, for very personal and important statements of 
support for the nominee. And I know you are both unbelievably 
pressed schedule wise. So we will excuse you at this time.
    Senator Dodd. I didn't introduce your family. Joe, I 
presume you mentioned the family. Did you?
    Mr. Koh. I said a little, but I am going to leave it----
    Senator Dodd. You are going to leave that to Joe. I 
apologize. Nice to see you again.
    The Chairman. Thanks so much for being here.
    So, Mr. Koh, if you would, we would love to have you 
introduce your family and have a chance to be able to recognize 
them here, and then we look forward to your testimony.
    Thanks.
    Mr. Koh. Thank you, Senator.
    My wife, Mary-Christy Fisher, is the deputy director of New 
Haven Legal Assistance. Senator Dodd was at her office last 
week.
    My daughter, Emily Koh. My mother, Dr. Hesung Chun Koh. My 
sister, Professor Jean Koh Peters of the Yale Law School. And 
my nephew, Daniel Koh.
    His father, Howard, my brother, is actually nominated to be 
Assistant Secretary of Health and Human Services. So we are 
hoping that I will be able to come to his confirmation hearing 
in due course.
    The Chairman. Wow, that is impressive. [Laughter.]
    Well, we look forward to your testimony. Thanks very much.
    Welcome, all of you. We are really delighted to have you 
here. It is a great story, and we are really pleased that you 
could share in this moment.
    Go for it.

STATEMENT OF HON. HAROLD H. KOH, NOMINATED TO BE LEGAL ADVISOR 
                   TO THE DEPARTMENT OF STATE

    Mr. Koh. Senator, thank you so much for the opportunity to 
come before you for this hearing.
    Thank you to Senators Dodd and Lieberman. I thank President 
Clinton and--President Obama and Secretary Clinton for 
entrusting me with this task. And especially my friend of more 
than 30 years, Senator Feingold, who has given me such 
friendship in this process.
    I have introduced my family, and I can only say that you 
have recounted my life story. Returning to Government service 
would help me to repay a debt for a life of opportunity that 
could only have happened in America.
    The moment that most brought this home was the summer of 
1974 when President Nixon resigned. I was a college student 
visiting Seoul. When someone tried to assassinate the President 
of South Korea, army tanks rolled into the streets. And I 
called my father, and I marveled that South Korea had never 
enjoyed a peaceful transition of government, but the world's 
most powerful government had just changed hands without anyone 
firing a shot.
    And my father said, ``Now you see the difference. In a 
democracy, if you are President, then the troops obey you. But 
in a dictatorship, if the troops obey you, then you are 
President.'' And it was the first time that I fully understood 
what John Marshall meant in Marbury v. Madison, when he said 
that the Government of the United States is a government of 
laws and not men.
    Promoting a government of laws and serving the Constitution 
of the United States has been the subject of my career to this 
point, which has included four times taking the oath to serve 
the U.S. Government--twice as a law clerk, as an attorney at 
the Office of Legal Counsel, and as Assistant Secretary of 
State for Democracy, Human Rights, and Labor.
    My new assignment, I hope, would continue these lifelong 
commitments. If confirmed, I would seek to provide to the 
President and to the Secretary the very best legal advice 
possible and urge both our country and others to uphold the 
rule of law.
    My professor, former legal adviser Abe Chayes once said, 
``There is nothing wrong with a lawyer holding the United 
States to its own best standards and principles.'' And I 
believe that as we confront new challenges showing respect for 
international law and institutions will make us stronger and 
safer.
    President Obama pointed this out in his inaugural address. 
When Secretary Clinton recently appeared before this committee, 
she said that U.S. foreign policy should use what she called 
``smart power, the full range of tools at our disposal,'' which 
includes commitment to the rule of law.
    I have spent my career as a scholar and Government lawyer. 
I understand the difference between those roles. For 30 years, 
I have worked with talented and dedicated attorneys from the 
Legal Advisor's Office, which I consider to be the preeminent 
international law firm in the world.
    And as I have argued in my scholarship, energy in the 
executive must be accompanied by genuine respect for the 
constitutional function of advice and consent.
    Mr. Chairman, if confirmed, I would be honored once again 
to take the oath to support and defend the Constitution of the 
United States. I assure you, Senator, those are not just words. 
They are my most deeply held convictions. This country gave my 
family refuge. It gave me the chance to spend my life promoting 
our commitment to law and to human rights.
    I have learned several crucial lessons. These are the ones 
which have suffused my scholarship. First, that obeying the law 
is both right and smart for nations as well as individuals. 
Second, respecting constitutional checks and balances in 
foreign affairs defends our Constitution and leads to better 
foreign policy. Third, making and keeping our international 
promises promotes our sovereignty. It does not surrender our 
sovereignty. It promotes our sovereignty, and it makes us safer 
in a global world.
    Thank you. I look forward to answering your questions.
    [The prepared statement of Mr. Koh follows:]

       Pepared Statement of Harold H. Koh, Nominated to be Legal 
                   Adviser, U.S. Department of State

    Mr. Chairman, Ranking Member Lugar, and members of the committee, I 
am honored to come before you today as the President's nominee to serve 
as Legal Adviser of the United States Department of State. I am deeply 
grateful to President Obama and Secretary Clinton for entrusting me 
with this challenging assignment. I would also like to thank Senators 
Dodd and Lieberman, from my lifelong home of Connecticut, and my friend 
of more than 30 years, Senator Russ Feingold of Wisconsin, for their 
friendship during this confirmation process.
    Mr. Chairman, let me introduce my wife, Mary-Christy Fisher, my 
daughter Emily, my mother Dr. Hesung Chun Koh, my sister Professor Jean 
Koh Peters of Yale Law School, and my nephew Daniel Koh, who all join 
me here today. Only my son William could not be here, as he will soon 
enter exam period at his university. My family's love sustains me in 
all I do, and strengthens my resolve to do the very best job I can to 
serve our country.
    Returning to Government service would help me repay a debt for a 
life of opportunity that could only have happened in America. Sixty 
years ago, my parents, Dr. Kwang Lim Koh and Dr. Hesung Chun Koh, came 
to this country as students from South Korea. My father, an 
international lawyer, served South Korea's first freely elected 
government as its Permanent Representative to the United Nations and 
charge d'affaires in Washington. But when a military coup overthrew the 
South Korean Government, my father refused to swear loyalty to a regime 
that did not respect human rights, democracy, and the rule of law. We 
took refuge here, and as we grew, my parents told us daily how lucky we 
were to live in America, a nation founded on these values. They urged 
me and my siblings--including my older brother Howard, who has just 
been nominated to be Assistant Secretary of Health in the Department of 
Health and Human Services--to serve our Nation by upholding its 
principles.
    During the summer that President Nixon resigned, I was a college 
student visiting Seoul. After someone tried to assassinate South 
Korea's President, army tanks rolled in the streets. I called my father 
and marveled that South Korea had never enjoyed a peaceful transition 
of government, even while the world's most powerful government had just 
changed hands without a shot. My father said, ``Now you see the 
difference: In a democracy, if you are President, then the troops obey 
you. But in a dictatorship, if the troops obey you, then you are 
President.'' It was the first time that I fully grasped what Chief 
Justice John Marshall meant, when he said that the Government of the 
United States is ``emphatically . . . a government of laws, and not of 
men.''
    My parents' teaching inspired me toward a career promoting 
America's commitment to law and human rights. After law school, I 
served as a law clerk for Justice Harry A. Blackmun and Judge Malcolm 
Richard Wilkey, and in both Republican and Democratic administrations: 
As an attorney at the Office of Legal Counsel in President Reagan's 
Department of Justice, and as Assistant Secretary of State for 
Democracy, Human Rights, and Labor under President Clinton. When I 
became a professor at Yale in 1985, the guiding themes of my teaching 
and scholarship became respecting human rights and the rule of law and 
preserving checks and balances. Since 1989, these ideas have also 
inspired the human rights work that I have pursued with my students. 
And during these past 5 years, these themes have been the driving 
principles of my time as dean of Yale Law School.
    My new assignment would continue these lifelong commitments. If 
confirmed, I would seek to provide the President and the Secretary of 
State with the very best legal advice possible and urge both our 
country and others to uphold the rule of law. As my professor, former 
Legal Adviser Abe Chayes once said: There is ``nothing wrong'' with a 
lawyer ``holding the United States to its own best standards and best 
principles.''
    As America confronts a new set of global challenges, showing 
respect for international law and institutions will make us stronger 
and safer. As President Obama reminded us in his inaugural address, 
``earlier generations faced down fascism and communism not just with 
missiles and tanks, but with the sturdy alliances and enduring 
convictions.'' When Secretary Clinton recently appeared before this 
committee, she called on American foreign policy to ``use what has been 
called `smart power,' the full range of tools at our disposal.'' To 
strengthen America's position of global leadership, commitment to the 
rule of law will be an essential element of American ``smart power,'' 
and energetic diplomacy must go hand in hand with accomplished 
lawyering.
    Having spent my career as a scholar and a government lawyer, I 
fully understand the difference between those two roles. For nearly 30 
years, I have worked with the talented and dedicated attorneys from the 
Legal Adviser's Office, which I have always considered one of our 
Government's very finest law offices, as well as the preeminent 
international law firm in the world. And I firmly believe, as I have 
argued in my scholarship, that energy in the executive must be 
accompanied by genuine respect for the constitutional function of 
advice and consent and executive-legislative partnership in foreign 
affairs.
    Mr. Chairman, if confirmed, I would be honored once again to take 
the oath to support and defend the Constitution of the United States. 
To me, those are not just words, but deeply held convictions. This 
country gave my family refuge, and gave me the chance to devote my life 
to promoting America's commitment to law and human rights. From my life 
experiences, I have learned several crucial lessons that I would bring 
to this task if confirmed: That obeying the law is both right and 
smart, for nations as well as individuals; that respecting 
constitutional checks and balances in foreign affairs defends our 
Constitution and leads to better foreign policy; and that making and 
keeping our international promises promotes our sovereignty and makes 
us safer.
    Thank you. I now look forward to answering any questions that you 
may have.

    The Chairman. Thank you very much, Dean Koh. Appreciate it.
    Let me sort of cut right to it, if I can. Obviously, since 
the President nominated you, there has been some discussion of 
your views on the interaction of international, foreign, 
domestic law. And perhaps that includes the theory of 
transnational legal process, and you have described that as a 
kind of shorthand description for how state and nonstate actors 
in Iraq.
    Would you just perhaps share with us, maybe you could 
clarify to the committee right up front here your views? Can 
you explain how you view the use of international law and 
foreign law by U.S. courts? What is the proper weight and 
procedure?
    Mr. Koh. Senator, transnational legal process, which is an 
academic idea, just says what we all know--that we live in an 
interdependent world that is growing increasingly more 
interdependent. It is now new, and it is not radical. It is not 
an ideology. It is a description of a world in which we live, 
and we see it every day.
    We know that our economies are interdependent. We know that 
our communications are interdependent. And we know that our 
laws are interdependent. So if President Obama is going to 
Europe to manage the G20, economic interdependence. If our 
health officials are working on interdependence of our response 
to swine flu, it makes sense to have a State Department who has 
lawyers working to manage the interdependence between the U.S. 
law and laws around the world.
    This is not new. It is from the beginning of the republic. 
It is the basic views of Thomas Jefferson and Ben Franklin, who 
called for us to give decent respect to the opinions of 
mankind.
    And most importantly, it is necessary and unavoidable that 
we be able to understand and manage the relationship between 
our law and other law. You would not, in this day and age, have 
a general counsel of Microsoft who did not know anything other 
than the law of the State of Washington. And in the same way, 
you need a general counsel at the State Department, if 
confirmed, who had a similar kind of knowledge.
    On the question of foreign law and courts, obviously, I am 
not being nominated to be a judge. I am being nominated to be 
the legal counsel of the State Department. And so, knowing 
foreign law, it seems to me, is absolutely critical. What is 
the exposure of U.S. entities in different parts of the world? 
What does foreign law require?
    At home, it has been said by many justices going back, and 
seven justices on our current Supreme Court, that we must look 
to foreign law. We are not bound by it. It is not controlling 
on us, but it is something we can look to as a source of 
instruction. And if we look at law review articles in making 
decisions, we can look to precedents from other countries as 
well.
    The Chairman. So when, if ever, would you counsel that an 
international and/or a foreign law should be binding in our 
court? Are there circumstances where it would be?
    Mr. Koh. They are only binding in our court, international 
and foreign law, when judges make them so, the President 
suggests that they should be so, or Congress embodies them into 
an act of Congress that is signed by the President.
    International and foreign law don't become our law unless 
they are brought into our law by an act of American legal 
institutions. Now that describes what our Constitution creates 
as the channels for bringing these bodies of law into our law.
    The Chairman. Could that happen outside of a treaty that is 
ratified by the U.S. Senate?
    Mr. Koh. The treaty is the most obvious way. And as you 
know, we have an extensive constitutional process for making 
treaties part of our law and then the supreme law of the land 
under article 6 of the Constitution.
    There is also a body of law known as customary law, 
customary international law, which is determined by looking at 
the practice of states followed from a sense of legal 
obligation. In certain interstitial cases, that can be part of 
what Federal courts have called Federal common law, and that 
has been held by repeated Supreme Court decision going back to 
the 1900s.
    The Chairman. Well, perhaps you could share with us sort of 
in practical terms how you think the understanding of and 
recognition of some of this--of the international rules of the 
road would affect, for instance, dealing with the Somali 
pirates or swine flu, two current examples?
    Mr. Koh. Those are two excellent examples, Senator, of 
where international law is not the problem. It is the solution. 
And if we don't have international law, we have no solution.
    You do not have a national law that can address the problem 
of pirates off the coast of Somalia. What we need is an 
international regime, which has been created. Such a regime now 
involves U.N. Security Council resolutions, a multinational 
naval deployment force, a contact group that meets with 
Europeans and Africans.
    Secretary Clinton announced a four-part strategy for 
addressing this, including private-public partnerships. There 
have been prosecutions in courts both in Kenya and most 
recently an indictment brought in the New York Federal court. 
And so, pirates are an issue. It is a global challenge. And to 
address it, you need global law.
    Swine flu, the same. We have a World Health Assembly. We 
have international health regulations. We have an executive 
committee, which is considering the question of whether there 
is a public health emergency of international concern. And all 
of these issues can only be addressed by international 
cooperation within a framework of law. Again, international law 
is the solution, not the problem.
    The Chairman. Some make the argument that that might 
challenge, that acceptance of that international law might 
undermine our sovereignty or our national security. Could you 
address whether there is any way in which you believe that can 
occur?
    Mr. Koh. If there is a challenge to our sovereignty, it 
should be protected by the way in which we engage those 
regimes. Obviously, we can't enter treaties that violate the 
Constitution. The Constitution is the controlling law. 
Obviously, we have to agree only to international commitments 
that we can keep and that protect our foreign policy interests.
    It is not a one-size-fits-all. It has to be done on a case-
by-case basis. But I think the point that you made, which is so 
important, Senator, is our sovereignty in an age of 
interdependence doesn't mean staying out of these regimes. It 
means engaging with them within a framework of law and making 
them serve our national interests.
    The Chairman. Thank you very much, Dean Koh. I appreciate 
it.
    And Senator Lugar, I am going to turn the gavel over to you 
and--I think because both of our Senators have another thing 
they have to go to after a while.
    Thank you very much.
    Senator Lugar. We will do our best.
    The Chairman. Senator, you are a proven act in this city. 
[Laughter.]
    Senator Lugar [presiding]. Mr. Chairman, I want to start by 
bringing at least to the attention of our nominee what seems to 
be the crux of much criticism. This may not be the most 
specific or dramatic quote, but Time magazine published an 
article by Massimo Calabresi on Friday, April 24 in which he 
says, ``The battle began in late March when Fox News 
firestarter Glenn Beck said Harold Koh, Obama's nominee to be 
the State Department top lawyer, supported Muslim sharia law. 
`Sharia law over our Constitution,' Beck said in amazement.
    ``When that unlikely charge was debunked, Beck switched 
tacks and asserted that Koh, the outgoing dean of the Yale Law 
School and a former official under President Reagan and 
Clinton, wanted to subjugate the U.S. Constitution to foreign 
law.
    ``All of which would be fairly standard ratings-chasing 
melodrama except that the prominent members of the GOP, like 
Karl Rove and former U.N. Ambassador John Bolton, began signing 
onto versions of Beck's critique. At that point, conservative 
heavy hitters, including former Solicitor General Theodore 
Olson and Clinton tormentor Ken Starr, spoke up in favor of 
Koh. The dispute soon spread to the blogosphere, and 
Republicans across the country took sides, calling each other 
`fruitcakes' and `windbags.'
    ``With a committee vote on Koh's controversial nomination 
coming Tuesday, both camps are lobbying Senators in what has 
become a proxy fight for the Republican Party's approach to 
life in political exile.''
    Now without going into the problems of the Republican Party 
any further, there is some substance to this type of atmosphere 
that has been created not only in the blogosphere, but in Time 
magazine and elsewhere. And as you are aware, Dean Koh, from 
our own conversation, while you recognize and are not ultra 
sensitive to the fact that you are reading unusual criticisms 
of your record and your outlook, particularly along the lines 
that Senator Kerry has approached in a much more refined manner 
than this particular quote, this is a source of concern for 
many Americans.
    There are many Americans, as we have treaties coming before 
this committee, who are very suspicious of international law, 
particularly obligations the United States undertakes with 
regard to other nations. And that usually is the substance of 
treaties. This is why in my opening statement I suggested, 
respectfully, that as the President approaches treaties, your 
consultation with our committee will be of the essence early on 
and frequently.
    We have had such consultation in the past when there have 
been very substantial treaties. For example, following the 
problems of our country with the former Soviet Union, President 
Reagan appointed an arms control observer group of the 
leadership of the Senate in both Republican and Democratic 
parties headed by Robert Byrd and Robert Dole, who went with 
many of us to Geneva, Switzerland, in 1986.
    The treaty didn't happen right away. But President Reagan 
surmised quickly that we had not been through a treaty with the 
Soviet Union before. And as a matter of fact, when one finally 
came to the fore about 3 years later, a two-thirds majority was 
obtained with majorities in both parties who had had sort of a 
3-year study period of what this meant in terms of 
international law.
    How do you enforce all of this? What does it mean to 
Soviets as opposed then to Russians who came along after the 
Soviets? And these are always problems. We have gone through 
this with regard to the treaty on nuclear material with India 
in the past year, a very complex situation for many of us who 
are in the nonproliferation camp to say why is India gaining 
leave from certain obligations other countries have had to 
meet?
    And nevertheless, President Bush felt that that 
relationship was tremendously important politically and 
strategically. India is a very large country. And whether it 
signed onto the nonproliferation treaty or some of those 
aspects or not, he felt was less essential. Whereas, many who 
are more legalistic about it felt this is very essential, sort 
of first things first.
    I mention these pragmatic situations because this is not 
the only advice that you will be asked for from colleagues in 
the State Department, but it really gets to the heart of the 
matter in terms of essential relations of our country in terms 
of our strategic security. And so, I mention all of these 
things because you have been involved in discussions of these 
in previous roles in the State Department and, I suspect, 
informally even as dean of the Yale Law School now.
    But would you speak again to the problems as you see 
pragmatically regarding international law, the kind of advice 
you must give, in this case as a political appointee, as one 
who is going to be dealing with Republicans and Democrats, who 
is going to need two-thirds majorities for significant changes 
in international law which we are debating?
    Mr. Koh. Senator, that is a very thoughtful question. Thank 
you for reviewing the cultural history of my nomination, which 
has been interesting for me to observe myself.
    I would say that the key point which you make is that we 
cannot engage global challenges without global commitments. 
Someone who is in the business world might want to avoid making 
contracts because you would be then utterly self-sufficient. 
But if you didn't make contracts in which you have traded 
something for something else, you couldn't accomplish much in 
this world.
    And the same goes for making agreements. And you yourself, 
Senator, have been a great leader in this area, and in the 
nuclear area in particular, these tremendously important 
agreements and some more of which are coming before this 
committee have posed these issues.
    The only solution, which I have written about in my own 
academic writing, is a partnership between the Congress and the 
President. You use the word ``a power shared'' in your opening 
remarks. It was actually the first title of my book, the 
National Security Constitution. Then they forced me to change 
it away from that to ``A Power Shared,'' which now allows you 
to use that title.
    But I think that is the basic idea, that our Constitution 
requires that the foreign affairs power be a power shared. You 
can't get a two-thirds vote for a treaty without a significant 
number of members of the opposing party supporting the 
activity.
    So that requires any--what is required in any good 
partnership--consultation, respect, honesty, and close working 
together. And then the partnership extends not just between the 
executive and the legislative branch, but the partnership 
between the United States and our treaty partner to make sure 
that we are on the same page.
    And the basic theme of all of my writing is that a 
partnership between the President and Congress protects our 
foreign policy and supports our Constitution and that a 
partnership with our allies done well, correctly, within the 
law protects our sovereignty and makes us safer.
    Senator Lugar. I thank you very much. And I thank you again 
for your response to the 40 questions that I submitted to you, 
which I felt comprised some of the most controversial questions 
that could be asked.
    Mr. Koh. They were helpful, Senator. It was like a test----
    Senator Lugar. I asked you to put them in writing before we 
came to this hearing.
    Mr. Koh. I am used to taking exams in May, Senator. So it 
came a little earlier this year.
    Senator Lugar. Very well.
    Senator Dodd.
    Senator Dodd. Thank you very much, Senator Lugar.
    It is possible that the question I will ask may have been 
one that was submitted by Senator Lugar, and I should have 
looked at your questions and answers before asking this. So 
maybe it has already been addressed, but let me raise the issue 
of the International Criminal Court with you, if I can, Dean 
Koh.
    We currently have, as you know, I think the first case 
where a head of state has been indicted by the ICC in the case 
of Omar al-Bashir of Sudan. We in this country have taken a 
very--at least historically a position of nonparticipation in 
the ICC. And certainly while the previous administration had 
very strong feelings about the head of state in the Sudan--I 
don't want to suggest that they in any way were not deeply 
concerned about the atrocities committed under the leadership 
of the Sudan--but were very opposed to the idea of United 
States participation in the International Criminal Court.
    And I wonder if you might share with us your views on 
whether or not we should, as a nation, become a more active 
member? And if so, what conditions should we, as a nation, 
place on our participation in the court in the coming years?
    And again, I know, because we have talked about this a 
great deal, and I know you know, that in 1945 and 1946, my 
father was the associate executive counsel under Robert Jackson 
at the Nuremberg trials. And that experience was a life-
altering experience for him and set in many ways the moral tone 
for about 60 years or more in terms of our nation being the 
only nation to really actively participate or at least actually 
support, I should say, that tribunal.
    While the Soviets and the British and the French, 
obviously, were very engaged, it was the leadership of the 
United States, more so than anything else. The greatest 
advocate of the trial was Henry Stimson, the only Republican in 
Roosevelt's Cabinet, the Secretary of War, I might point out. 
It was rather ironic in a way, but nonetheless, he was very, 
very supportive of the Nuremberg trials.
    So I wonder if you might share with us your views on the 
ICC?
    Mr. Koh. Thank you, Senator.
    As you know from my work at the Dodd Center, the Dodd 
Center at the University of Connecticut on Human Rights is in 
some sense a tribute to a man, your father, but more 
fundamentally, the review of a history of an idea with which 
the United States has tried to engage, which is international 
justice as a basis for supporting peace and security.
    Indeed, President Clinton, Bill Clinton went to the Dodd 
Center in 1995 and called for an international criminal court, 
if it could be designed in a way that would serve our national 
interests.
    At the Rome conference in 1998, the United States decided 
to not sign the treaty because of concerns about whether 
American servicemembers would be subjected to the jurisdiction 
of the court unfairly. But by the end of the Clinton 
administration, December 2000, the Clinton administration had 
worked back to the notion of signing the treaty with 
ratification in the future, it was hoped at the time, because, 
ultimately, international justice could be used to serve our 
interests.
    The last 8 years have really led to two policies. An 
announced policy of hostility to the court, but then a de facto 
policy which, as you have described, could be described as 
coexistence with the court. And indeed, the previous legal 
adviser to the State Department under President Bush, John 
Bellinger, said that the United States has accepted the reality 
of the court. And so, we permitted the Darfur referral to go 
forward.
    Now there are a set of issues facing the new administration 
how to reengage with the court at a time in which the 
prosecutor, Luis Moreno-Ocampo, has gotten approval to proceed 
against the sitting head of state of Sudan, Mr. Bashir. It is a 
complicated situation in which international justice, I 
believe, could play an important role in bringing a better 
outcome in Sudan than we have now.
    On the other hand, I don't think that we should reengage 
without fully protecting American interests. So in my answer to 
Senator Lugar's question on this issue, I identified a series 
of issues that would need to be examined. Whether the so-called 
unsigning of the treaty in 2002 should be reexamined. How to 
make sure we stay within the framework of the American Service 
Members Protection Act. Do we engage with the 2010 conference 
on the definition of the crime of aggression? Are there ways to 
support the prosecutor without running afoul of various 
restrictions? All of these need to be addressed.
    If I am confirmed, I would be delighted to participate in 
these conversations. There are many others in the 
administration who have lots of knowledge, particularly those 
in the military. I would very much look forward to engaging 
with them and hopefully having another chance to come back 
before this committee to discuss the next steps and to consult 
with all the members of this committee about your particular 
concerns.
    Senator Dodd. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Lugar. Thank you very much, Senator Dodd.
    Senator Corker.
    Senator Corker. Thank you.
    Welcome. I have heard from numbers of people that I respect 
regarding their respect for you, and I know of your tremendous 
accomplishments. As I have mentioned to you in our office, it 
is pretty incredible the background that you have and the many 
things that you have done.
    That, combined with my sort of presense that elections have 
consequences and that a President ought to have the ability to 
appoint mostly people that they wish, I expected the meeting 
that we had in our office to go quite well. And to be candid, I 
left there somewhat disappointed, and I think you sensed that 
when you were in the office.
    And I told you I would not blindside you, but I would like 
to--and I am not going to do that. But I would like to just 
sort of go back over a few questions. And again, I ask these 
questions out of respect for both your life story, which I find 
to be pretty incredible, and also the many accomplishments that 
you have been able to achieve in your life.
    And I will just start with the first question we asked. Do 
you believe that the President has the power to invoke 
customary international law to preempt State law?
    Mr. Koh. I don't know of an occasion in which the President 
has done that. But I do think that the President has, on 
occasion, invoked customary international law to declare a 
uniform rule. For example, the 12-mile limit was declared by 
President Reagan offshore.
    Now there was no contrary State law there. And so, I don't 
know of a case in which the State law was preempted.
    Senator Corker. I quoted a press statement that I think all 
of us have probably read, and they quoted you--maybe fairly or 
unfairly, I don't know--regarding some remarks you made in 
Berkeley in 2004, and I will just read this so that I can get 
the quote just right.
    You said, ``Several nations whose disobedience of 
international law has attracted global attention after 9/11, 
most prominently North Korea, Iraq, and our own country, the 
United States of America. And for shorthand purposes, I will 
call these countries the axis of disobedience.''
    I am just wondering if you might explain to us exactly what 
you were thinking?
    Mr. Koh. Well, Senator, I am delighted to, and I am 
grateful to you for having this conversation.
    As you know from my life story, there is no way that I 
would consider the United States and North Korea in some way to 
be morally equivalent. I have visited North Korea. I was 
appalled by the conditions there. I spoke out about the human 
rights abuses, and I consider them to be one of the great 
international law violators in the world.
    Nevertheless, I believe that if we can bring them into the 
community of nations and engage them in international law, we 
could be safer. The point I made in the article was a simple 
one. It is harder for the United States to encourage countries 
that are lawless to obey if it can itself be accused of being 
lawless.
    They can turn around and charge us with being part of their 
same axis of disobedience, and that is not the kind of company 
that we want to keep. And I was encouraging us to see ways in 
which the United States could be on the right side of the law 
so that it could exert the kind of moral leverage on other 
nations who are so radically out of compliance with 
international law as North Korea.
    Senator Corker. And in which areas would you refer to us 
being lawless as a country?
    Mr. Koh. Well, what I was referring to is ways in which the 
United States I said I felt had fallen below international 
legal standards, for example, with regard to torture of 
detainees, with regard to treatment of detainees on Guantanamo.
    Senator Corker. Was torture of detainees in the public 
sphere in 2004?
    Mr. Koh. It very much was, Senator.
    Senator Corker. OK. OK, so in the areas of torture and what 
other areas did you deem us to be at that time lawless?
    Mr. Koh. A failure to respect the Geneva Conventions, which 
I thought was damaging and dangerous to our own troops, who 
need the protections of the Geneva Conventions.
    Senator Corker. OK. As I was watching the body language 
when Senator Kerry was asking you questions, I noticed that in 
his first question, which had to do with the rub between 
international law and U.S. law, it appeared to me that you were 
reading the answer. And I am just wondering if that is an area 
that you have tenuously had to walk down because of previous 
comments that you have made publicly?
    You know, you are the dean of Yale Law School and probably 
one of the most knowledgeable people to ever come before this 
group as it relates to law. But it did appear to me that you 
were reading that answer, and I am just wondering if you might 
speak to that?
    Because typically when people do that, they are sort of 
tight-roping down an issue that they are concerned there may be 
some baggage on. Maybe I saw wrong?
    Mr. Koh. Senator, I respect you so much I wanted you to 
hear it exactly as I could put it most cogently. But I am happy 
to reply again now. My view----
    Senator Corker. Well, is that an area then that you have 
felt some degree of liability as it relates to taking on this 
position?
    Mr. Koh. Not at all, Senator. I stand by everything I have 
written. I have exercised my free speech rights. I am an 
academic. The job of an academic is to put ideas into the 
marketplace of ideas.
    But I have also been a Government official, and when I am a 
Government official, I act in a role. I play the role of 
counselor to a client. The counselor to the client looks to the 
client to give direction and to try to get that person to serve 
the law and the best interests of the country.
    So that is exactly what I would say the question that 
Senator Kerry asked me was about the role of a judge applying 
foreign law. I am not nominated to be a judge. What I am being 
nominated to be is the general counsel of the State Department.
    And in that job, Senator, you have to know foreign law. It 
is not controlling, but you need to understand it. It would be 
malpractice for me to be general counsel of the State 
Department and not have a firm understanding of foreign law and 
how it affects American interests.
    Senator Corker. Well, just for the record then as we close 
out, I have actually sensed among nominees that the area that 
we need to be most concerned about are those that are in the 
legal areas because, especially in your case, you are giving 
advice to someone that would be otherwise a layman in the areas 
that you would be advising them. And your point of view is very 
important, and the way you direct the law staff.
    I was talking to you about a similar type thing in our 
office that there is no use getting into today. So I have 
actually sensed that, actually, if an administrator can sort of 
function OK, that is of lesser concern than some of the 
judiciary and some of the areas of legal where you are giving 
advice to someone in an area that they really don't know much 
about. And certainly, international law is something that most 
people are not experts in. You certainly are, and I respect 
that.
    But I guess I would ask just a final question for the 
record, and that is that do you have the ability--because I 
know you have shared some personal thoughts that might not 
fully line up with everybody here. And certainly, no one could 
do that. But can you separate those personal views that you 
have from just giving absolutely neutral advice as it relates 
to the law to the Secretary of State and those involved?
    Mr. Koh. Senator, I have been very inspired by the words of 
Herman Phleger, who was the legal adviser for John Foster 
Dulles. He said the job of the legal adviser is to speak law to 
power.
    And I should say that the President of the United States, 
President Obama, is an outstanding lawyer. The Secretary of 
State Hillary Clinton is an outstanding lawyer. The Deputy 
Secretary of State Jim Steinberg is an outstanding lawyer, both 
from our law school.
    They will challenge the legal views that would be offered 
by the person in my position, if confirmed, and the lawyers in 
the office, as they should, for the purpose of getting the best 
possible legal advice. This is the greatest country in the 
world. You need the greatest legal, the best legal advice that 
could be given. And if confirmed, I would intend to give that 
advice.
    Can I separate my role? I have in the past. That is the job 
for which I have been nominated, and that is what I would 
intend to do.
    Senator Corker. Thank you.
    Senator Lugar. Thank you very much, Senator Corker.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    I am also, of course, very pleased to be here in support of 
my old friend, Harold Koh, nominee to be legal adviser to the 
State Department. I have known Dean Koh for more than 30 years, 
dating back to our time together at Oxford University.
    So, of course, it gives me a great pleasure to see him here 
and nominated. But I assure you, Dean Koh is an excellent 
choice for this position, regardless of how long I have known 
him. Harold is one of the most ethical and hard-working 
individuals I have ever met. He also happens to be one of the 
brightest legal minds in the country.
    Dean Koh has dedicated his life to upholding the rule of 
law and strengthening American values because, as he said in 
his testimony, he believes that obeying the law is both right 
and smart. So I have only the greatest respect for Dean Koh 
and, of course, want to reiterate what the chairman said--the 
incredible number of letters of support that have poured into 
my office over the last few weeks from a wide range of people 
that includes Ken Starr and Rabbi David Saperstein, these 
letters are a critical testament not only to how qualified Dean 
Koh is for this position, but to his ability to work in a 
nonpartisan manner in defense of the Constitution and to 
promote the rule of law and human rights.
    And these are some of the core values on which this country 
was founded, and they have been an important source of our 
country's power. Our ability to influence other countries to 
achieve our international and national security priorities 
actually depends on a principled approach to foreign policy, 
which includes a commitment to these principles.
    And so, as I listen to some of the certainly appropriate 
questioning already, I want to just observe--especially with 
regard to Senator Corker's question--first of all, listen to 
the way Harold Koh responded to the question about customary 
law. He gave a crisp answer. He gave a specific example of 
where President Reagan actually invoked customary law, and I 
want to note for the record there was no rejoinder. There was 
no followup question because the answer was typical Harold 
Koh--precise, to the point, and effective.
    Second, when the issue came up of the question of comments 
made with regard to the so-called axis of disobedience, the 
notion that somehow Harold Koh would cite these examples as a 
way to denigrate the United States is, frankly, absurd. What he 
was doing is a great service to us, to say that when we somehow 
get in a category that allows people in other countries to 
compare us to those countries that are such bad actors, it is 
at that moment that we pay a real price. And we have paid that 
price, Mr. Chairman. We have paid that price in this world.
    So Harold Koh is warning us in a patriotic way that we 
cannot allow ourselves to even have the perception of that, let 
alone the reality, and I think that is a service. And, frankly, 
a distortion of his words to suggest that he really believes 
that we belong in that category.
    And finally, the notion that somehow that Harold Koh 
presumably reading an answer regarding the sharia law issue--
you know, I just read part of my statement. That doesn't mean I 
didn't mean it. That doesn't mean I don't get it. And I had 
Harold Koh respond to me several times without any notes, 
eloquently indicating that, of course, he doesn't believe that 
sharia law could control in our country.
    So, frankly, I am pleased that some of these things are 
coming up because they show the weakness of the criticisms that 
have been leveled toward this excellent nominee.
    Mr. Koh, what is your position on the appropriate 
relationship between the executive and legislative branches 
when it comes to foreign affairs decisionmaking?
    Mr. Koh. Well, as I said in discussing this issue with 
Senator Lugar, the Constitution's framework while defining the 
powers of Congress in article 1 and the President in article 2, 
creates a framework in which the foreign affairs power is a 
power shared. Checks and balances don't stop at the water's 
edge.
    It is both constitutionally required, and it is also smart 
in the sense that the President makes better decisions when 
Congress is involved. If they are in at the takeoff, they tend 
to be more supportive all the way through the exercise.
    Senator Feingold. And could you say a little more, Dean 
Koh, about the main themes of your scholarly writings and your 
thoughts on the main differences between what it is to be a 
scholar versus a lawyer?
    Mr. Koh. My scholarly work is extensive. I have said many 
things. The thing about sharia law, as you pointed out, is not 
something that I said. So I guess that if you are looking for 
something to disagree with, you need to look to something that 
I didn't say.
    What I did say is very simple. Obeying the law is right and 
smart, both domestically and internationally. It is smart in 
the sense that it gives you the kind of moral legitimacy, the 
soft power that you need to influence and lead on a 
multilateral basis.
    So this means that with regard to domestic affairs, the 
more the President can work with Congress, consult and get the 
value of Congress's experience, the more likely that that 
outcome will be sustainable over time. A war that is begun with 
congressional support will maintain that support longer than 
one that is started without congressional approval.
    At the international level, the arguments I have made are 
the same. That working with other countries, agreeing on how we 
ought to operate within a framework and then acting within that 
framework of law protects our sovereignty in the sense of 
allowing us to assert our interests within an international 
framework and can make us safer.
    There are so many global challenges, Senator. Every day 
there is a new global challenge, whether piracy or swine flu or 
economic crisis. On each of those, the United States cannot 
address that problem alone. It needs to cooperate. And in 
cooperating, it needs to cooperate within a framework of 
international law. If we don't have that framework, we are 
going to be less safe, and we won't be able to protect our 
sovereignty.
    Senator Feingold. Thank you, Dean.
    Thank you, Mr. Chairman.
    Senator Lugar. Thank you very much, Senator Feingold.
    Senator Isakson.
    Senator Isakson. Thank you, Mr. Chairman.
    Again, it is a pleasure to meet you and your lovely family.
    Mr. Koh. Thank you.
    Senator Isakson. After we met the other day in my office, I 
remember telling my wife over the phone that night that I may 
have talked to the most skillful attorney I had ever talked to.
    And then I read an April 27 article in Newsweek, which 
described you as the following. ``A tweedy, brainy legal 
scholar who writes brilliant law review articles that are 
carefully reasoned, if more or less impenetrable to 
nonlawyers.'' [Laughter.]
    I then realized why I was so impressed. I am a nonlawyer. 
And so, I thought that was a good description.
    But there are some hard questions I want answered. Because 
of the hard questions that are out there, our advice and 
consent is our responsibility not only to the Constitution, but 
to the constituents that we represent.
    In that same article, it says that, ``Koh has campaigned to 
expand some rights guaranteed by the U.S. Constitution and 
perhaps shrink some others, including the first amendment's 
guarantee of free speech, to better conform to the laws of 
other nations. He has, for instance, pushed for a more 
expansive view of what constitutes cruel and unusual punishment 
under the eighth amendment.''
    Would you address those two questions?
    Mr. Koh. Senator, first, for the record, let me say I don't 
own any tweed jackets. [Laughter.]
    But again, that article that you mentioned is one in which 
I had trouble recognizing myself. I believe that the 
Constitution is controlling law. I am not on a campaign. My job 
is to try to understand how the Constitution should be 
interpreted.
    There is certainly no campaign to shrink any provision of 
the Constitution. The claim that was being made was that where 
the United States has a free speech tradition that is different 
from the free speech tradition of another country, how do we 
enter a treaty in which that free speech might be implicated?
    The answer is quite simple. When the United States ratified 
the genocide convention, there was a provision about incitement 
to genocide being a crime. Then Assistant Attorney General 
William Rehnquist, later Chief Justice, recommended a 
reservation to protect America's first amendment interests. So 
we entered the treaty, and our first amendment rights were 
unaffected.
    On cruel and unusual punishment, as I gave citations in a 
specific question asked by Senator Lugar, since 1958, the U.S. 
Supreme Court has, in a case called Trop v. Dulles, said that 
you decide what is unusual, for the cruel and unusual 
punishments clause, by looking at evolving standards of human 
decency, not just standards within a particular part of the 
United States.
    In a case called Atkins v. Virginia, the case raised the 
question whether the State of Virginia could execute a person 
who had mental retardation, and the brief that I filed on 
behalf of a group of distinguished diplomats, including Tom 
Pickering and Madeleine Albright, simply said the United States 
is the only country in the world that engages in this practice. 
A minority of States within the United States engage in this 
practice. And that is unusual.
    If we are on the only nation to do it, it is unusual. And 
the words of the Constitution say cruel and unusual punishments 
should be averted. So I don't consider that a campaign. I think 
that was a following the precedents of the U.S. Supreme Court 
and following the words of the Constitution itself.
    Senator Isakson. This is a hard question, but I think it is 
one that needs to be answered because I listened closely to 
your answers, and you referred to your role and your job as an 
adviser to the Secretary of State, a legal adviser to the 
Secretary of State and the fact that you are going to be asked 
to opine on what your opinion is based on your beliefs of the 
law and your beliefs.
    There has been a lot of controversy in the Senate in the 
past 2 weeks over the opinions that were given by advisers to 
the last administration with regard to torture, including some 
who have called for the prosecution of those lawyers who were 
asked to opine on various treatments that ended up in 
interrogation.
    Do you think a lawyer hired by the Government, confirmed by 
the Senate, asked for his or her opinion to advise the 
administration in their role should subsequently be held 
legally prosecutable for having given their very best opinion 
and judgment on that question?
    Mr. Koh. Well, Senator, as you know, the decisions about 
prosecution are made by the Attorney General, not by the 
Secretary of State. As you also know, as someone who is seeking 
confirmation to be a lawyer for the Government and to seek 
confirmation to supervise an office of almost 200 lawyers, I 
have to be extremely concerned about whether someone who gives 
legal advice in a certain circumstance will be prosecuted.
    If by taking this job, I am buying myself lawsuits and 
prosecutions, obviously, that wasn't part of the original plan.
    Senator Isakson. You didn't sign up for that.
    Mr. Koh. That having been said, there is a process 
unfolding which I am not a part of. If confirmed, I might be a 
voice, but one of many voices.
    The lead voice obviously is that of the President. The 
President has indicated that these decisions are in the hands 
of the Attorney General. The Secretary of State repeated in 
testimony last week before the House Foreign Affairs Committee 
that the President has laid out some basic guidelines, and I 
assume that those will evolve.
    Senator Isakson. One last question, and again it is a 
question that has been written about your opinion regarding 
President Bush's decision to go into Iraq, which I have not 
read precisely. So I don't know, do you think that President 
Bush violated the law or violated his authority in doing that?
    Mr. Koh. Well, I wrote about two decisions by two different 
President Bushes to go into Iraq. In 1990, I said that 
President Bush 41's decision to do Desert Storm was lawful 
under domestic law and was lawful under international law 
because it was approved by a resolution of--a joint resolution 
of the Congress and by a U.N. Security Council resolution.
    The other intervention in Iraq, which happened in 2003, I 
had no challenge to the domestic legal basis of it. But in 
looking closely at the U.N. Security Council resolutions that 
were invoked, I found that the wording of those resolutions 
didn't give the necessary support under international law.
    I think the consequence of that was that the intervention 
into Iraq in 2002 did not have the kind of broad support that 
we would have preferred, and that is the only point that I made 
in that article.
    Senator Isakson. Thank you for your time and attention.
    Mr. Koh. Thank you, Senator.
    Senator Lugar. Thank you very much, Senator Isakson.
    Senator Shaheen.
    Senator Shaheen. Thank you, Mr. Chairman.
    Dean Koh, thank you very much for being here and for your 
willingness to consider public service again.
    Mr. Koh. Thank you.
    Senator Shaheen. And I very much appreciate your pointing 
out the distinction between being an academic and being a 
public servant, having worked in academia for a while--sadly, 
at Yale's rival institution, Harvard. I do appreciate that they 
are very different roles and am reassured by your pointing out 
that if you are serving in a public position, you would treat 
that as such.
    The State Department has turned to private security 
contractors in Iraq and Afghanistan because of insufficient 
numbers of State Department security personnel in some cases. 
Is it your understanding that foreign governments have legal 
jurisdiction over contractors that operate in those countries?
    Mr. Koh. Well, Senator, first let me thank you for your 
comments about the role of an academic. As an academic, you 
speak in your own voice. When you are in the Government, you 
are one of many voices working as part of a team. And what you 
may personally think may be factored into the equation, but the 
outcome maybe quite different.
    With regard to the security contractor issue, Senator, the 
issue has obviously arisen in Iraq, where there has now been a 
change of legal status so that at this moment, security 
contractors are under the jurisdiction, civil and criminal, of 
Iraq. There has been, of course, the famous case about Nissour 
Square, which was a great tragedy. There has been a prosecution 
brought against employees of Blackwater there under the so-
called MEJA, Military Extraterritorial Jurisdiction Act.
    That case is currently before a court, and there has been a 
challenge made there to jurisdiction. But the district judge 
has allowed that case to go forward.
    So I think that you are absolutely right about the overall 
problem, which is that an effort like Afghanistan and Iraq 
involves many, many, many people. And to ensure that those 
individuals are bound by the same rules of law that govern U.S. 
Government officials in those circumstances is a complicated 
jurisdictional issue.
    And that is precisely why knowledge of foreign law and 
international law is necessary for us to try to sort these 
issues out. And if I am confirmed, I look forward to working 
with you on that issue.
    Senator Shaheen. Thank you.
    Some have argued that the Geneva Conventions, which set the 
standards for treatment of prisoners of war and noncombatants, 
don't apply to members of the Taliban or al Qaeda. Do you share 
that view? And if not, would you assume that the conventions 
apply to both groups?
    Mr. Koh. Well, it depends, Senator, very much on the 
context in which the issue is being addressed. The Supreme 
Court held in the Hamdan case that common article 3 of the 
Geneva Conventions sets minimum standards for those who are 
being detained on Guantanamo, and that is now controlling law 
of the United States.
    On other issues--for example, general treatment questions--
on 2 days after he took office, President Obama issued an 
Executive order, which called for a 30-day review of conditions 
on Guantanamo to ensure compliance with the Geneva Conventions, 
and the other Executive orders issued on that day incorporated 
compliance with the Geneva Convention into the Executive order.
    This, by the way, is an example of what I was calling 
transnationalism. These are rules of U.S. law as embodied in an 
Executive order. So it is a description of something that has 
been happening and will continue to happen.
    Senator Shaheen. Thank you.
    Senator Lugar. Thank you very much, Senator Shaheen.
    Senator Barrasso.
    Senator Barrasso. Thank you very much, Mr. Chairman.
    Dean Koh, thank you for taking the time to visit with me. I 
congratulate your mother on having two sons--that is a 
remarkable accomplishment--two sons nominated at the same time 
to serve our Nation. So thank you for your commitment and your 
service.
    I want to thank your family and congratulate all of them 
who have been so instrumental in your success.
    Senator Isakson talked about constitutional issues. Mr. 
Koh, in your opening statement, you talked about defending our 
Constitution. I would like to switch from what Senator Isakson 
discussed regarding the first amendment. I want to talk about 
second amendment constitutional issues.
    You had argued that the United States could support global 
gun control without committing itself to a regime that would 
affront legitimate second amendment concerns. I wanted to talk 
to you about these concerns in the context of multilateral gun 
control treaties. Please explain your views on what are 
legitimate second amendment concerns and what concerns you 
might consider illegitimate second amendment concerns.
    Mr. Koh. Well, thank you, Senator. And thank especially 
your kind words about my mother. As you know, she is hoping 
that if both of her sons get confirmed, that will be her 
Mothers Day present.
    The point you raise has to do with the international effort 
to regulate gun transfers, firearm transfers across borders. It 
is an effort which is at a very early stage, and let me make 
clear the goal is to prevent child soldiers in places like 
Somalia and Uganda from having AK-47s transferred from the 
former Soviet Union. It is not to in some way interfere with a 
legitimate hunter's right to use a hunting rifle in a national 
or State park.
    At the time that the issue first arose, some second 
amendment concerns were raised that it might interfere with the 
right to bear arms. In an article I wrote, I pointed out that 
exports of arms have always been subject to regulation, the 
Arms Export Control Act. But it did not interfere with domestic 
possession of these arms, which is obviously a domestic 
concern.
    Subsequently, the Supreme Court, in a case called Heller, 
reaffirmed and strengthened the second amendment position. That 
was before--that came after I wrote the article. I have not 
redone the analysis of the article in light of the Heller 
decision.
    But I would say again that a regime that is designed to 
regulate illegal and illicit transfers of certain kinds of 
assault weapons to foreign countries, which are already 
regulated, is very distinct from the kinds of concerns that 
animate the second amendment, and I do not see that there would 
be a conflict. If there were, obviously, the Constitution would 
control. And obviously, if confirmed, I would be consulting 
with members of this committee on how the core interests of the 
United States should be protected.
    Senator Barrasso. Well, you raised the Heller case and the 
decision by the Supreme Court because in a 2003 Fordham Law 
Review article you wrote that ``revisionist'' readings of the 
second amendment give greater weight to the individual's right 
to bear arms. Could you discuss that a little bit?
    Mr. Koh. Yes, I was referring to writings by my colleague 
Akhil Amar of Yale University and Professor Laurence Tribe of 
Harvard.
    The question that I was asking was whether they are finding 
more protection, constitutional protection for individual right 
to bear arms gave the second amendment a different meaning than 
it had been given in the case of United States v. Miller, which 
was the prior Supreme Court interpretation of the issue. I 
think that the Supreme Court's decision last term went even 
beyond the statements of those scholars with regard to the 
second amendment.
    Nevertheless, I don't think that the issue will affect the 
treaties that are under discussion. There are two treaties. 
There is a Latin American treaty, which last week the President 
announced that he would support. There has been discussion of 
an arms trade treaty, but there is no text. And so, it is 
obviously premature to analyze whether it is constitutional or 
not until we see a text.
    Senator Barrasso. The Latin American treaty, which was 
signed by President Clinton in 1997, has not been ratified by 
the United States Senate. It would take 67 votes for 
ratification. The President described it as a high priority 
item for him.
    When you closely read the treaty, I know there are some 
issues that are very concerning to people that own guns in the 
United States, people that participate in gun shows, and people 
who reload their own ammunition. So I know that there are still 
significant concerns related to that specific treaty.
    So I would just like to ask you do you believe the second 
amendment protects the individual right of ordinary Americans 
to keep and bear arms? I mean, forget about the hunting part. 
Just to keep and bear arms unrelated to militia service?
    Mr. Koh. The decision of the Supreme Court in Heller is the 
law of the land. Obviously, I respect that. And to the extent 
to which those ideas are captured in that decision, yes, I do 
completely agree.
    Senator Barrasso. Will you commit to working with the 
Senate to ensure that any international agreement that the 
administration considers will not subvert our second amendment 
right to bear arms?
    Mr. Koh. I will go further than that, Senator. Any treaty 
that comes before this committee that raises a constitutional 
question, I will work with members of the committee, if 
confirmed, to ensure that those constitutional interests are 
protected, whether it is first amendment, second amendment, 
eighth amendment, or anything else.
    Senator Barrasso. Thank you, Dean Koh.
    Thank you very much, Mr. Chairman.
    Senator Lugar. Thank you, Senator Barrasso.
    Senator Wicker.
    Senator Wicker. Thank you.
    Dean Koh, I very much enjoyed our informal chat the other 
day. And like so many other members of the committee, I would 
observe that although I haven't known you, you and I do have a 
lot of mutual friends. And many of them have called with great 
endorsements of your candidacy and great admiration. And I 
respect that and consider that.
    Let me also just observe that I don't think you want to 
abolish Mothers Day. I don't think you want to impose sharia 
law in the United States. By the same token, I don't think 
there is anyone within the sound of my voice who believes that 
the United States can act unilaterally without some sort of 
international agreements and cooperations.
    And then, finally, before I get to my question, I would 
observe in response to Senator Kerry's statement about why your 
family left Korea, it seems to me that actually they left North 
Korea to escape an oppressive domestic law that didn't 
appreciate the rights of individuals there.
    Having said that, let me get to the question about the axis 
of disobedience. Surely you must have realized that that would 
be a provocative statement. And based on my conversation with 
you earlier, it is clear to me that that is your legal opinion. 
So the disobedience would be disobedience to international law. 
Is that correct?
    Mr. Koh. Yes, Senator. What I was saying there was that it 
is harder for us to get other nations to obey international law 
if we are ourselves perceived as disobeying international law.
    Senator Wicker. OK. Well, let me then follow up on Senator 
Isakson's point because he asked you about the United States 
decision to invade Iraq, and you answered in the context of an 
article that you wrote. But you and I had a conversation also 
in which we discussed this a little further.
    Clearly, your article suggested that President Bush 41 did 
better than President Bush 43, and I think that is a debate 
that certainly we can have. But I did understand your answer to 
my question in our private conversation to be, when pressed, 
that indeed our invasion of Iraq was a violation of 
international law. Is that a correct characterization of your 
answer to me last week when we visited?
    Mr. Koh. Senator, I did not quibble with the domestic legal 
basis for the intervention in Iraq in 2003, which was supported 
by a resolution of this Congress. What I did say was that the 
necessary legal authorization by the Security Council had not 
been secured and that, therefore, it put us in the awkward 
position of an intervention which was lawful domestically and 
unlawful internationally. That has, I think, created a problem 
in our gaining the support of other nations subsequently and in 
our efforts in Iraq.
    Senator Wicker. So, in your opinion, our invasion of Iraq 
was unlawful internationally?
    Mr. Koh. Yes.
    Senator Wicker. And so, let me then ask you this. You 
stated with regard to piracy, which we are going to have to 
deal with in this committee and in this Congress and in this 
administration, that there is no solution to piracy short of 
international law. Was that your testimony today?
    Mr. Koh. By its nature, piracy is an act that cuts across 
borders. Even if almost every country acts effectively against 
pirates, if one country does not, they can seek safe haven 
there. So it is a problem, a global problem that requires a 
global solution.
    Senator Wicker. Well, there is no question about it. But 
the troubling part of your answer, which I do believe was that 
there is no solution to piracy short of international law, does 
that mean that absent some international agreement, which we 
might or might not be able to obtain, that the United States, 
of its own volition as a matter of national defense, is 
powerless to take action against piracy? The only solution is 
to rely on the agreement of other countries?
    Mr. Koh. That wasn't my point, Senator. My point was that 
there are limits to how effectively we can act against pirates 
in the absence of the international legal framework. With the 
international legal framework, we are on the strongest basis, 
and that was the same point I made with regard to Iraq.
    Understand, Senator, the servicemembers in Iraq, the effort 
that is going on there is something which is of major concern 
to every American. There are many, many legal issues that would 
arise, if I were confirmed, that I would need to address, and 
my goal would be to act in the best interests of our country, 
our soldiers, and our interests in Iraq.
    That having been said, I do believe that the absence of the 
international law justification that I would have hoped to see 
in 2003 has left us in a weaker position, which is why I 
believe that with regard to pirates, it is very important to 
get an international legal framework organized so that we could 
marshal the most effective and acting using the maximum of what 
Secretary Clinton has called our smart power in this 
circumstance.
    There is no problem with doing it alone. It is just that it 
is not nearly as effective. If there are 193 countries in the 
world, one country can't stop all pirates.
    Senator Wicker. Let me ask you this. You remember when the 
nation of Israel attacked the Iraqi nuclear installation?
    Mr. Koh. At Osirak. Yes, Senator.
    Senator Wicker. Was that a violation of international law?
    Mr. Koh. Senator, that has often been cited as an example 
of a preemptive act of self-defense. In fact, it is often cited 
as the quintessential example of extending the basic principle 
of self-defense to one in which you are heading off a future 
attack. This is one of the items that I addressed in Senator 
Lugar's question for the record on this subject.
    Senator Wicker. In your legal opinion, Israel's action 
against the Iraqi sites was not a violation of international 
law?
    Mr. Koh. Senator, my view is that unilateral uses of force, 
when they are not in self-defense, should be avoided. Sometimes 
there may be no alternative. Sometimes a multilateral use of 
force can be organized in a way that puts our response on the 
strongest possible basis.
    I think that scholars can debate and do debate the 
lawfulness of the Israeli attack on the Iraqi nuclear reactor. 
Does it fit within the test put forward, which is that an 
attack be imminent, that the response be necessary and 
proportional? And people debate----
    Senator Wicker. And you are not prepared to give a 
definitive answer to that at this juncture?
    Mr. Koh. I don't have the information, Senator, that the 
Israeli officials had about what was the likelihood of an 
imminent attack before they made their decision. If I were 
confirmed, I would be in a position where I could ask for 
information, particularly in the context of being asked to give 
legal advice to the Secretary and to the President.
    Senator Wicker. One last thing, Mr. Chairman, if I might? 
Having an effective solution based on international cooperation 
is one thing. It seems to me a violation of international law 
is another thing.
    Is there a remedy out there for people in other countries 
to the alleged violation that the United States engaged in, in 
your legal opinion, of international law in invading Iraq? Do 
we need to be fearful of a remedy at law in some court because 
we violated international law, which in your opinion we did?
    Mr. Koh. Well, I don't mean to go to Latin in this 
circumstance, but the great Myres McDougal of Mississippi, who 
was a professor of international law at our law school, talked 
about the difference between jus ad bellum, which the law of 
going to war, and jus in bello, which is the law in war. So 
whatever may have been the defects of the lawfulness of the 
original intervention, if we conduct the war in a lawful 
fashion, those are the incidents for which there would be 
exposure.
    I don't know, Senator, of any exposure that we have for the 
original intervention. I will say that some of the difficulties 
the United States has had in obtaining cooperation in bringing 
about the Iraq intervention and the subsequent efforts to make 
Iraq an independent and democratic nation have been ways in 
which other nations have been responding to what they perceive 
to be our failure to cooperate within the framework of 
international law.
    Senator Wicker. Thank you very much, Mr. Chairman.
    Senator Lugar. Thank you very much, Senator Wicker.
    Let me ask if Senators have additional questions?
    Senator Feingold. Mr. Chairman, just briefly, if I may?
    Senator Lugar. Yes, Senator Feingold.
    Senator Feingold. I just want to review a couple of the 
items that have been discussed by my colleagues on the other 
side of the aisle because each of them highlights Dean Koh's 
commitment to law and following the law as opposed to a 
political view.
    First is the one that Senator Wicker just brought up. The 
issue of whether the Iraqi invasion in 2003 was lawful or 
unlawful under international law. Dean Koh clearly stated as a 
legal matter that under the international regime that had acted 
on this matter through the Security Council and otherwise, that 
this certainly appeared to be illegal under that regime.
    However, the dean has highlighted that there are 
situations--correct me if I am wrong. You are the dean. I am 
not. But I think under article 51 of the United Nations 
charter, there is the opportunity to act in cases of self-
defense.
    So his answer, when he talks about the regime that had been 
put forward by the Security Council, spoke to that regime. It 
did not preclude the possibility that in certain situations, 
such as the one you raised--the Israeli decision to take out 
the Iraqi nuclear plant--may well have been, as I understand 
the dean, within article 51.
    So I assume the analysis would be the situation in 2003 is 
one that could legitimately be put under article 51? My view, 
obviously, is that it could not. I take it that would be a fair 
statement of your view as well?
    Mr. Koh. My impression was that the conditions that existed 
at the time that led the Israelis to attack the Iraqi nuclear 
reactor were different from the conditions that existed which 
led the United States to engage in its international 
intervention in Iraq in 2003.
    There were Security Council resolutions. My reading of 
those resolutions were they authorized us to contain Saddam 
Hussein, not to go in and remove him. And it was after Security 
Council Resolution 1441, where some were pressing for an 
additional resolution and others were satisfied to go forward 
on the resolution that existed, and that disagreement has lived 
with us to the present day.
    Senator Feingold. Now going back to another subject that I 
think you and I and our friends started debating about 1975. 
There was one guy in the room who was asserting, a guy from 
Wisconsin, that the second amendment was an individual right. 
And not all of my friends agreed with me, but we debated it 
back and forth.
    And the dean here has acknowledged that for the first time, 
the U.S. Supreme Court finally ruled what I thought was right. 
In a close decision, where I filed an amicus brief with many 
from the other side of the aisle saying I believe it is an 
individual right.
    But I believe I heard you say that you have no doubt in 
your mind, despite the criticism that has been raised with 
regard to the Heller decision, that it is, in fact, the law of 
the land. Is that correct, Dean?
    Mr. Koh. Well, Senator, in 1975, you called this one better 
than I did. [Laughter.]
    Senator Lugar, you may not know that Senator Feingold's 
undergraduate dissertation was about the second amendment, and 
I think it was 400 pages long.
    Senator Feingold. Only 300. [Laughter.]
    With footnotes.
    Mr. Koh. He forced me to read it, which I did. And 
frankly----
    Senator Feingold. And fell asleep.
    Mr. Koh. No. I had no idea at the time that there was such 
an extensive basis. And over the years, I have watched as this 
particular approach to the second amendment has gained various 
academic adherence and then was adopted in good measure by the 
Supreme Court's opinion in Heller. So I think that it is a 
constitutional analysis which has carried the day.
    Senator Feingold. Finally, with regard to the death penalty 
in the cruel and unusual standard, obviously, many of us have 
our own views. And frankly, I have been very disappointed that 
the Supreme Court moved away from what I thought was a trend to 
declare the death penalty inherently unconstitutional. It was a 
great disappointment to me and something I wish would change.
    But I asked you in my office whether you believe that the 
death penalty as a general matter is permitted under the eighth 
amendment, and I believe you said that is clearly the law of 
the land. Is that correct, Dean?
    Mr. Koh. That is correct, Senator.
    Whatever my personal views about the death penalty might 
be, if confirmed, and if I took an oath to uphold the 
Constitution and laws of the United States of America, that 
would include the administration of the death penalty.
    Senator Feingold. Mr. Chairman, thank you for the 
additional time. I think what the dean, of course, has 
demonstrated here is he clearly understands his role as legal 
counsel is very different from that as an academic and would be 
a true adherent to our Constitution and our laws.
    Thank you, Mr. Chairman.
    Senator Lugar. Well, these additional questions gave the 
dean an opportunity to mention 1975 and your thesis. And so, 
that has embellished our hearing. [Laughter.]
    Senator Wicker, do you have additional questions?
    Senator Wicker. Well, I am tempted to ask that that 
dissertation be attached to the record, but I think I will 
withhold on that.
    Mr. Koh. Senator, then three of us would have read it. 
[Laughter.]
    Senator Feingold. You know, I thought I was for your 
nomination, Dean Koh.
    Senator Lugar. Perhaps we better end the hearing before 
there are further----
    Senator Shaheen.
    Senator Shaheen. No.
    Senator Lugar. Well, I thank the Senators. I thank you very 
much, Dean Koh, for your testimony, and for your response to 
our questions both before the hearing and during the hearing.
    I would just observe that simply as a general editorial 
opinion that, as you have noted, this comes before the 
Judiciary Committee much more frequently than before this 
committee. But there are enormous debates in the Senate as well 
as the American people about various legal principles, even 
discussion of various constitutional amendments and their 
meaning for each one of us.
    And as a rule, thank goodness the Judiciary Committee deals 
with this and witnesses who are hoping to become judges and at 
various levels, and these are serious issues in which many 
Americans believe the judiciary is often making law as opposed 
to interpreting and judging it.
    However, the dilemma obviously for us today is that the 
State Department does require a legal counsel--not a judge, as 
you pointed out, but a counsel--and hopefully, someone of 
experience and wisdom who has seen a great deal of American 
foreign policy as well as judicial principles. So we appreciate 
very much your preparation for the hearing.
    Let me just indicate, as Senator Kerry has requested, that 
it would be helpful that the record remain open until the end 
of the day tomorrow--and that would be Wednesday--for members 
to submit additional questions for the record. And we would ask 
you, Dean, to respond as rapidly as possible to those questions 
so the record can be completed.
    Then our chairman, Senator Kerry, at some appropriate 
moment will call for a business meeting of the committee to 
consider your nomination at that point.
    We thank you again, and we thank all who have come to 
support you today. And the hearing is adjourned.
    Mr. Koh. Thank you so much, Senator.
    [Whereupon, at 4:00 p.m., the hearing was adjourned.]


                              ----------                              



 Responses to Additional Questions Submitted for the Record by Members 
                            of the Committee


      Responses to Additional Questions Submitted for the Record 
                     to Harold Koh by Senator Lugar

    Question No. 1. The United States has historically taken the 
position that the International Covenant on Civil and Political Rights 
does not apply to U.S. actions outside the territory of the United 
States, including extraterritorial actions undertaken during the course 
of armed conflict. If confirmed as Legal Adviser, do you intend to 
recommend any change in this position? If so, please explain the 
changes you intend to propose and the reasons for them.

    Answer. I recognize that the question of the extraterritorial scope 
of the International Covenant on Civil and Political Rights has 
received particular attention during the last several years. But it 
would be premature for me to suggest what interpretation I would 
recommend until I have had the opportunity to review fully the U.S. 
Government's rationale of its position and to engage in full 
discussions of this issue with all relevant U.S. Government legal 
offices. If confirmed, I would look forward to doing so, as well as to 
consulting further with members of this committee and other interested 
Members of Congress on this important issue.

    Question No. 2. In a 2007 article in the Journal of International 
Economic Law, you criticized positions taken by the Bush administration 
in litigation under the Alien Tort Statute and stated, inter alia, that 
``there has been no change in the wording of either the Alien Tort 
Statute (ATS) or the Torture Victim Protection Act (TVPA), and thus, no 
apparent legal reason why the United States should suddenly depart from 
the positions of the Carter and Clinton administrations supporting the 
use of U.S. courts for Filartiga-type recovery under these two 
statutes.''

   Under what circumstances do you believe the executive branch 
        may appropriately change its interpretation of treaties or 
        statutes from those taken under prior administrations?

    Answer. I firmly believe in the value of continuity in legal 
interpretation of treaties and other legal obligations. Our legal 
system is based on a deep respect for legal precedent, although it does 
allow for evolution of the law to address new issues and challenges. My 
view is that the executive branch should seek to offer consistent 
interpretations of treaties and statutes and, to promote this 
continuity, should give significant weight to the legal judgments and 
precedents of prior administrations. This is particularly true of 
statutes such as the Alien Tort Claims Act and the Torture Victims 
Protection Act, where Congress assigned a task not to the executive, 
but to the courts. In all cases, I would apply a presumption that an 
existing interpretation of the executive branch should stand, unless a 
considered reexamination of the text, structure, legislative or 
negotiating history, purpose and practice under the treaty or statute 
firmly convinced me that a change to the prior interpretation was 
warranted.

    Question No. 3. If confirmed as Legal Adviser, to what extent will 
you consider yourself bound in providing advice to the Department of 
State on questions of statutory or treaty interpretation by prior 
executive branch interpretations of the statute or treaty in question?

    Answer. If confirmed as Legal Adviser, on statutory and treaty 
matters, as with all legal standards, I would begin by undertaking a 
full and careful review of the views of previous administrations. I 
would give significant weight to legal judgments and precedents of 
prior administrations. I would look first to prior judicial and 
executive branch interpretations of the treaty or statute in question, 
with the presumption that the existing executive branch interpretation 
should stand, unless a considered reexamination of the text, structure, 
legislative or negotiating history, purpose and practice under the 
treaty or statute firmly convinced me that a change to the prior 
interpretation was warranted.

    Question No. 4. In a 1994 article in the Yale Law Journal 
discussing the U.S. Supreme Court's decision in Sale v. Haitian Centers 
Council you wrote that ``Haitian Centers Council takes its place atop a 
line of recent Supreme Court precedent misconstruing international 
treaties. In the past few years, the Court has sanctioned the 
emasculation of a range of treaties governing service of process, 
taking of evidence, bilateral extradition, and now nonrefoulement.''

   Under what circumstances, if any, do you believe the 
        executive branch may adopt a different interpretation of the 
        legal effect of a treaty than that adopted by the U.S. Supreme 
        Court in a case interpreting the treaty?

    Answer. Under our Constitution, the Supreme Court has the final 
duty to interpret a particular treaty and to say what it requires as a 
matter of domestic law. Where the Supreme Court has spoken definitively 
on the legal effect of a treaty, its rulings are obviously controlling. 
Where the Court has not spoken definitively, the executive branch 
should provide its best interpretation of the legal effect of the 
treaty by looking to the Court's and lower courts' rulings and prior 
executive branch interpretations of the treaty in question, as well as 
to the text, structure, negotiating history, object and purpose, and 
practice under the treaty, as well as any reservations, understandings 
and declarations that accompany the advice and consent of the Senate.

    Question No. 5. If confirmed as Legal Adviser, to what extent will 
you consider yourself bound in providing advice to the Department of 
State on questions of treaty interpretation by interpretations of the 
treaty in question adopted by the U.S. Supreme Court?

    Answer. As my writings reflect, my long-held view is that a Supreme 
Court ruling on a matter of treaty interpretation is authoritative as 
U.S. law and binds the political branches of the Federal Government, 
lower courts, and the states. If confirmed, when advising the 
Department of State on questions of treaty interpretation, I would 
defer to the Supreme Court's interpretation whenever the Court has 
spoken definitively on the particular question of treaty interpretation 
at issue.

    Question No. 6. In testimony before this committee in 2002 on the 
Convention on the Elimination of All Forms of Discrimination Against 
Women (CEDAW) you stated that ``The United States can and should accept 
virtually all of CEDAW's obligations and undertakings without 
qualification . . . Although past administrations have proposed that 
ratification be accompanied by certain reservations, declarations, and 
understandings, only one of those understandings, relating to 
limitations of free speech, expression, and association, seems to me 
advisable to protect the integrity of our national law.''

   Under what circumstances, if any, do you believe the 
        executive branch may adopt a different interpretation or 
        application of a treaty's provisions than those reflected in 
        reservations, understandings, and declarations accompanying the 
        Senate's advice and consent to the treaty?

    Answer. My 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. 
As I have noted in my writings, it is clear that the Senate may give 
its consent to treaty ratification subject to conditions ranging from 
reservations to declarations to understandings of what particular 
treaty terms mean. If the President and our treaty partner choose to 
make a treaty by exchanging instruments of ratification, they can only 
make the treaty to which the Senate has advised and consented. 
Accordingly, under U.S. law, the President is bound, not only at the 
time of ratification but after, to honor the conditions on which the 
Senate has based its consent.

    Question No. 7. If confirmed as Legal Adviser, to what extent will 
you consider yourself bound in providing advice to the Department of 
State on questions of treaty interpretation and application by 
reservations, understandings, and declarations accompanying the 
Senate's advice and consent to the treaty in question?

    Answer. Should I be confirmed as Legal Adviser, I would consider 
myself bound to honor the reservations, understandings, and 
declarations that accompany the Senate's advice and consent to a 
treaty. I have expressed in my writings my belief that the President is 
bound to honor the conditions upon which the Senate has based its 
consent. Under such circumstances, it follows that the President's 
subordinates, including the Legal Adviser to the Secretary of State, 
would be bound to honor those conditions as well.

    Question No. 8. You have been Counsel of Record in amicus briefs 
filed in the U.S. Supreme Court urging the Court to consider the law 
and practice of foreign jurisdictions when interpreting rights-bearing 
provisions of the U.S. Constitution. If confirmed as Legal Adviser, 
what role, if any, do you expect to have in the Obama administration's 
decisions on the interpretation of rights-bearing provisions of the 
U.S. Constitution, and on positions the Obama administration takes on 
such issues in litigation?

    Answer. Since the President nominated me, much has been said about 
my views on this question. If confirmed, I would be taking the oath to 
support and defend the Constitution of the United States. My family 
settled here in part to escape from oppressive foreign law, and it was 
America's law and commitment to human rights that drew us here and have 
given me every privilege in my life that I enjoy. My life's work 
represents the lessons learned from that experience. Throughout my 
career, both in and out of government, I have argued that the U.S. 
Constitution is the ultimate controlling law in the United States and 
that the Constitution directs whether and to what extent international 
law should guide courts and policymakers.
    Within the executive branch, the Department of Justice has been 
assigned the primary responsibility for interpreting the rights-bearing 
provisions of the U.S. Constitution. It is my understanding that the 
Department of Justice consults with the Department of State on the 
interpretation of a rights-bearing provision of the U.S. Constitution 
in cases where that interpretation implicates the foreign relations of 
the United States. If confirmed, I would expect, as prior Legal 
Advisers have done, to participate in such discussions with the 
Department of Justice and other relevant agencies in the U.S. 
Government when those cases arise.

    Question No. 9. A December 12, 2008, Memorandum of Understanding 
between the William J. Clinton Foundation and the Obama Presidential 
Transition Foundation governs certain fundraising activities of the 
Clinton Foundation during the period of Hillary Rodham Clinton's 
service as Secretary of State. The Memorandum of Understanding 
provides, inter alia, for the State Department's designated agency 
ethics official to review and advise on ethics issues potentially 
raised by certain proposed contributions to the Clinton Foundation.

   The State Department's designated agency ethics official is 
        employed within the Department's Bureau of Legal Affairs, over 
        which you will have management responsibility if confirmed as 
        Legal Adviser. If confirmed, what role, if any, do you expect 
        to play with respect to the functions performed and the advice 
        provided by the designated ethics official on issues addressed 
        by the Memorandum of Understanding?

    Answer. Under the December 12, 2008, Memorandum of Understanding 
between the William J. Clinton Foundation and the Obama Presidential 
Transition Foundation, the Department of State's Designated Ethics 
Official, who also serves as a Deputy Legal Adviser in the Office of 
the Legal Adviser, has been given specified ethics duties with respect 
to reviewing and advising on certain foreign government contributions. 
I believe that this official as well as other career government 
attorneys must be allowed to provide their considered, independent 
judgments on ethics matters to senior Department officials. If 
confirmed as Legal Adviser, I would take all necessary steps to support 
that goal.

    Question No. 10. In a number of law review articles, you have 
developed a theory of ``transnational legal process'' in which you seek 
to explain ways in which states comply with rules of international law 
through the internalization of such rules into domestic law and 
processes. In a 2004 law article in the Berkeley Journal of 
International Law addressing this theory you wrote: ``Some have asked 
me, `Is your notion of transnational legal process an academic theory? 
Is it an activist strategy? Or is it a blueprint for policymakers?' 
Over time, my answer has become, `It is all three.' ''

   In what sense do you consider your theory of transnational 
        legal process a blueprint for policymakers?

    Answer. U.S. policymakers frequently use transnational legal 
process as a tool to urge other nations to obey international law. As I 
explain in the 2004 article, ``transnational legal process'' is a 
shorthand description for how state and nonstate actors interact in a 
variety of domestic and international fora to encourage nations to obey 
international norms as a matter of domestic law. For example, U.S. 
policymakers encouraged China to join the World Trade Organization and 
then to modify Chinese domestic law to conform with international rules 
on intellectual property, an objective that is important to U.S. 
economic and other interests. When designing legal rules, U.S. 
policymakers may take into account all available enforcement 
mechanisms, with an eye toward furthering U.S. foreign policy 
objectives.

    Question No. 11. What aspects of your theory of transnational legal 
process do you believe are relevant to the role of the Legal Adviser to 
the Department of State and, if confirmed, what guidance do you expect 
to draw from this theory in performing the functions of the Legal 
Adviser?

    Answer. My approach to transnational legal process assumes that 
U.S. Government officials, including those in the State Department, 
must first and foremost uphold the Constitution and laws of the United 
States of America. When U.S. foreign policy decisions are supported by 
the law, they enjoy the legitimacy that comes from compliance with the 
law and reflect America's commitment to the rule of law as a guiding 
value. Government lawyers enable policymakers to achieve policy 
objectives within the confines of the law and urge policymakers to 
reexamine any policy objective that cannot be achieved lawfully. Thus, 
when the Legal Adviser helps to negotiate a treaty, for example, he 
helps to guide policy choices by both our government and its treaty 
partner into a lawful channel that promotes the rule of law.

    Question No. 12. In a 2007 comment in Michael Doyle's book 
``Striking First,'' you wrote ``[I]f you look at some of the yielding 
lawyers with whom the current President has surrounded himself, at the 
White House counsel's office, as attorney general, and as general 
counsel of the Defense Department, you quickly conclude that, sadly, 
these are not the kind of strong-willed, independent-minded attorneys 
who, in a unilateral situation, are likely to impose restraints upon 
the President's will, based on the rule of law.''

   In the context of these comments, please discuss the general 
        approach you would intend to take, if confirmed, in providing 
        legal advice to the Secretary of State and other Department 
        officials, and the role you believe the Legal Adviser should 
        play in assisting policymakers to achieve desired policy 
        objectives.

    Answer. If confirmed as Legal Adviser, my highest priority would be 
to provide the best possible legal advice to the Secretary of State and 
other State Department officials that is consistent with the 
Constitution and laws of the United States. Legal advisers should give 
policymakers honest and accurate advice about what obligations and 
opportunities the United States faces under international law, what 
room exists for good faith interpretation of legal terms, and what 
consequences the United States might expect from taking positions that 
are inconsistent with its international obligations. If confirmed, I 
would work to help client officials achieve desired policy objectives, 
but only so long as those objectives are consistent with the 
Constitution and our laws.
    During nearly 30 years of working alongside government lawyers--
including my own time working in the Reagan administration as an 
attorney-adviser at the Office of Legal Counsel and in the Clinton 
administration as Assistant Secretary of State for Democracy, Human 
Rights and Labor--I have found that the best government legal counsel 
do not either ``just say yes'' or ``just say no.'' The first approach 
too easily lends itself to lawyers bending the law to allow the 
administration to do whatever what it wants to do; the second approach, 
without more, too easily lends itself to lawyers who do not present 
policymakers with all available lawful options. A third approach, which 
I favor, involves the legal counsel working closely with policymakers 
throughout the policy process to develop alternative, lawful means of 
obtaining smart, sensible policy objectives. In all cases, though, a 
government lawyer must be prepared to hold policymakers to their oaths 
to support and defend the Constitution of the United States. If 
confirmed, that is what I would intend to do.

    Question No. 13. In a 2004 law article in the Berkeley Journal of 
International Law you wrote the following: ``Turning to the United 
States, the final member of the `axis of disobedience,' our greatest 
surprise should be how quickly after September 11 we turned the story 
from the noncompliance of others with international law, to our own 
noncompliance. Examples abound: First and most obviously, the U.S. 
unsigning of the International Criminal Court Treaty; second, the U.S. 
attitude toward the Geneva Conventions--including its actions in Abu 
Ghraib, its decision to create zones in Guantanamo in which people are 
being held without Geneva Convention rights as well as to designate 
certain U.S. citizens within the United States as enemy combatants; and 
third, the death penalty, which has become a growing irritant in the 
relationship between the United States and the European Union, even in 
the war against terrorism.''

   Please explain in what sense you believe the so-called 
        ``unsigning'' of the Rome Statute of the International Criminal 
        Court amounts to noncompliance with international law. Do you 
        believe that international law requires states to become 
        parties to particular treaties or precludes states from 
        expressing an intention not to become parties to treaties they 
        have previously signed but not ratified?

    Answer. Unfortunately, aspects of the article cited have been 
misunderstood by some commentators. I do not believe that international 
law precludes states from expressing an intention not to become parties 
to treaties they have previously signed but not ratified. However, I do 
believe that America's reputation for respect for international law, 
and its capacity to secure the compliance of other nations, can be 
harmed by actions that withdraw from or undermine international legal 
obligations that have been previously undertaken. The specific point I 
was making in the article is that when we are perceived by the world to 
be noncompliant with international norms and obligations, we may 
encourage other countries to do the same.

    Question No. 14. Please explain in what sense you believe that U.S. 
practice with respect to the death penalty amounts to noncompliance 
with international law.

    Answer. The specific point I was making in the article was that the 
continuing U.S. use of the death penalty can pose an obstacle to 
international cooperation to achieve compelling national objectives, 
for example, to the extent that the possibility of the death penalty 
may complicate the extradition of terrorist suspects from the European 
Union. The Supreme Court has also recently found that particular U.S. 
death penalty practices do not comply with constitutional standards, 
invalidating the practice of executing offenders with mental 
retardation and offenders below the age of 18. Atkins v. Virginia, 536 
U.S. 304, 316-17 n.21 (2002); Roper v. Simmons, 543 U.S. 551, 577 
(2005). In neither case did the Court apply international law directly. 
But in both cases, the majority did find that the challenged practice 
violated the ``cruel and unusual punishments'' clause of the eighth 
amendment of the United States Constitution, first by looking to the 
practice of domestic legislatures and juries, and then confirming the 
``unusual'' nature of the practice by examining whether those practices 
had also become ``unusual'' internationally, contrary to the ``evolving 
standards of [human] decency'' long applied to construe the eighth 
amendment. See Trop v. Dulles, 356 U.S. 86, 101 (1958).

    Question No. 15. In November 2001 you delivered the Edward L. 
Barrett, Jr. Lecture on Constitutional Law at the University of 
California, Davis School of Law. In that lecture, you discussed your 
tenure as Assistant Secretary of State for Democracy, Labor and Human 
Rights between 1998 and 2001, and stated ``While I recognized that the 
United States stood increasingly among the minority of nations in its 
adherence to the practice [of capital punishment], I did not believe 
that a customary norm of international law had yet formed condemning 
the practice.''

   Do you believe that a customary norm of international law 
        currently exists condemning the practice of capital punishment? 
        If so, what consequences do you believe flow from the existence 
        of such a norm? If confirmed as Legal Adviser, what steps would 
        you recommend that the United States take in light of any such 
        norm?

    Answer. While I recognize that the United States stands 
increasingly among the minority of nations in its adherence to the 
practice of capital punishment, I do not believe that a customary norm 
of international law has formed prohibiting the general practice of 
capital punishment.

    Question No. 16. In the same lecture, you stated that prior to 
accepting the position as Assistant Secretary for Democracy, Labor, and 
Human Rights, ``I wondered whether I could publicly defend the legality 
of the death penalty. My initial view was that, whatever my moral 
beliefs, as an official sworn to uphold the Constitution and laws of 
the United States, I could defend the legality of the death penalty, so 
long as it was, in fact, administered as Gregg and Furman required 
according to exacting constitutional procedures.'' Later in the same 
lecture, you stated that ``One day during my time in government, while 
being challenged on the death penalty, I could no longer find it in my 
heart to defend the practice. I found myself morally convinced that its 
continuing use is not only utterly wrong, but also unconstitutional.''
    In recent years, legal advisers to the State Department have been 
called upon to address and defend aspects of U.S. practice with respect 
to the death penalty, including in litigation before the International 
Court of Justice and in connection with periodic reports of the United 
States to human rights treaty bodies monitoring the implementation of 
the International Covenant on Civil and Political Rights and the 
Convention on the Elimination of Racial Discrimination.

   In light of the development you have described in your views 
        on capital punishment as practiced in the United States, do you 
        believe you will be able to represent the United States on 
        issues related to capital punishment if you are confirmed as 
        Legal Adviser? Please explain the approach you would intend to 
        take on such issues.

    Answer. If confirmed as Legal Adviser, I would take an oath to 
support and defend the Constitution of the United States. In carrying 
out my governmental duties, I would stand in much the same position as 
a judge in a state that administers the death penalty who personally 
opposes the death penalty, but still must administer that penalty 
because it is the law of his or her state and because he or she has 
taken an oath to uphold that law. Because I acknowledge that no norm of 
customary international law has formed condemning the general practice 
of capital punishment, I would have no difficulty making such an 
assertion to an international body.

    Question No. 17. In testimony before the Senate Judiciary Committee 
in September 2008, you stated that the next U.S. administration 
``should reengage diplomatically with the Contracting Parties to the 
International Criminal Court to seek resolution of outstanding U.S. 
concerns and pave the way for eventual U.S. ratification of the Rome 
Treaty.''

   Please indicate what specific concerns you believe would 
        need to be addressed before it would be advisable for the 
        United States to consider becoming a party to the Rome Statute.

    Answer. The recent bipartisan American Society of International Law 
Task Force on the International Criminal Court--which was cochaired by 
former Legal Adviser William H. Taft IV and Judge Patricia Wald and 
included former Supreme Court Justice Sandra Day O'Connor--recommended 
that the United States could announce a policy of ``positive 
engagement'' with the International Criminal Court. Such a policy would 
allow the United States to help shape the development of the Court and 
could facilitate future consideration of whether the United States 
should join the Court. See ``American Society of International Law Task 
Force, U.S. Policy Toward the International Criminal Court: Furthering 
Positive Engagement iii'' (2009), http://www.asil.org/files/ASIL-08-
DiscPaper2.pdf.
    In considering such a recommendation, among the many questions 
would be: Whether to announce a new policy toward the Court; whether 
and how to respond to the 2002 ``unsigning'' of the Rome Statute; 
whether and how to support the ICC's Prosecutor in particular cases; 
whether to participate in some capacity in the 2010 conference that 
will address the definition of the crime of aggression; whether to 
propose amendment or waiver of particular provisions of the American 
Servicemembers' Protection Act; and whether ultimately to seek 
ratification of the Rome Treaty, a step that would require the Senate's 
advice and consent. All of these issues would require extensive 
interagency discussions, in which I would hope to participate if 
confirmed.
    In particular, the U.S. Government has long expressed concern about 
the authority of the ICC Prosecutor to initiate investigations of U.S. 
soldiers and government officials stationed around the world. 
Particularly because the United States has the largest foreign military 
presence in the world, this is an important issue on which we would 
need further discussion and clarification within the government. If 
confirmed, I would also wish to consult extensively with military 
commanders and other experts, and members of this committee, before I 
would deem it advisable to recommend to the Secretary of State and the 
President that the United States take any steps with regard to the Rome 
Statute.

    Question No. 18. In the same testimony, you urged that ``at the 
earliest opportunity, the new Secretary of State should withdraw the 
Bush administration's May 2002 letter to the United Nations `unsigning' 
the U.S. signature on the Rome Treaty creating the ICC, restoring the 
status quo ante that existed at the end of the Clinton 
administration.''

   What do you believe the legal effect of such an action would 
        be? What obligations, if any, would the United States incur in 
        relation to the Rome Statute if it took this step?

    Answer. As a matter of international law, the May 2002 letter did 
not actually result in the United States ``unsigning'' the Rome 
Statute, as the United States signature remains on the operative legal 
instruments. The stated intent of the May 2002 letter was instead to 
relieve the United States of any current obligation to refrain from 
acts that would defeat the Rome Statute's object and purpose. A 
withdrawal of the May 2002 letter would neither bind the United States 
to become a party to the Rome Statute, nor increase the risk of 
prosecution posed to U.S. citizens, such as soldiers stationed abroad. 
If confirmed, in considering whether to make any recommendations to the 
Secretary of State and the President with regard to the Rome Statute, I 
would consult fully within the executive branch, including with the 
military, as well as with members of this committee.

    Question No. 19. The Bush administration's May 2002 letter stated, 
in pertinent part, that ``the United States does not intend to become a 
party'' to the Rome Statute. Is it the position of the Obama 
administration that the United States does intend to become a party to 
the Rome Statute?

    Answer. With respect to the position of the Obama administration, I 
would refer you to the answer that Secretary Clinton provided to this 
committee during her confirmation hearing in response to a written 
question concerning the administration's position on becoming a party 
to the Rome Statute. If confirmed, I would hope to participate in 
discussions with the Secretary of State, other officials within the 
State Department and other agencies, and members of the Senate Foreign 
Relations Committee and other interested Members of Congress on this 
important issue.

    Question No. 20. The Assembly of States Parties to the Rome Statute 
is in the process of considering whether to adopt a definition of a 
crime of aggression over which the International Criminal Court would 
exercise jurisdiction. What interests do you believe the United States 
has with respect to whether, and in what form, the Assembly of States 
Parties adopts a crime of aggression? What steps do you believe the 
United States should take to advance and protect its interests in 
connection with this process?

    Answer. The crime of aggression was included, but not defined, as a 
potentially prosecutable offense in the 1998 International Criminal 
Court negotiations. A review conference will be held next year at which 
parties to the Rome Statute and observers are expected to discuss both 
the definition, and the circumstances under which the crime of 
aggression could be investigated and prosecuted. The United States has 
substantial interests in whether, and in what form, the Assembly of 
States Parties adopts a definition of the crime of aggression as part 
of the Rome Statute. In particular, the United States has a strong 
interest in avoiding baseless charges of aggression against its own 
officials, soldiers, or allies. This concern would need to be addressed 
before I would recommend that the United States become a party to the 
Rome Statute. If confirmed, I would be interested in participating in 
deliberations both within the executive branch and with members of this 
committee and other interested Members of Congress about how the United 
States could participate in discussions, without becoming a party, to 
advance and protect U.S. interests in this process.

    Question No. 21. On March 29, the New York Times reported that a 
Spanish court was considering opening a criminal investigation into 
actions of former U.S. officials involved in decisions about detention 
and interrogation policy during the Bush administration. What U.S. 
interests do you believe are implicated by 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? What do you 
believe is the appropriate role of the U.S. Government in responding to 
such cases?

    Answer. There can be no doubt that very important U.S. interests 
are implicated by 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. The appropriate role of the 
U.S. Government in responding to such cases 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. If confirmed, I would intend to 
follow such cases closely in coordination with the Department of 
Justice and other U.S. Government agencies, and to work actively with 
our foreign counterparts through legal and diplomatic channels, as 
appropriate to the particular case. In so doing, I would seek the 
advice of members of this committee and other interested Members of 
Congress and keep them fully informed.

    Question No. 22. Successive U.S. administrations have from time to 
time filed briefs in cases in U.S. courts under the Alien Tort Statute 
in which the United States itself was not a party. Under what 
circumstances do you believe it is appropriate for the United States to 
submit views in such cases? What principles do you believe should 
govern any positions to be taken by the United States in such cases?

    Answer. It is appropriate for the United States to submit its views 
in Alien Tort Claims Act cases when a court asks it to do so. The 
United States might also proactively file such a brief when it deems it 
necessary, for example, to ensure consistency with the views of the 
United States on the content of international law; to guarantee respect 
for the separation of powers, including the authority of Congress and 
the courts; and to protect important foreign policy interests of the 
United States. Key decisions about when to file and what position to 
take in any such amicus filings will depend upon multiple factors, 
including the facts and circumstances of each case, the importance of 
the legal principles at stake and the likelihood that they will be 
furthered by such a filing, and the U.S. Government's assessment of 
whether adjudication of the Alien Tort claims at issue at that time 
would or would not prejudice or impede the conduct of U.S. foreign 
policy interests.

    Question No. 23. In a 2005 article in the Indiana Law Journal, 
discussing the Alien Tort Statute, you wrote that ``Under U.S. law, the 
President may not, on his own, violate a jus cogens norm such [as] 
those against torture or slavery or genocide. In the event that the 
President does, he as well as his subordinates may be sued under the 
[Alien Tort Claims Act].''

   Is it the position of the Obama administration that the 
        Alien Tort Statute provides for civil damage remedies against 
        individual U.S. officials, including the President, in 
        connection with actions taken in the course of their official 
        duties?

    Answer. My understanding is that the Obama administration has 
continued to argue in court that, in cases asserting claims for civil 
damages under the Alien Tort Claims Act against U.S. officials in 
connection with actions taken in the course of their official duties, 
the United States should be substituted for the officials pursuant to 
the Westfall Act, 28 U.S.C.  2679, and the case against the United 
States should then be governed by the Federal Tort Claims Act. In the 
article referred to, I was only pointing out that the Supreme Court has 
decided that the Alien Tort Claims Act is potentially available as a 
basis for Federal jurisdiction in certain cases dealing with torture 
allegations. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004). In 
so saying, I did not address many of the other questions raised by such 
an action, including the application of the Westfall Act, domestic law 
immunities (including Presidential immunity), or other defenses that 
might be available to the official defendants.

    Question No. 24. On February 28, 2005, President Bush determined 
that the United States would comply with the judgment of the 
International Court of Justice in the Case Concerning Avena and Other 
Mexican Nationals (Mexico v. United States). To achieve such 
compliance, President Bush issued a memorandum directing state courts 
to review and reconsider the convictions and sentences of the Mexican 
nationals at issue in the case, who were not advised in a timely 
fashion of their rights under the Vienna Convention on Consular 
Relations to have Mexican consular officials notified of their arrests 
in the United States on State criminal charges. In March, 2008 the U.S. 
Supreme Court held in Medellin v. Texas that President Bush lacked the 
authority to compel the States to take such actions.

   What further actions, if any, do you believe the Federal 
        and/or state governments should take to give effect to the 
        ICJ's Avena judgment? If confirmed as Legal Adviser, what steps 
        would you recommend that the United States take with respect to 
        this issue?

    Answer. If confirmed as Legal Adviser, I would strive to ensure 
that the United States lives up to its international obligation to 
comply with decisions of the International Court of Justice (ICJ). With 
respect to the Court's decision in Avena, I know that the State 
Department is committed to training Federal, State and local officials 
on our consular notification and access obligations under the Vienna 
Convention on Consular Relations. I understand that the Department's 
efforts have been well received by these officials and that the United 
States is now doing a substantially better job of complying with these 
obligations than in the past. If confirmed, I would intend to review 
thoroughly what additional efforts can and should be taken to comply 
with the ICJ's judgment.

    Question No. 25. Last term in Medellin v. Texas, the Supreme Court 
held that the President could not direct State officials to give effect 
to treaty obligations of the United States at issue in the case because 
the relevant treaties were not self-executing and the President did not 
have other sources of authority on which he could rely to direct such 
actions.

   In light of this decision, what further steps, if any, do 
        you believe the executive branch and Congress should take in 
        order to ensure that the United States will be able to fulfill 
        its obligations under treaties to which it is currently party?

    Answer. Upon close analysis, I would not expect the ruling to 
create broader problems for overall U.S. treaty compliance with 
existing treaties. The Court emphasized that it was not suggesting that 
other ``treaties can never afford binding domestic effect to 
international tribunal judgments.'' Medellin v. Texas, 128 S.Ct. 1346, 
1365 (2008). To the extent that the Court's judgment applies more 
broadly to ratified treaty provisions outside of the context of 
international dispute resolution, the Court was careful to mention with 
approval the direct enforcement of a number of self-executing treaties. 
While the executive branch does rely in certain contexts on direct 
judicial enforceability of treaty provisions to ensure U.S. compliance, 
more frequently, the executive branch seeks implementing legislation or 
relies upon existing legislation or executive branch action or 
restraint to ensure that U.S. treaty obligations are fulfilled.
    While, for these reasons, I do not believe that the Court's 
decision in Medellin poses a serious broader threat to future U.S. 
treaty compliance, I do think that there is room for improvement during 
the treaty ratification process, including, among other things, the 
need to provide greater clarity regarding the domestic legal effect of 
treaty provisions, as the Senate has recently been doing. Should I be 
confirmed as Legal Adviser, I would of course welcome further dialogue 
on this issue with this committee and other interested Members of 
Congress, in search of ways to continue improvement of that process.

    Question No. 26. What steps do you believe the executive branch and 
Congress should take during the process of considering future treaties 
to which the United States may become party to ensure that the United 
States will be able to fulfill obligations it would undertake under 
such treaties?

    Answer. Should I be confirmed as Legal Adviser, I would support the 
recent practice of this committee to include, where appropriate, in 
resolutions of advice and consent a joint Executive and Senate view 
regarding the self-executing nature of specific provisions of new 
treaties, which will undoubtedly give helpful guidance to U.S. courts 
that are considering the direct enforceability of a particular treaty 
provision. As I noted in my answer to Question 7, I have long 
maintained that the President is bound, under U.S. law, to honor the 
conditions upon which the Senate has based its consent. I would also 
take steps to promote clarity in appropriate documents regarding the 
proposed domestic implementation of a treaty, including its domestic 
legal status, both before and during the process of seeking advice and 
consent.

    Question No. 27. During the last Congress, the Bush administration 
submitted to the Senate for advice-and-consent treaties on defense 
cooperation with the United Kingdom and with Australia. Without any 
prior consultation with the Senate, the Bush administration took the 
extraordinary step of specifying in the text of each of these treaties 
that their provisions would be self-executing in the United States.

   Do you believe the Senate has a coequal role with the 
        executive branch in deciding whether treaties to which the 
        United States may become party will be treated as self-
        executing for the purposes of U.S. law?

    Answer. The Senate has played an important historical role in the 
determination of the domestic legal effect of treaties, and if 
confirmed, I would expect to respect that role by consulting with the 
Senate on this and other aspects of proposed treaties. In my writings, 
I have long argued that article II of the Constitution mandates that 
the Senate and President act as partners in the treaty process. I 
believe the executive branch should respect the long historical 
tradition of prior executive branch consultation with the Senate 
regarding treaties, a tradition that also enables the Senate more 
effectively to fulfill its own constitutional function of advice and 
consent.

    Question No. 28. If confirmed, will you consult with the Senate on 
arrangements for implementing obligations the United States would 
assume under treaties submitted to the Senate for its advice and 
consent?

    Answer. Yes. As my writings make clear, I believe the Senate has an 
essential role to play in the implementation of treaties. If confirmed, 
I would consult fully with the Senate on arrangements for implementing 
obligations the United States would assume under treaties submitted to 
the Senate for its advice and consent. I would also urge other agencies 
with the lead on particular implementing legislation to do the same.

    Question No. 29. What legal instruments and rules do you believe 
govern the detention of individuals captured in connection with U.S. 
military operations in Iraq and Afghanistan?

    Answer. As a general matter, the Obama administration is currently 
conducting an ongoing policy review of its detention authorities. I 
have not participated in that review, and therefore am not in a 
position to comment on what recommendations, if any, are being 
developed by the detention policy task force that may affect the bases 
for and scope of U.S. detentions in armed conflicts and 
counterterrorism operations.
    Detentions of individuals captured in connection with U.S. military 
operations in Iraq and Afghanistan are governed by the law of armed 
conflict and in some cases by rules of local law, although the specific 
international law rules applicable to a particular detainee will depend 
upon both the nature of the conflict at a particular point in time, and 
the status of the individual within the context of that conflict. The 
legal framework governing the treatment of all detainees in U.S. 
custody in Iraq and Afghanistan includes, among other provisions of 
law, the baseline treatment rules found in Common Article 3 of the 1949 
Geneva Conventions; the Detainee Treatment Act of 2005 and the Federal 
Torture Statute; Executive Order 13,491; and various Department of 
Defense rules and regulations (including the Army Field Manual).
    In Iraq, additional rules applicable to detainees as a matter of 
law have changed as the legal framework governing the U.S. presence in 
Iraq has changed. U.S. forces currently operate in Iraq pursuant to the 
``Agreement Between the United States of America and the Republic of 
Iraq On the Withdrawal of United States Forces from Iraq and the 
Organization of Their Activities during Their Temporary Presence in 
Iraq'' (``Security Agreement''). Article 22 of the Security Agreement 
addresses both the disposition of the security detention population in 
U.S. custody as of the entry into force of the Agreement, and new 
detainees whom U.S. forces may arrest or capture in the course of their 
ongoing mission in Iraq.
    In Afghanistan, U.S. forces taking part in the International 
Security Assistance Force (``ISAF'') are operating in Afghanistan under 
(most recently) U.N. Security Council Resolution 1833 (2008), a chapter 
VII resolution that authorizes Member States participating in ISAF to 
``take all necessary measures to fulfill its mandate,'' which includes 
detention. The United States also continues to lead the coalition 
called ``Operation Enduring Freedom,'' and to detain individuals under 
legal authorities that include the Authorization for Use of Military 
Force of September 18, 2001 (Public Law 107-40), as confirmed by the 
Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507, 517-18 
(2004). In addition to the legal requirements noted above, the 
Department of Defense periodically reviews the status of the detainees 
it holds in its custody in Afghanistan. Questions relating to whether 
certain detainees at the Bagram Air Field enjoy constitutionally 
protected habeas corpus rights are the subject of ongoing litigation.

    Question No. 30. What legal instruments and rules do you believe 
govern the detention of members of al Qaeda captured by the United 
States outside Iraq and Afghanistan in operations undertaken pursuant 
to authorization for the use of military force contained in S.J. Res. 
23 of September 18, 2001?

    Answer. As a general matter, the Obama administration is currently 
conducting an ongoing policy review of its detention authorities. I 
have not participated in that review, and therefore am not in a 
position to comment on what recommendations, if any, are being 
developed by the detention policy task force that may affect the bases 
for and scope of U.S. detentions in armed conflicts and 
counterterrorism operations.
    With regard to detentions undertaken pursuant to the Authorization 
for Use of Military Force of September 18, 2001 (Public Law 107-40), 
the Supreme Court held in Hamdan v. Rumsfeld that Common Article 3 of 
the 1949 Geneva Conventions governs the treatment of al Qaeda 
detainees, 548 U.S. 557, 629-31 (2006). In addition to baseline 
treatment rules found in Common Article 3, the legal framework 
governing the treatment of al Qaeda detainees in U.S. custody includes, 
among other provisions of law, the Detainee Treatment Act of 2005 and 
the Federal Torture Statute; Executive Order 13,491; and various 
Department of Defense rules and regulations (including the Army Field 
Manual).
    With regard to detainees held at the Guantanamo Bay Detention Camp, 
Executive Order 13,492 created a review process whereby participating 
agencies are required to consolidate information pertaining to 
Guantanamo detainees and, through a case-by-case status review, to 
determine whether they can be released or transferred, whether they can 
be prosecuted, or whether to select another lawful option with respect 
to their disposition. Executive Order 13,492 additionally ordered the 
Secretary of Defense to undertake a 30-day review of the conditions of 
confinement at Guantanamo Bay Detention Camp to ensure their compliance 
with all applicable laws, including Common Article 3 of the 1949 Geneva 
Conventions, and the Department of Defense has completed that review 
and made it public. Beyond these processes, the Supreme Court has 
confirmed in Boumediene v. Bush that Guantanamo detainees have a 
constitutionally protected right to seek the writ of habeas corpus in 
U.S. courts. Detainees held at the Bagram Air Field are currently being 
governed by the legal framework described in my response to Question 
29. Questions relating to whether certain detainees at Bagram Air Field 
enjoy constitutionally protected habeas corpus rights are the subject 
of ongoing litigation.

    Question No. 31. In a 2007 article in the Cornell International Law 
Journal, you urged the United States to renounce the practice of 
extraordinary rendition. Under what circumstances, if any, do you 
believe the United States has the authority to transfer an individual 
to the custody of foreign law enforcement authorities in the absence of 
an extradition treaty?

    Answer. Under certain circumstances, as some senior administration 
officials have said, transfers of individuals outside extradition 
channels may be appropriate and lawful--such as when an individual is 
subject to deportation proceedings, with any necessary diplomatic 
assurances, or is transferred with the consent of the sending state to 
face legal process in the receiving state.
    In the article cited, when referring to the practice of 
``extraordinary rendition,'' I was referring in particular to rendition 
of suspects to conditions of torture. I do not believe that rendition 
is lawful or permissible where the goal of the rendition is to transfer 
an individual to a foreign government so that he can be tortured. 
President Obama's Executive Order 13,491 on ``Ensuring Lawful 
Interrogations'' created a task force specifically to examine the U.S. 
practice of transferring individuals to foreign nations. One goal of 
this task force is to ensure that such practices comply with the 
domestic laws, international obligations, and policies of the United 
States and do not result in the transfer of individuals to other 
nations to face torture. I understand that the State Department and its 
attorneys are playing an important role in that task force.

    Question No. 32. In a 2007 comment in Michael Doyle's book 
``Striking First,'' you discuss international law rules governing the 
use of force. You propose ``that we move to a per se ban on unilateral 
anticipatory warmaking, with any post hoc justification of such 
anticipatory actions being asserted as a defense and not in the form of 
prior permission.''

   Under what circumstances, if any, do you believe a state may 
        legitimately use force in response to threats that have not 
        resulted in an attack on the state?

    Answer. I agree 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. Any action 
taken in response to such an imminent threat must be necessary and 
proportional; as Daniel Webster said in 1837 in his famous statement in 
the Caroline case, ``the act justified by the necessity of self-
defense, must be limited by that necessity, and kept clearly within 
it.'' Determining whether the traditional tests of imminence, 
necessity, and proportionality are satisfied in any particular case can 
present exceedingly difficult questions that would need to be evaluated 
in the context of the particular circumstances existing at the time and 
the precise nature of the threat being faced. In the comment quoted, I 
was observing the dangers of a doctrine that would reach well beyond 
these established principles of self-defense to provide advance 
authority to an individual state such as North Korea to engage in 
``unilateral anticipatory warmaking'' based on its own subjective 
balancing of four factors (lethality, likelihood, legitimacy, and 
legality).

    Question No. 33. A 2004 report by a high-level panel convened by 
then-U.N. Secretary General Kofi Annan stated that ``a threatened 
State, according to long established international law, can take 
military action as long as the threatened attack is imminent, no other 
means would deflect it and the action is proportionate.'' Do you agree 
with this statement?

    Answer. Yes. As noted above, the quoted statement follows ``long 
established international law.''

    Question Nos. 34 and 35. In 2005, the United Nations World Summit 
endorsed the concept of a responsibility of states to protect 
populations from genocide, war crimes, ethnic cleansing, and crimes 
against humanity. The concept as endorsed by the United Nations 
provides that where states manifestly fail to protect their populations 
from such atrocities, the international community, acting through the 
U.N. Security Council, is prepared to take collective action in a 
timely and effective manner to provide such protection. Some 
commentators have asserted that this doctrine provides a basis on which 
states, individually or collectively, may use force to protect 
populations in other states from atrocities.

   Do you believe that international law recognizes a right of 
        individual states to use force without U.N. Security Council 
        authorization to protect populations from atrocities?

   If you believe in such a right, what principles govern such 
        interventions? What impact would such a doctrine have on the 
        general prohibition in international law against the use of 
        force between states except in cases of self-defense?

    Answer. As in any case where the use of force is being 
contemplated, this situation presents some of the most difficult and 
fact-specific questions with which international law has had to deal. 
As U.N. Secretary General Kofi Annan said in 1999:

          To those for whom the greatest threat to the future of 
        international order is the use of force in the absence of a 
        Security Council mandate, one might ask . . . in the context of 
        Rwanda: If, in those dark days and hours leading up to the 
        genocide, a coalition of States had been prepared to act in 
        defen[s]e of the Tutsi population, but did not receive prompt 
        Council authorization, should such a coalition have stood aside 
        and allowed the horror to unfold?

Address to General Assembly, Sept. 20, 1999, http://www.un.org/News/
ossg/sg/stories/statments_search_full.asp?statID=28.
    In any such case, I believe it would be important for the Legal 
Adviser to examine the case presented with extreme care and 
thoroughness, taking into account all relevant factors and 
circumstances, before advising the Secretary of State and the President 
on how to proceed. In addition to international legal considerations, 
it would also be important to build as broad support as possible among 
the American people and the Congress for any decision to use force in 
such circumstances, including working as closely as possible with the 
members of this committee.

    Question Nos. 36 and 37. On January 26, U.S. Permanent 
Representative to the United Nations Susan Rice stated that the 
administration remains ``very deeply concerned about the ongoing 
genocide in Darfur.'' Similarly on March 23, Acting State Department 
Spokesman Robert Wood stated ``certainly what's going on in Darfur is 
genocide.'' Other observers have declined to characterize past and 
present events in Darfur as constituting genocide.

   Do you believe that events currently taking place in Darfur 
        meet the legal definition of genocide contained in article 2 of 
        the Convention on the Prevention and Punishment of the Crime of 
        Genocide? Please indicate the reasons for your conclusion.
   When then-Secretary of State Colin Powell announced the Bush 
        administration's position in September 2004 that events then 
        occurring in Darfur met the legal definition of genocide, he 
        based his conclusion on a contemporaneous study conducted by 
        the State Department documenting atrocities in Darfur, 
        including field interviews with over 1,100 Darfur refugees. Has 
        the Obama administration conducted a similar study of events 
        currently taking place in Darfur? If not, does the 
        administration intend to conduct such a study to inform future 
        judgments it may make about the legal character of events in 
        Darfur?

    Answer. As reflected in Secretary of State Colin Powell's September 
9, 2004, statement before the Senate Foreign Relations Committee, the 
Department of State's comprehensive review of the situation in Darfur 
provided the basis for the conclusion that the events on the ground met 
the requirements for genocide under the Convention on the Prevention 
and Punishment of the Crime of Genocide. That statement appeared to me 
to be well-reasoned, as Secretary Powell pointed to, among other 
things, a consistent and widespread pattern of killings, rapes, burning 
of villages and other acts that indicated the specific intent to 
destroy in whole or in part non-Arab groups in Darfur. I am not aware 
of what recent information may be available within the U.S. Government 
on this subject or what the Department's plans might be for conducting 
a study on the subject. However, if confirmed, I would work closely 
with Secretary Clinton, others at the State Department, and the members 
of this committee to determine how best to address the situation in 
Darfur.

    Question No. 38. Some have criticized the U.N. Security Council's 
targeted sanctions regime for failing to provide sufficient due process 
rights for individuals who are targeted for sanctions. In September, 
the European Court of Justice in the Kadi case invalidated European 
Community regulations implementing UNSC sanctions against al Qaeda and 
the Taliban as applied to two individuals on the ground that the 
process for adopting the sanctions failed to respect the individuals' 
fundamental due process rights.

   Do you believe the U.N. Security Council's existing 
        sanctions regimes fail to provide adequate protections for the 
        due process rights of targeted individuals?

    Answer. Targeted sanctions are an important and effective tool for 
the Security Council. They are a valuable alternative to the use of 
force and to comprehensive economic sanctions that affect entire 
populations. At the same time, I understand why concerns have been 
raised that targeted sanctions operate unfairly and can be imposed on 
the wrong people. It is important that the sanctions process not only 
work, but also be perceived to work in a way that is fundamentally 
fair. With the support of the United States, the Security Council has 
taken recent steps to enhance fairness and transparency in the 
implementation of targeted sanctions. Additional steps to address due 
process concerns may well be necessary, and if confirmed I would devote 
considerable attention to working with our partner states to identify 
and implement those steps.

    Question No. 39. If confirmed as Legal Adviser, what steps would 
you recommend the United States take to respond to such challenges and 
to ensure that the Security Council retains the authority to implement 
effective targeted sanctions regimes?

    Answer. The United States has a strong interest in ensuring that 
targeted sanctions, which can be effective foreign policy tools, are 
imposed and implemented by the Security Council in a manner that is as 
fair and transparent as possible. For this reason, and because of our 
own fundamental sense of fairness and due process, I believe that the 
United States should continue to work with partner states to identify 
further improvements that could be made to United Nations targeted 
sanctions regimes.

    Question No. 40. In 2007, the U.N. General Assembly failed to elect 
a U.S. national to the International Law Commission for the first time 
since the ILC's inception. The next elections to the ILC occur in 2011. 
What priority do you attach to electing a U.S. national to the ILC in 
these elections? If confirmed as Legal Adviser, what steps would you 
plan to take to ensure the election of a U.S. national to the ILC?

    Answer. Since its inception in 1947 until the last election in 
2007, the International Law Commission (ILC) had always had a U.S. 
member. Although the members of the ILC serve in their personal 
capacities, not as representatives of their countries of nationality, I 
believe that the presence of a U.S. member is good both for the United 
States, in helping to ensure that U.S. perspectives are taken into 
account as the ILC undertakes its work, and for the Commission itself, 
which benefits from the perspective that a U.S. member can bring to 
bear. I was disappointed that the U.S. candidate in the last ILC 
election, Professor Michael Matheson, who had served with distinction 
on the Commission for several years, was not elected. I believe that 
electing a U.S. national to the ILC in 2011 should be an important 
priority for the United States.
    If confirmed as Legal Adviser, I would seek to identify the 
strongest possible U.S. candidate, and would welcome counsel from 
interested members of this committee and other U.S. communities 
knowledgeable about international law. I would then work within the 
State Department to make sure that efforts to support the election of 
the U.S. candidate are treated as a high priority. I think it could be 
particularly useful to work within the Western European and Others 
Group (WEOG), including in the early stages, to assure support within 
the group for the U.S. candidate, and to impress upon others the 
benefits to all concerned of once again having a U.S. member of the 
Commission.

    Question No. 41. On April 13, U.S. Permanent Representative to the 
United Nations Susan Rice, in discussing the Security Council's 
Presidential Statement on North Korea, stated ``First of all, the 
United States views Presidential statements, broadly speaking, as 
binding.'' Do you believe that Presidential statements of the U.N. 
Security Council generally create legally binding obligations on U.N. 
Member States under the U.N. Charter?

    Answer. As a nominee, I have not participated in discussions around 
this particular matter. As a general matter, however, I would note that 
under article 25 of the United Nations Charter, U.N. Member States are 
legally required ``to accept and carry out the decisions of the 
Security Council in accordance with the [U.N. Charter].'' There is 
nothing in the Charter that specifies the form in which the Council's 
decisions must be recorded.

    Question 42. In response to Question No. 1 of my prehearing 
questions for the record, you declined to indicate whether you would 
recommend any changes in the historical U.S. position that the 
International Covenant on Civil and Political rights does not apply to 
U.S. actions outside the territory of the United States. While you 
indicated that it would be premature to suggest what interpretation you 
would recommend until you have had the opportunity to review fully the 
U.S. Government's rationale for its position, you are likely generally 
familiar with the issue from your prior service as Assistant Secretary 
of State for Democracy, Human Rights, and Labor.
    In response to Question No. 2 of my prehearing questions for the 
record about when it might be appropriate for the executive branch to 
change its interpretation of a treaty, you indicated that, ``In all 
cases, I would apply a presumption that an existing interpretation of 
the executive branch should stand, unless a considered examination of 
the text, structure, legislative or negotiating history, purpose and 
practice under the treaty or statute firmly convinced me that a change 
to the prior interpretation was warranted.''

   In light of this standard and your general familiarity with 
        the issue, are you aware of any present circumstances that you 
        believe would warrant a reexamination of the historical U.S. 
        position that the International Covenant on Civil and Political 
        rights does not apply to U.S. actions outside the territory of 
        the United States? If so, please indicate what circumstances 
        you believe would warrant such a reexamination.

    Answer. It is true that I am generally familiar with the issue 
discussed in this question, including the views expressed by former 
Legal Advisers Conrad Harper and John Bellinger, both from my academic 
work and from my prior service as Assistant Secretary of State for 
Democracy, Human Rights, and Labor. That said, I have not yet had the 
occasion to conduct the kind of considered examination of the text, 
structure, negotiating history, purpose and practice under the treaty 
that I believe a legal adviser should give to an issue before reaching 
a conclusion on a question of this importance, nor have I had the 
opportunity to review fully the U.S. Government's rationale for its 
existing position. For those reasons, I believe that it would be 
premature to suggest what interpretation I would recommend. If 
confirmed, I would seek to review thoroughly all of the past legal 
memoranda by the Legal Adviser's Office and other government law 
offices on this issue, to examine the various fact patterns to which 
this interpretation might apply, and to consult with policymakers, 
other government attorneys, and members of this committee and other 
interested Members of Congress on this question.

    Question No. 43. If confirmed, would you intend to conduct any such 
reexamination of the U.S. interpretation of the ICCPR?

    Answer. For a number of reasons, I believe it is advisable for the 
Legal Adviser's Office to avoid giving its legal advice in the 
abstract, but rather, to provide that advice when asked a real-life 
question, based on a concrete set of facts and an anticipated policy 
choice. If I were confirmed, and asked to apply the existing U.S. 
interpretation of the ICCPR, I would determine at that time whether 
such a decision posed an occasion to conduct the kind of considered 
legal examination discussed in my prior answer.

    Question No. 44. In Question No. 21 of my prehearing questions for 
the record, I asked what U.S. interests you believe are implicated by 
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. In your response to this portion of the question, you 
indicated that ``There can be no doubt that very important U.S. 
interests are implicated by such efforts,'' but you did not specify 
what you believe these interests to be. Please indicate what U.S. 
interests you believe are implicated by 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.

    Answer. As I suggested in some of my answers to your prehearing 
questions, prosecutions 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. Of course, the United 
States has a vital and pressing interest not just in enforcing its own 
laws, but also in protecting U.S. officials and soldiers from baseless 
or unwarranted charges and prosecutions, and from the chilling effect 
that possible foreign charges and prosecutions might cast over daily 
decisionmaking. Such actions may implicate doctrines relating to 
immunity, overly expansive assertions of foreign criminal jurisdiction, 
and efforts by political opponents of particular U.S. policies to seek 
leverage by invoking foreign jurisdictional provisions to initiate 
criminal complaints against U.S. officials. If confirmed, I would 
become a U.S. Government official working closely with other U.S. 
officials who must daily make difficult and sensitive decisions. I, 
therefore, intend to follow such cases very closely, in coordination 
with the Department of Justice and other U.S. agencies, and to work 
with our foreign counterparts to determine how best to deal with these 
cases.

    Question No. 45. You have raised questions about the legality under 
international law of the 2003 invasion of Iraq, largely on the ground 
that the U.N. Security Council did not pass a resolution specifically 
authorizing the use of force in advance. In responses to Question No. 
34 and No. 35 of my prehearing questions for the record on the separate 
issue of whether states may use force without Security Council 
authorization to protect populations from atrocities, you appear to 
suggest that there may be some appropriate scope for such action.

   Against this background, please discuss your views on when 
        states may use force without specific prior authorization from 
        the U.N. Security Council. Are the considerations different 
        when states seek to use force to address threats such as 
        terrorism or weapons of mass destruction than they are when 
        force is proposed as a means to address wide-scale atrocities?

    Answer. Under article 2(4) of the Charter of the United Nations, 
all U.N. Member States have agreed to refrain from the threat or use of 
force against the territorial integrity or political independence of 
any state, or in any other manner inconsistent with the purposes of the 
United Nations. However under article 51 states are permitted to use 
force without prior Security Council authorization when exercising 
their inherent right of individual or collective self-defense if an 
armed attack occurs, including to use force to protect their own 
nationals. As I noted in my answer to Senator Lugar's prehearing 
Question No. 33, I agree with the 2004 report by a high-level panel 
convened by then-U.N. Secretary General Kofi Annan that states that ``a 
threatened state, according to long-established international law, can 
take military action as long as the threatened attack is imminent, no 
other means would deflect it and the action is proportionate.'' Cases 
involving the possible use of force as a means to address widespread 
atrocities present a different set of issues insofar as the rationale 
for using force in such cases is not based on the right of self-
defense. There are, in fact, widely differing views regarding whether 
using force for humanitarian purposes is permissible under 
international law.
    As I state in my answer to a question from Senator DeMint, I 
believe that the U.S. use of force in Kosovo was both lawful and the 
right thing to have done. The Kosovo intervention was expressly 
premised on humanitarian intervention grounds and had broad 
multilateral support. There was no reasonable alternative to the use of 
force. As Assistant Secretary of State for Democracy, Human Rights and 
Labor during that period, I read extensive reports indicating that 
forces from the Federal Republic of Yugoslavia and Servia were engaged 
in massive and sustained repression against the Kosovar Albanian 
population, they had acted in flagrant contravention of resolutions 
that the U.N. Security Council had adopted under chapter VII, and a 
humanitarian catastrophe was unfolding that threatened not only the 
people of Kosovo but the security and stability of the entire region. 
The intervention was supported by a multilateral NATO decision, and 
significantly, shortly after NATO commenced military operations, a 
resolution introduced in the Security Council would have called NATO's 
use of force unlawful, but that resolution was soundly defeated by a 12 
to 3 vote.
    If confirmed as Legal Adviser, I would similarly want to look 
carefully at the specific facts and circumstances of any particular 
proposed use of military force involving such humanitarian 
considerations before rendering a legal opinion regarding its 
permissibility under international law.

      Responses to Additional Questions Submitted for the Record 
                    to Harold Koh by Senator DeMint

Transnational Law
    Question. In your article Why Transnational Law Matters (24 
Penn.State International Law Review 745-753 (2006), you describe the 
difference between nationalists and transnationalists, specifically 
saying that:

          The transnationalists view domestic courts as having a 
        critical role to play in domesticating international law into 
        US law, while nationalists argue instead that only the 
        political branches can internalize international law. The 
        transnationalists believe that US courts can and should use 
        their interpretive powers to promote the development of a 
        global legal system, while the nationalists tend to claim that 
        the US courts should limit their attention to the development 
        of a national system.' (p 749).

    Which faction do you place yourself in?

    Answer. The purpose of this article was to argue, as a legal 
educator, that the world is growing increasingly interdependent; that 
transnational law is gaining public visibility; and that law schools 
therefore need to tackle the difficult job of making sure that 21st 
century law students are trained and knowledgeable about international 
law and policy. In the passage quoted, I explained that ``the Supreme 
Court has now divided into transnationalist and nationalist factions,'' 
with the terms ``transnationalist'' and ``nationalist'' describing 
different judicial philosophies, and with several members of the Court 
in each camp. As someone who is not a judge and who is not being 
nominated to a judicial position, [ would not presume to place myself 
into either of these two judicial camps. I do believe, as I have stated 
in my writings, that the former position, which has strong historical 
roots in the Framers' vision of the Constitution, is more persuasive. 
As J noted in my hearing and in response to Senator Lugar's Pre-Hearing 
Question 10, if confirmed as Legal Adviser, [would see the primary 
value of transnational legal process as a means to persuade other 
nations to obey international law.

    Question. You have written that transnational legal processes can 
and should be used to develop and eventually ``bring international law 
home'' to have binding force within the U.S. legal system Do you think 
it is appropriate as Legal Advisor to support such efforts to use 
litigation to incorporate international legal norms within U.S. law?

    Answer. The question of whether the Legal Adviser should support 
the incorporation of international legal norms in a particular case 
will depend on the legal issues and facts of the case as well as a 
range of other factors, many of which I discussed in the specific 
context of the Alien Tort Claims Act in my answer to Senator Lugar's 
Pre-Hearing Question #22. The factors include an assessment of whether 
adjudication of the claims at issue at that time would protect or 
impede the conduct of U.S. foreign policy interests, and whether the 
filing would be necessary to ensure consistency with the U.S.'s views 
on the content of international law and guarantee respect for the 
separation of powers, including the authority of Congress and the 
courts.

    Question. I'm concerned by the use of so-called ``human rights'' 
treaties to bypass the ordinary processes of representative government 
on matters of social and economic policy. You've been an ardent 
champion of this use of treaties.
    As a government that was founded on the consent of the governed, 
how do you see the voice of the American people in the process of 
``domesticating'' international law?
    Do you see any limit in law on the use of treaties to adopt 
domestic policies?

    Answer. As I have explained in my writings, the American people, 
through our Constitution and elected representatives, can determine 
whether and when international law applies in the United States in a 
number of ways. To provide only a few examples, a Congress elected by 
the people can ratify a treaty or incorporate international law into a 
statute; a President elected by the people can incorporate or exclude 
international law from domestic law in an executive order; and a judge 
who has been appointed by elected officials and confirmed by elected 
officials can interpret a treaty or international law when required to 
do so by statute. Also, if Congress objects to the way in which the 
courts have applied international law, Congress is always free to act. 
My view is that the domestic impact of treaties can be limited in a 
variety of circumstances, including when such treaties are non-self-
executing, or when giving domestic effect to the treaty would violate 
the constitutional separation of powers, the Bill of Rights 
(particularly the Tenth Amendment), or another provision of the U.S. 
Constitution.

    Question. This committee may consider three important treaties in 
the near future: The UN Convention on the Law of the Sea, the 
Convention for the Elimination of Discrimination Against Women, and the 
Convention on the Rights of the Child.
    Do you believe it is legal and appropriate for the U.S. government 
to attach statements of ``non-self-execution'' to these treaties such 
as those that were attached to the International Convention on Civil 
and Political Rights?
    What do you believe are the legal limits on the Senate's ability to 
condition its consent to a treaty on a declaration that the treaty is 
non self-executing?

    Answer. Each provision of a treaty must be considered on a case-by-
case basis when it comes to the issue of domestic legal effect. For 
example, in the case of the Law of the Sea Convention, the Committee's 
proposed resolution of advice and consent (which has been approved 
twice by this Committee) provides that the Convention is not self-
executing, except for certain provisions regarding privileges and 
immunities. I would consider it legal and appropriate for the United 
States to accede to the Convention on that basis. At such time as this 
Committee and the Senate might choose to consider other treaties, such 
as the Convention for the Elimination of Discrimination Against Women 
or the Convention on the Rights of the Child, I would, if confirmed, 
expect to consult with the Senate regarding the domestic legal effect 
of those treaties' provisions. As I noted in my oral testimony and in 
my answers to Senator Lugar's prehearing Questions for the Record 6 and 
27, in my writings, I have long argued that Article II of the 
Constitution mandates that the President and the Senate act as partners 
in the treaty process. If confirmed, I would respect the Senate's role 
in determining the domestic effect of treaties by consulting with the 
Senate on this and other aspects of proposed treaties.

    Question. In a Supreme Court brief on the Medellin case, you argued 
a treaty should be regarded as self-executing solely because the State 
Department legal adviser testified that it was self-executing. However, 
the Supreme Court instead ruled that a treaty is not self-executing 
unless ``the treaty itself conveys an intention that it be 'self-
executing' and is ratified on those terms.''
    If you are confirmed as legal adviser, would you take the position 
that a treaty is self-executing when the actual text of the treaty 
doesn't make that clear?

    Answer. Under our Constitution, the Supreme Court has the final 
duty to interpret a particular treaty and to say what it requires as a 
matter of domestic law, and I would, of course, uphold the Supreme 
Court's decision in the Medellin case and apply its holding to other 
treaties. As noted in the majority opinion, the Court's approach does 
not ``require that a treaty provide for self-execution in so many 
talismanic words .... Our cases simply require courts to decide whether 
a treaty's terms reflect a determination by the President who 
negotiated it and the Senate that confirmed it that the treaty has 
domestic effect.'' Medellin v. Texas, 128 S. Ct. 1346, 1366 (2008).
Convention for the Elimination of Discrimination Against Women (CEDAW)
    Question. In 2002, you testified before this committee that it's 
``flatly untrue'' that ``CEDAW supports abortion rights'' and you 
stated that ``several countries in which abortion is illegal--among 
them Ireland, Rwanda, and Burkina Faso have ratified CEDAW.''
    Were you aware that the CEDAW committee issued several reports 
opposing restrictions on abortion, before the date of your testimony?
    Further, were you aware that one of those reports expressed 
concerns about the restrictive abortion laws of Ireland and--one of the 
countries whose ratification of CEDAW you cited as support for your 
claim that CEDAW doesn't support abortion rights?
    In your testimony, you also stated that it was false that CEDAW 
would require decriminalization of prostitution.
    Were you aware that the CEDAW committee report on prostitution 
included its recommendation that China decriminalize prostitution?
    In light of these reports do you still stand by the testimony that 
you offered to the committee in 2002?

    Answer. Yes. When I testified as a private citizen regarding my 
understanding of the CEDAW treaty in 2002, I provided my views based on 
my best reading of the treaty in keeping with longstanding canons of 
treaty interpretation under international law. Article 17 of the 
Convention states that the Committee's purpose is to consider ``the 
progress made in the implementation of the . . . Convention'' and 
Article 21 provides that the Committee ``may make suggestions and 
general recommendations . . . ``Neither of these provisions, nor any 
other provision of the Convention, vests the CEDAW Committee with 
legally binding authority over a State Party.
    Over the years, I have read many of the CEDAW Committee reports, 
but I have never considered the views of the CEDAW Committee--as 
opposed to the text of the treaty--which is the only legal instrument 
that the United States might ratify-to be legaJly binding on the States 
parties, or upon other States who might eventuaJly ratify the treaty. 
The Committee was and is free to offer its interpretation of particular 
issues as applied to particular countries, just as the U.S. Government 
would be free to disagree with the CEDAW Committee were the United 
States to become party to the treaty and to reach different conclusions 
on its meaning and scope. Accordingly, I would not alter any of my 
conclusions in the 2002 testimony simply because they might differ from 
the recommendations or views of the CEDAW Committee.
U.S. Use of Force
    Question. One of your predecessors, William Taft, argued that the 
2003 invasion of Iraq was legal under international law and offered a 
number of legal opinions to that effect during his tenure. Do you agree 
with his interpretation of international law governing the use of force 
in Iraq?

    Answer. Mr. Taft was an outstanding State Department Legal Adviser, 
whom I hold in the highest regard. Mr. Taft's view, with which I am in 
agreement, was that the question whether the Iraq invasion conformed 
with international law turned on the proper interpretation of the 
relevant resolutions that had been adopted by the UN Security Council 
in the dozen years before the invasion, leading ultimately to the 
adoption of UN Security Council resolution 1441 in November 2002. 
However, as I indicated in my response to Senator Isakson's question in 
the Committee's hearing on April 28, in looking closely at those 
resolutions, my conclusion was that their wording did not provide the 
necessary support under international law. Thus, while Mr. Taft and I 
approached our analysis with a similar methodology, we ultimately came 
to different legal conclusions. This was an issue about which 
reasonable lawyers could differ, and which in fact generated a 
significant amount of disagreement, within both the United States and 
foreign legal communities. I believe that one consequence of this lack 
of consensus as to whether the resolutions provided the necessary 
support was that it hindered U.S. efforts to attract as broad political 
support for our military actions in Iraq as we would have liked. We 
have since needed the help of the United Nations and the international 
community to rebuild Iraq after the war, and in doing so, we have had 
to overcome the absence of the broadest possible level of initial 
support for the 2003 military action.

    Question. In your testimony, you claim that the war in Iraq 
violated international law but not domestic law. However, you have also 
made the statement that ``international law is federal law.'' If the 
war in Iraq violated international law, then, didn't it also violate 
domestic law?

    Answer.No. As I indicated in my testimony, the 2003 war in Iraq was 
authorized by a joint resolution of Congress. I have never argued that 
any violation of international law automatically constitutes a 
violation of U.S. federal law. Rather, the statement referenced came 
from an article in which I argued that the proper reading of existing 
U.S. judicial doctrine is that federal courts retain legitimate 
authority selectively to incorporate bona fide rules of customary 
international law into federal common law on a case-by-case basis.

    Question. According to newspaper reports, the U.S. government has 
been engaged in the use of covert military attacks in at least seven 
different countries, as part of the ``global war on terrorism.'' 
Including missile attacks in Yemen and Pakistan. Do you believe these 
attacks are lawful under U.S. and international law?

    Answer. I am not privy to all of the facts regarding the situations 
mentioned in the question, and therefore I am not in a position to 
express a firm legal opinion on these particular actions. More 
generally, however, I note that in the Authorization for Use of 
Military Force (AUMF) of September 18,2001 (public Law 107-40), 
Congress authorized the President to ``use all necessary and 
appropriate force'' against al Qaeda, the Taliban, and associated 
forces. The language of the AUMF was not geographically limited. As 
stated in the October 2001 letter from the United States notifying the 
Security Council pursuant to Article 51 of the UN Charter: ``We may 
find that our self-defense requires further actions with respect to 
other organizations and other States.'' In any case, as I have noted in 
my answer to Senator Lugar's prehearing Question 32, whenever the 
United States uses force in self-defense, it must do so in a manner 
that is consistent with the principles of necessity and 
proportionality.

    Question. Do you believe the United States acted lawfully when it 
attacked Serbia during the 1999 Kosovo conflict despite the lack of any 
Congressional authorization or authorization from the United Nations?

    Answer. I fully supported the 1999 NA TO military campaign. I am of 
course aware that some have criticized the decision to use force in 
that case, but I continue to believe today that it was both lawful and 
the right thing to have done. As Kofi Annan said in 1999: ``To those 
for whom the greatest threat to the future of international order is 
the use of force in the absence of a Security Council mandate, one 
might ask . . . in the context of Rwanda: If, in those dark days and 
hours leading up to the genocide, a coalition of States had been 
prepared to act in defense of the Tutsi population, but did not receive 
prompt Security Council authorization, should such a coalition have 
stood aside and allowed the horror to unfold. The Kosovo intervention 
was expressly premised on humanitarian intervention grounds and had 
broad multilateral support. In the specific case of Kosovo, there was 
no reasonable alternative to the use of force. As Assistant Secretary 
of State for Democracy, Human Rights and Labor during that period, I 
read extensive reports indicating that forces from the Federal Republic 
of Yugoslavia and Serbia were engaged in massive and sustained 
repression against the Kosovar Albanian population, they had acted in 
flagrant contravention of resolutions that the UN Security Council had 
adopted under Chapter VII, and a humanitarian catastrophe was unfolding 
that threatened not only the people of Kosovo but the security and 
stability of the entire region. The intervention was supported by a 
multilateral NATO decision. In addition, shortly after NATO commenced 
military operations, a resolution was introduced in the Security 
Council that would have called NATO's use of force unlawful, but that 
resolution was soundly defeated by a 12 to 3 vote.
Legal Protections
    Question. Do you support Senate Ratification of the International 
Criminal Court?

    Answer. In my academic writings, I have argued that the United 
States should pursue a strategy of ``constructive engagement'' with the 
International Criminal Court--that is, work with the Court to make its 
functioning more fair. As I explained in my answers to Senator Lugar's 
Pre-Hearing Questions, a recent bipartisan task force of the American 
Society of International Law has similarly recommended that the United 
States announce a policy of ``positive engagement'' with the 
International Criminal Court. If confirmed, I would wish to engage in 
extensive discussion with officials across the U.S. Government, 
including military commanders and experts and members of this 
Committee, before I would deem it advisable to recommend that the 
Secretary of State and the President that the United States take any 
specific step with regard to the international Criminal Court. Among 
other things, the U. S. Government has long expressed concern about the 
authority of the ICC Prosecutor under the Rome Statute to initiate 
investigations of U.S. soldiers and government officials stationed 
around the world. Particularly because the United States has the 
largest foreign military presence in the world, this is an important 
issue on which we would need further discussion and clarification 
within the government before taking any particular action regarding the 
International Criminal Court.

    Question. Article 17 of the International Criminal Court states 
that the Court will not pursue an investigation or prosecution when 1) 
a nation is investigating or prosecuting a case or 2) an investigation 
has been completed.
    Given President Obama's statements not to pursue legal action 
against CIA agents who may have participated in torture, do you believe 
this leaves them open for potential prosecution by the International 
Criminal Court?

    Answer. No. The United States, in both the Clinton and the Bush 
Administration, has made clear its view that the International Criminal 
Court should not have jurisdiction over U.S. personnel under a treaty 
to which the United States is not a party.

    Question. To the extent that U.S. forces detain members of al 
Qaeda, in Guantanamo or Afghanistan, do you believe these people are 
protected by international human rights law or by the laws of armed 
conflict?

    Answer. The laws of armed conflict and international human rights 
law have at their roots certain overlapping principles. The specific 
application of each of these bodies of law to a particular set of facts 
raises a range of complex issues, many of which are the subject of 
ongoing litigation or the topic of one of the ongoing Executive Branch 
task forces, and thus would not be prudent for me to address them in 
this setting.
    As a general matter, there will be circumstances in which the two 
bodies of law are mutually exclusive, as in peacetime (when the law of 
war is inapplicable) and circumstances in which they may not be (as in 
a non-international armed conflict occurring in a state's own 
territory). The question is particularly complicated as to many of 
these detainees, whose specific situation may not be squarely addressed 
by existing bodies of law. It is, however, clear from the Supreme 
Court's decision in Hamdan v. Rumsfeld, that detention of alleged Al 
Qaeda forces at Guantanamo is governed by Common Article 3 of the 1949 
Geneva Conventions, which mandates that such detainees be afforded 
certain specified baseline humane treatment protections. More 
generally, however, the U.S. government has noted in briefs arguing 
that its detention authority as to detainees at Guantanamo is premised 
on the Authorization for the Use of Military Force ``as informed by the 
laws of war,'' but has also noted that the laws of war are ``less well-
codified with respect to our current, novel type of armed conflict 
against armed groups such as al Qaeda and the Taliban.'' If confirmed, 
I would look forward to consulting with members of this Committee and 
working on these Issues.

    Question.  Recently, ``universal jurisdiction'' has been invoked in 
Spain to potentially prosecute six officials from the Bush 
administration for giving legal advice that allegedly sanctioned 
torture. Universal jurisdiction has also been the basis for or 
potential prosecutions of Israeli officials involved in military 
operations in the Gaza Strip.
    Given your past advocacy of transnational legal processes and the 
invocation of universal jurisdiction in the United States under the 
Alien Tort Statute, do you believe it is appropriate for Spain to open 
that investigation into U.S. officials? At what point would it be 
appropriate for the United States to protest such an investigation?

    Answer. Prosecutions 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. As a nominee, I 
have not been involved in any interagency discussions that may have 
occurred regarding the Spanish cases. I do have deep faith, however, in 
the United States' vigorous democratic tradition, independent 
judiciary, and well established commitment to the rule of law. I 
therefore believe that the United States, as the nation with the 
predominant interest in this matter, is in the best position to decide 
whether to take any action against former U.S. officials for allegedly 
improper or illegal conduct that occurred in course of their official 
duties. If confirmed, I would work with my colleagues at the Department 
of Justice and other agencies to determine how best to deal with such 
ongoing foreign cases.
Alien Tort Statute Litigation
    Question. You have clearly expressed the view that U.S. companies 
may be sued in U.S. courts for violations of international human rights 
laws for conducting business with governments that are later deemed to 
have committed ham against their own citizens under the Alien Tort 
Statute (ATS).
    Do you believe it is appropriate to sue companies retroactively for 
conduct that U.S. laws did not prohibit at the time of their 
activities? Is it not the role of Congress and the President to 
determine when sanctions on businesses and relations with foreign 
governments should be placed?
    Aren't lawsuits like the South African apartheid case, currently 
pending in the Southern District of New York, fundamentally unfair 
because they are brought after activities occur and when there is no 
actual controlling legal guidance on when a company must refrain from 
conducting business or selling a product to a particular government?
    In light of your public views, would you consider recusing yourself 
from cases regarding the ATS?

    Answer. A defendant in an Alien Tort Claims suit can only be held 
liable if, at the time of the alleged misconduct, the tort was 
committed in violation of a well established international law norm. In 
addition, the Alien Tort Statute itself is U.S., not international law; 
and while international law provides a frame of reference for limiting 
the category of tort claims over which the courts have Alien Tort 
Statute jurisdiction, the decision to allow claims of this nature to be 
raised in federal courts was made by U.S. statute, not imposed by any 
external legal system. The specific question about the South African 
apartheid case relates to a matter of pending litigation in which the 
United States has participated on which I do not believe it would be 
prudent for me to comment.
    If confirmed as Legal Adviser, I would uphold the highest ethical 
standards, and avoid not only actual impropriety, but also endeavor to 
avoid even the appearance of impropriety. I have indicated my general 
plans regarding recusal in my Ethics Undertaking Letter of February 
18,2009 to James H. Thessin, Deputy Legal Adviser and Designated Agency 
Ethics Official of the U.S. Department of State, and in my answers to 
Senator Lugar's prehearing Counsel Questions 2-4. As an academic who 
has written and spoken widely, I have expressed my public views on a 
broad array of legal issues, and nominees could not serve effectively 
were they to recuse themselves on every matter raising an issue on 
which they had previously expressed an opinion. If confirmed, I would 
make specific recusal decisions when presented with a concrete set of 
facts, after full consultation with State Department ethics officials, 
and with the goal of upholding the highest ethical standards.
The Supreme Court and the Constitution
    Question. When you write that the Supreme Court ``must play a key 
role in coordinating U.S. domestic constitutional rules with rules of 
foreign and international'' (Koh, International Law as Part of Our Law, 
98 Am. J. Int'1. L. 43, 53-54 (2004)), isn't it true that the only way 
for the Supreme Court to do that ``coordinating'' is by adjusting its 
interpretations of the Constitution to more closely comport with rules 
of foreign and international law?
    Do you agree that the Supreme Court cannot alter the rules of 
foreign and international law?
    This means that the only way the Supreme Court can ``coordinate'' 
is by changing its interpretations of the Constitution.

    Answer. The Supreme Court can affect rules of foreign and 
international law through its rulings in a number of ways. The manner 
in which the U.S. Supreme Court construes a treaty to which the United 
States is a party can influence the way in which other countries or 
foreign or international courts choose to construe the same treaty. 
Likewise, the Supreme Court's interpretation of customary international 
law can affect how foreign courts choose to construe the same rules. 
And in the same way as a federal court sitting in diversity 
jurisdiction may construe the law of the state in which it sits in a 
way that proves instructive to the highest court of that state, the 
U.S. Supreme Court can construe a principle of international law in a 
way that influences the way a foreign court chooses to construe that 
same principle.
    Likewise, the U.S. Supreme Court need not change its interpretation 
of the U.S. Constitution in order to take international law into 
account. l1he Court can look to international law when resolving open 
questions of constitutional law, as it did when it held that the 
Warrant Clause of the Fourth Amendment does not apply to a search of 
nonresident aliens' property abroad, citing the international law rule 
that a U.S. magistrate cannot validate a search within the territory of 
a foreign sovereign. Or, as I discussed with Senator Corker at my 
confirmation hearing, the Supreme Court can interpret a domestic act 
that incorporates international law, for example when the President 
issues a proclamation acknowledging a customary international law rule 
or Congress enacts a statute that references international law.
General Philosophy
    Question. In our meeting and your other answers before this 
committee, you have often commented that you believe as an academic you 
believe it is your role to inject ideas into the ``marketplace'' of 
idea, but you draw a distinction that when in government positions your 
job is to follow the law. o However, as a legal advisor your job will 
be to interpret laws on behalf of the State Department. Are we to 
believe that you will discard all of your personal thoughts and 
opinions from your interpretations of the law when you advise the State 
Department?

    Answer. No, I certainly will not discard all of my personal 
thoughts and opinions if confirmed as Legal Adviser. But having spent 
my career as a scholar and a government lawyer, I fully understand the 
differences between those two roles. As I explained in my answer to 
Senator Lugar's prehearing Question for the Record 16 and in my 
colloquy at the hearing with Senator Feingold, if confirmed as a 
government official, I would uphold and defend the laws of the United 
States, even if I had personal objections to those laws. And as I noted 
to Senator Shaheen at my confirmation hearing, ``As an academic, you 
speak in your own voice. When you are in the government, you are one of 
many voices working as part of a team.''

      Responses to Additional Questions Submitted for the Record 
                    to Harold Koh by Senator Wicker

    Question. In your testimony during your April 28,2009, nomination 
hearing, you stated that, in your professional opinion, the Bush 
Administration's 2003 decision to invade Iraq was, in the context of 
international law, illegal. In your professional legal opinion, outside 
of cases in which an imminent threat is present, is a legally binding 
United Nations Security Council Resolution required before the U.S. can 
make the decision to go to war? In your legal opinion, do the other 
permanent members of the United Nations Security Council (Russia, 
China, the United Kingdom, and France) therefore exercise a veto over 
the U.S. decision to go to war? Since the 1999 NATO bombing of 
Yugoslavia did not have the benefit of a United Nations Security 
Council Resolution authorizing military operations, was it therefore 
illegal?

    Answer. The permanent members do not have any veto over a United 
States decision to use military force for any permissible purposes. 
Under Article 51 of the UN Charter, states are permitted to use force 
without prior Security Council authorization when exercising their 
inherent right of individual or collective self defense if an armed 
attack occurs, including to use force to protect their own nationals 
without Security Council authorization. As I noted in my answer to 
Senator Lugar's prehearing Question 33, I agree with the 2004 report by 
a high level panel convened by then U.N. Secretary General Kofi Annan 
that states that ``a threatened State, according to long-established 
international law, can take military action as long as the threatened 
attack is imminent, no other means would deflect it and the action is 
proportional.'' Cases involving the possible use of force as a means to 
address widespread atrocities present a different set of issues insofar 
as the rationale for using force in such cases is not based on the 
right of self-defense.
    There are in fact widely differing views whether using force for 
humanitarian purposes is permissible under international law. I believe 
that the U.S. use of force in Kosovo was both lawful and the right 
thing to have done. The Kosovo intervention was expressly premised on 
humanitarian intervention grounds and had broad multilateral support. 
There was no reasonable alternative to the use of force. As Assistant 
Secretary of State for Democracy, Human Rights and Labor during that 
period, I read extensive reports indicating that forces from the 
Federal Republic of Yugoslavia and Serbia were engaged in massive and 
sustained repression against the Kosovar Albanian population, they had 
acted in flagrant contravention of resolutions that the UN Security 
Council had adopted under Chapter VII, and a humanitarian catastrophe 
was unfolding that threatened not only the people of Kosovo but the 
security and stability of the entire region. The intervention was 
supported by a multilateral NATO decision, and significantly, shortly 
after NATO commenced military operations, a resolution introduced in 
the Security Council would have called NATO's use of force unlawful, 
but that resolution was soundly defeated by a 12 to 3 vote.
    If confirmed as Legal Adviser, I would similarly want to look 
carefully at the specific facts and circumstances of any particular 
proposed use of military force involving such humanitarian 
considerations before rendering a legal opinion regarding their 
permissibility under international law.

    Question. In your testimony during your April 28, 2009, nomination 
hearing, you stated that, in your professional opinion, the Bush 
Administration's 2003 decision to invade Iraq was, in the context of 
international law, illegal. You also stated that you were not able to 
determine the legality of Israel's 1981 bombing of Iraq's Osirak 
nuclear reactor because you were not in the Israeli Government at the 
time of the bombing. You explained you were not privy to any 
information that the Israeli Government may have held that the Osirak 
nuclear reactor presented an imminent threat to Israel. As a result, 
you stated you believed the Israeli Government's bombing of the Osirak 
reactor may have been legally protected under the right to self-defense 
granted to members of the United Nations under the United Nations 
Charter. In light of the fact that you were not been a member of the 
United States Government in 2003 or the following years, what is 
substantively different between the two incidents that allows you to 
pronounce definitively on the United States' 2003 invasion of Iraq 
without being able to on Israel's 1981 bombing of Osirak?

    Answer. The Bush administration's justification for the use of 
force in Iraq in 2003 relied on the interpretation of publicly 
available facts and legal instruments that were not similarly available 
in the 1981 Osirak case. Specifically, the Bush administration set out 
its justification for the Iraq invasion in a March 20, 2003, letter 
from the U.S. Permanent Representative to the United Nations to the 
President of the Security Council, and this view was elaborated in a 
law review article co-authored by former State Department Legal Adviser 
William Taft in 2003 (97 A.J.I.L. 557 (2003). That legal rationale 
turned on a particular interpretation of publicly available documents: 
the relevant resolutions that had been adopted by the Security Council 
in the dozen years before the invasion, leading ultimately to the 
adoption of UN Security Council resolution 1441 in November 2002. As an 
international lawyer, I undertook my own analysis of these resolutions, 
but came to a different legal conclusion about how they should be 
interpreted.
    Mr. Taft was an outstanding State Department Legal Adviser, whom I 
hold in highest regard, and this was an issue about which reasonable 
international lawyers could differ, and which in fact generated a 
significant amount of disagreement, within both the United States and 
foreign legal communities. As an international lawyer, I undertook my 
own analysis of these resolutions, but came to a different legal 
conclusion about how they should be interpreted. Mr. Taft and I both 
used the same methodology: we agreed that the question whether the Iraq 
invasion conformed with international law turned on the proper 
interpretation of the relevant resolutions that had been adopted by the 
UN Security Council in the dozen years before the invasion. As I 
indicated in my response to Senator Isakson's question in the 
Committee's hearing on April 28, in looking closely at those 
resolutions, my conclusion was that their wording did not provide the 
necessary support under international law.
    In the Osirak case, Israel's justification was not based on UN 
Security Council resolutions, but on the inherent right of self-
defense. As I have noted in my answer to Senator Lugar's prehearing 
Question 32, determining whether the requirements of such a 
justification are satisfied in any particular case can present 
exceedingly difficult questions that would need to be evaluated in the 
context of the particular circumstances existing at the time and the 
precise nature of the threat being faced.

    Question. In your professional legal opinion, are all treaties, 
signed by the Executive Branch and ratified by the Senate, that 
implicate domestic law self-executing? Are such treaties enforceable by 
a court-of-Iaw without Congress and the Executive Branch first enacting 
implementing statutes and regulations? If such treaties are self 
executing, please list which treaties the Government or the United 
States has heretofore not considered self-executing that it ought to 
have considered self executing. Following Senate ratification of 
treaties that implicate domestic law, who has standing to sue using 
those treaties as a controlling legal authority? If you are confirmed 
as Department of State Legal Advisor, will you advise the President, 
the Secretary or State, the Attorney General, and the Solicitor General 
of the United States to defend the self-executing nature of treaties 
that implicate domestic law in a court-of-Iaw?

    Answer. I do not consider that all treaties or treaty Provisions 
arc self-executing. The Supreme Court has made this clear, beginning in 
Foster v. Neilson, 27 U.S. 253 (1829), and recently in Medellin v. 
Texas, 128 S.C. 1346 (2008). A self-executing treaty may not be 
directly enforceable in a U.S. court in all respects. For example, a 
self-executing treaty does not necessarily create private rights of 
action in U.S. courts, and the same treaty may have both self-executing 
and non self-executing provisions. I respect the Senate's role in 
determining the domestic effect of treaties and, if confirmed, I would 
expect to consult with the Senate regarding the domestic legal effect 
of new treaties being considered by the Senate. With respect to any 
particular treaty, I can assure you that I would be committed to 
providing the best possible legal advice to the Secretary of State and 
other State Department officials, consistent with the Constitution and 
laws of the United States.

    Question. In your testimony before the U.S. Senate Committee on 
Foreign Relations on June 13,2002, in support of Senate advice and 
consent of the Convention on the Elimination of all Forms of 
Discrimination Against Women (CEDAW), you testified that it is 'flatly 
untrue' that 'CEDAW supports abortion rights' and that 'on its face, 
the CEDAW treaty itself is neutral on abortion'. Article 17 of the 
CEDAW treaty establishes a Committee under United Nations auspices 
charged with implementing CEDAW. That Committee has on several 
occasions advised CEDAW states-parties that it is inconsistent with 
their treaty obligations to prohibit or place limitations on abortion 
access. Please address this topic in light of your 2002 testimony.

    Answer. Article 17 of the Convention states that the Committee's 
purpose is to consider ``the progress made in the implementation of the 
. . . Convention'' and Article 21 provides that the Committee ``may 
make suggestions and general recommendations.'' Neither of these 
provisions, nor any other provision of the Convention, vests the CEDAW 
Committee with legally binding authority over a State Party. I have 
never considered the views of the CEDAW Committee--as opposed to the 
text of the treaty, which is the only legal instrument that the United 
States might ratify--to be legally binding on the States parties, or 
upon other States who might eventually ratify the treaty. The Committee 
was and is free to offer its interpretation of particular issues as 
applied to particular countries, just as the U.S. Government would be 
free to disagree with the CEDAW Committee were the United States to 
become party to the treaty and to reach different conclusions on its 
meaning and scope.

    Question. Despite the Senate's declining to ratify the Convention 
on the Elimination of All Forms of Discrimination against Women (CEDAW) 
heretofore, is the United States nevertheless legally-bound by CEDAW as 
a result of its widespread international acceptance? Is CEDAW self-
executing? If the United States is ever legally-bound by CEDAW, would 
it correspondingly be legally-bound by the decisions of the United 
Nations CEDAW Committee?

    Answer. No, the United States is not legally bound by CEDAW. As 
Assistant Secretary of State for Democracy, Human Rights and Labor, and 
as an academic, I argued that the United States should ratify the 
treaty precisely because it was not yet legally bound to its 
provisions, and my view is that remains true today as well. With 
respect to whether CEDAW is self-executing for purposes of United 
States law, I note that the 1980 letter of submittal from then-
Secretary of State Muskie, which accompanied President Carter's letter 
transmitting the Convention to the United States Senate, stated that: 
``Virtually all of the articles of the Convention are, in our judgment, 
not self executing and would probably not be construed as such as they 
appear to contemplate that legislative or other implementing action be 
taken by the parties (beyond ratification) in order to carry out the 
Convention's provisions.''
    If the Senate were to consider giving its advice and consent to the 
treaty, it would need to decide whether it agreed with that assessment. 
As a general matter, as I noted in my oral testimony and in my answers 
to Senator Lugar's prehearing Questions for the Record 6 and 27, I have 
long argued in my writings that Article II of the Constitution mandates 
that the Senate and the President act as partners in the treaty 
process. If confirmed, I would respect the Senate's role in determining 
the domestic effect of this treaty by consulting with the Senate on 
this and other aspects of the proposed treaty.
    Finally, as noted in greater detail in my answer to Senator 
Wicker's Question 4, were the United States to become a State Party to 
the Convention, it would not be legally bound by decisions of the CEDAW 
Committee, which do not form part of the text of the treaty.

    Question. During your April 28, 2009 nomination hearing, you 
testified that the United States' 2003 invasion of Iraq was illegal in 
the context of international law. I inquired whether, in your 
professional legal opinion, Iraq was entitled to a remedy at-law as a 
result of its being the subject of an unjust war. You responded by 
invoking the Jus in bello/Jus ad bellum distinction. Please clarify how 
the distinction applies.
    Are countries that are attacked in violation of international law, 
but wherein the war is waged justly, entitled to a remedy-at-Iaw?
    Are countries that are legally attacked, but wherein the war 
against them are unjustly waged, entitled to a remedy-at-law? If so, is 
it therefore the case that, in your professional legal opinion, Iraq is 
not entitled to a remedy-at-law despite having been subject to what is 
in your view an illegal invasion?

    Answer. My point at the hearing was that any international legal 
violation in the way the United States may have decided to use force in 
Iraq (which is governed by the law Jus ad bellum would not 
automatically call into question the legality of any of the various 
actions taken by the United States in the course of conducting that war 
(which is governed by the law of Jus in bello). If a foreign government 
believed that the United States had illegally used force against it and 
chose to pursue such a remedy before either a domestic or international 
court, it would encounter severe--and in my view, preclusive--obstacles 
related to jurisdiction, standing, justifiability, admissibility and 
enforcement.

      Responses to Additional Questions Submitted for the Record 
                     to Harold Koh by Senator Casey

Private Security Contractors
    Question.  Because of insufficient numbers of U.S. government 
diplomatic security personnel at the State Department, the Department 
has turned to the use of private security contractors such as 
Blackwater Worldwide (now XE) and Triple Canopy to provide personal 
protective services in areas such as Iraq and Afghanistan. Today the 
State Department has contracts with private security contractors 
providing about 1,400 armed personnel in Iraq, and about 75 armed 
contractors in Afghanistan.
    I have expressed my strong concern over the excessive use of PSCs, 
especially in Iraq, in the aftermath of the incident at Mansoor Square 
in the fall of 2007 when Iraqi civilians were gunned down after 
Blackwater guards opened fire in a crowded public square with no 
apparent provocation ion. It left a stain on the reputation of all U.S. 
military forces operating in Iraq, even though only private security 
contractors were involved. I have worked with Chairman Kerry in 
encouraging the State Department to reduce the role of PSCs as we draw 
down our combat troop levels in Iraq.
    I have also been concerned about a potential gap in our law that 
prevents the United States from prosecuting criminal offenses committed 
by U.S. contractors assigned to federal agencies other than the Defense 
Department overseas. Accordingly, the Blackwater contractors involved 
in the September 2007 incident may be able to walk away because they 
were working for the State Department.

    Question. How would you draw the distinctions between functions 
that private security contractors can serve and those reserved for U.S. 
federal employees under the ``inherently governmental'' restrictions?

    Answer. My understanding is that the State Department's private 
security contractors who protect U.S. Government officials in Iraq and 
Afghanistan are not authorized to engage in law enforcement duties 
(such as arresting or detaining suspects) or offensive combat 
operations. The contractors' exclusion from these functions are two of 
the factors that contribute to the Department's determination that 
their functions are not ``inherently governmental''
    The determination of whether certain functions are inherently 
governmental is guided by laws and regulations that leave most specific 
cases to the judgment of the relevant department or agency. If 
confirmed, I will work with other senior officials to ensure that the 
State Department continues to act in full compliance with all 
applicable laws and regulations with regard to the use of contractors, 
including the ``inherently governmental'' restriction.

    Question. What is your understanding as to whether the United 
States or Iraq exercise primary criminal and civil jurisdiction over 
those contractors not under contract to DOD who operate in Iraq? What 
implications does this have for continuing U.S. operations in Iraq?

    Answer. My understanding is that since the entry into force of the 
U.S.-Iraqi Security Agreement and the Iraqi Parliament's suspension of 
Coalition Provisional Authority (CPA) Order 17, all U.S .-affiliated 
contractors operating in Iraq are now subject to the criminal and civil 
jurisdiction of Iraqi courts. U.S. law also provides a basis for the 
United States to exercise jurisdiction over crimes that contractors 
commit in Iraq in a number of circumstances.
    With regard to the impact of these legal rules on U.S. operations, 
my understanding is that the immunity from Iraqi legal process for 
contractual acts granted by CPA Order 17 was unusual, and that the 
situation today in Iraq is now in line with most other countries around 
the world where our contractors operate. For example, U.S. contractors 
in Afghanistan have never possessed blanket immunity from Afghan legal 
process. In this period of transition in Iraq, there are numerous and 
significant issues to resolve to ensure that U.S. operations are able 
to continue safely, while respecting Iraqi law. I also understand that 
several joint U.S.-Iraqi committees have been established to address 
these complex issues, including the rules governing contractor 
operations. If confirmed, I look forward to participating in 
discussions in this area and consulting with you and other interested 
members of the Committee and the Senate regarding these important 
questions.

    Question. In your opinion, are U.S. laws sufficient to hold private 
security contractors and their employees liable for any actions in 
overseas contingency operations in Iraq and Afghanistan if those 
actions are not in support of military operations? Would the protection 
of State Department, USAID, and other U.S. government officials in 
those countries be considered in support of military operations?

    Answer. As Secretary Clinton has said, the Department of State 
needs to take a hard look at the issue of security contractors abroad 
and how they are used and held accountable, while at the same time 
recognizing that we need to provide security for our diplomats if they 
are to perform their vital mission in Iraq and other dangerous places. 
If confirmed, I will ensure that my office has reviewed the full range 
of legal issues that the Department's use of private security 
contractors generates and whether additional legislation might be 
beneficial. As an unconfirmed State Department nominee, I would need to 
defer to the Department of Justice on the specific question of whether 
any given U.S. contractor is acting ``in support of the DOD mission 
overseas within the meaning of the Military Extraterritorial 
Jurisdiction Act, a question that is at issue in an ongoing criminal 
proceeding.

                                  
