[Congressional Record (Bound Edition), Volume 155 (2009), Part 12]
[Senate]
[Page 15858]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             KOH NOMINATION

  Mr. CORNYN. Mr. President, I rise to speak on the nomination of 
Harold Koh whom the President has nominated to be legal advisor to the 
State Department. This is a relatively obscure but very important 
position at the State Department. The legal advisor operates frequently 
behind the scenes but on such important issues as international 
relations, national security, and in other areas.
  One area that is very important is that the legal advisor is often 
the last word at the State Department on questions regarding treaty 
interpretation; that is, international agreements between countries. 
The legal advisor often gives legal advice to the Secretary of State 
and the President of the United States during important negotiations 
with other nations. We also know from experience that the legal advisor 
can be a very important voice in diplomatic circles, especially if he 
or she views America's obligations to other nations and multilateral 
organizations in a particular way, particularly if they have strong 
views.
  Professor Koh has an impressive academic resume and professional 
background. He is an accomplished lawyer and a scholar in the field of 
international law. Nevertheless, I do not believe that Professor Koh is 
the right person for this job. I believe that many of his writings, his 
speeches, and other statements are in tension with some very core 
democratic values in this country. I believe that his legal advice on 
transnational law, if taken to heart, could undermine America's 
sovereignty or security and our national interests.
  I urge my colleagues not to take my word for this but look for 
themselves at Professor Koh's record and consider whether he is the 
right person to be advising Secretary Clinton and other diplomats at 
the State Department on legal issues pertaining to our relationship 
with other nations and such key issues.
  I mention this notion of transnational jurisprudence, which is a 
little arcane, but I will explain what it is all about. Professor Koh 
has been an advocate for transnational jurisprudence, which is the idea 
that Federal judges should look at cases and controversies as 
opportunities to change U.S. law and to make it look more like 
international or other foreign law.
  I am not saying that all foreign law is bad, but our Founders 
acknowledged that when we take the oath of office here, we pledge to 
uphold and defend the Constitution of the United States of America, not 
some unsigned, unratified international treaty or an expansive notion 
of international common law which Professor Koh embraces and advocates.
  We know Americans don't have a monopoly on virtue and wisdom and 
certainly we can benefit from exchanging ideas with other democratic 
countries. But Professor Koh's notion that it is appropriate and proper 
for a Federal judge to look at foreign law in deciding what the 
Constitution of the United States means, and what the laws of the 
United States require, to me, is at complete tension with this idea 
that we will uphold American values and the American Constitution and 
American laws passed by our elected officials. We do not appropriately 
ask Federal judges to look at unratified treaties, some notion of 
international common law and, certainly, the laws of other countries in 
interpreting our laws in the United States.
  Professor Koh seems to have a different view. He said Federal judges 
should use their power to ``vertically enforce'' or ``domesticate'' 
American law with international norms and foreign law.
  He has argued that Federal judges should help ``build the bridge 
between the international and domestic law through a number of 
interpretive techniques.''
  Where will these ``interpretive techniques'' lead us? Evan Thomas and 
Stuart Taylor asked that question in Newsweek magazine earlier this 
year. They answered based on their investigation:

       Were Koh's writings to become policy, judges might have the 
     power to use debatable interpretations of treaties and 
     ``customary international law'' to override a wide array of 
     federal and state laws affecting matters as disparate as the 
     redistribution of wealth and prostitution.

  Transnational jurisprudence is not the only controversial view 
professor Koh holds. Again, as a law professor and dean of Yale Law 
School, I understand law professors advocating cutting edge and, 
indeed, provocative legal interpretations. But to say this is 
appropriate not in the classroom as a teaching exercise but, rather, 
important for Federal judges to do in the exercise of their article III 
powers is an entirely different notion altogether.
  In 2002, Professor Koh gave a lecture titled ``A World Drowning in 
Guns,'' in which he argued for a ``global gun control regime.''
  In 2007, he argued that foreign prisoners of war held by the U.S. 
Armed Forces anywhere in the world--not just enemy combatants held at 
Guantanamo Bay--are entitled to the same rights as American citizens 
under habeas corpus law as applied by our Federal courts.
  Perhaps most timely, Professor Koh appears to draw a moral 
equivalence between the Iran regime's political suppression and human 
rights abuses, on the one hand, and America's counterterrorism policies 
on the other hand.
  Professor Koh has written:

       [U.S.] criticism of Iranian ``security forces [who] monitor 
     the social activities of citizens, entered homes and offices, 
     monitored telephone conversations, and opened mail without 
     court authorization'' is hard to square with our own National 
     Security Agency's sustained program of secret, unreviewed, 
     warrantless electronic surveillance of American citizens and 
     residents.
       Furthermore, the United States cannot stand on strong 
     footing attacking Iran for ``illegal detentions'' when 
     similar charges can be and have been lodged against our own 
     government.

  The U.S. policies that Professor Koh is criticizing were authorized 
by the Congress in a bipartisan fashion, and each of us is accountable 
to our constituents for the decisions we make.
  It is offensive to compare the policies of the U.S. Government with 
those of a theocratic dictatorship that responds to criticism with 
brutal violence against its own people.
  We have heard enough moral equivalence regarding Iran over the last 
week and a half. We have heard enough apologies for the actions of the 
United States--and enough soft-peddling of the brutal suppression by 
the Iranian regime of their own people. We don't need another voice in 
the administration whose first instinct is to blame America--and whose 
long-term objective is to transform this country into something it is 
not.
  For these reasons, I urge my colleagues to vote no on the cloture 
motion on this nomination.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, before I begin, are we in morning business 
or on the Koh nomination?
  The PRESIDING OFFICER. We are in morning business.

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