[Congressional Record (Bound Edition), Volume 155 (2009), Part 12]
[Senate]
[Pages 15862-15863]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             KOH NOMINATION

  Mr. INHOFE. I do have a couple of comments to make concerning the 
remarks by my good friend from Vermont. I will do that at the 
conclusion of another subject I feel some passion about, and that has 
to do with the nomination of Harold Koh by President Obama. He is 
nominee for the position of Legal Adviser to the State Department.
  I understand cloture has been filed on Harold Koh. I wanted to come 
to register my strong opposition and assure the American people that 
their representatives in Congress are not going to let this nominee 
sail through unopposed and to let them know there are some of us here 
in the Senate who will require full and extensive debate before this 
nominee receives a vote. I think in doing so you almost have to ask the 
question as to what ever happened to the understanding we have always 
had in this country as to what sovereignty really means.
  As Legal Adviser to the State Department, Koh would be advising the 
Secretary of State on the legality of U.S. action in the international 
forum and interpreting and advocating for international law and 
treaties. The significance of this position and its effect on our 
sovereignty and security should not be understated. Koh is a self-
proclaimed transnationalist. Adherents to this school of thought 
believe international law is equal to or should take precedence over 
domestic law and international court rulings have equal authority to 
the decisions of a representative government. That is very significant. 
I know he actually believes this and he adheres to this school of 
thought, that international law is equal to or should take precedence 
over domestic law. Koh's transnational principles could have serious 
implications on U.S. sovereignty, especially regarding the 
authorization of the use of force in the prosecution of the war on 
terror, gun rights, abortion, and many other issues.
  Koh believes a nation that goes to war should have--must have United 
Nations Security Council authority, going as far as writing that the 
United States was part of an ``axis of disobedience'' by invading 
Iraq--or should we say by liberating Iraq.
  In October of 2002, Koh wrote:

       I believe . . . that it would be a mistake for our country 
     to attack Iraq without explicit U.N. authorization, because 
     such an attack would violate international law.

  Additionally, he supports ratification of the International Criminal 
Court, which could subject our troops to prosecution in a foreign 
court.
  Implementation of this interpretation of international law raises a 
number of alarming questions. If the United States is required to gain 
U.N. authority for military action, what punitive actions might the 
United States be subjected to if it unilaterally uses preemptive force? 
Would our Navy SEALs have had to wait for authorization from the 
international body before rescuing the American being held hostage off 
the Horn of Africa? I think 99 percent of American people said they 
should have that authority and we should not have to go to any kind of 
an international court.
  I don't know where this obsession has come from that nothing is good 
unless it is international anymore.
  In 1992, George Will said:

       There may come a time when the United States will be held 
     hostage to . . . the idea that the legitimacy of U.S. force 
     is directly proportioned to the number of nations condoning 
     it.

  That was back in 1992, and this is what is happening today. I hope 
that day never comes. The decisions made to protect our great Nation 
should not

[[Page 15863]]

be made by members of an international body but by men and women who 
are elected by the people of these United States.
  Equally concerning is Koh's treatment toward Department of Defense 
recruiting efforts. In October of 2003--some of us remember this--Koh 
led a team of Yale law faculty in filing an amicus brief in support of 
a lawsuit against the U.S. Department of Defense, claiming the Solomon 
amendment was unconstitutional. The Supreme Court rejected Koh's 
arguments unanimously. That was at a time when there were very few 
things that were unanimous in the Supreme Court. He was rejected 
unanimously.
  Writing for the Court, Justice Roberts stated:

       Nothing about recruiting suggests that law schools agree 
     with any speech by recruiters, and nothing in the Solomon 
     amendment restricts what the law schools may say about the 
     military's policies.

  Further, Koh supports accession to the International Criminal Court, 
the United Nations Convention on the Law of the Sea Treaty, the United 
Nations Convention on the Rights of the Child, and the Inter-American 
Convention Against Illicit Manufacturing of and Trafficking in 
Firearms. What is this CIFTA that has been promoted by President Obama? 
That is that we yield to an international group in terms of how we 
manufacture and distribute weapons in this country.
  All of these treaties would greatly impact the lives of everyday 
Americans and would require the United States to alter its domestic law 
to meet their respective parameters.
  In 2002, Koh spoke at Fordham University Law School about a ``World 
Drowning in Guns.'' That gives an indication where he is coming from. 
His speech was published in the Fordham Law Review. Koh's topic was the 
international arms trade, but, as usual, his analysis had serious 
domestic implications. Koh wrote that American legal scholars should 
pursue ``the analysis and development of legal and policy arguments 
regarding international gun controls'' through constitutional research 
on the second amendment. In other words, Koh believes the best way to 
regulate guns in America is through international law, through a global 
gun control regime.
  As Legal Adviser, Koh would be in a position to pass judgment on 
whether a proposed treaty would raise legal issues for the United 
States, including issues related to the second amendment. He would, 
therefore, be able to endorse treaties that could be used by the courts 
to restrict the individual right to keep and bear arms--an idea he is 
clearly and openly in favor of. It is simply not true to say that his 
beliefs about gun control--this is what some people say--the second 
amendment right, doesn't really matter because he will be in the State 
Department advising on international law. On the contrary, he wants to 
use international law to restrict constitutional freedoms in this 
country.
  In his position, he will have the power to advise the administration 
and to testify before the Senate about what reservations might be 
needed when ratifying a treaty to protect constitutional freedoms. 
However, he has a history of advocating for treaties without 
conditions. He cannot be trusted to express reservations with treaties 
that I believe will negatively impact everyday Americans.
  The fact that he is in the State Department doesn't make him safe, it 
makes him more dangerous. This is exactly where, with the possible 
exception of the Supreme Court, he wants to be. This is not an 
accident. It is his strategy. He realizes he cannot achieve his goals 
through legislation, so he has turned to international law. If he can 
establish that international law is binding on the United States, 
regardless of whether the Senate has ratified the treaty in question, 
activists can avoid Congress and work the issue through the courts.
  If you believe the second amendment confers an individual right to 
bear arms on the American people, then I urge you to reaffirm that 
principle by voting against Harold Koh. If you believe our Nation 
should not be subjected, by a variety of treaties, to threats to our 
national sovereignty and American way of life, I urge you to reaffirm 
those values by voting against the nominee.
  I mentioned several international treaties he has promoted. It is not 
just confined to our second amendment rights, it is everything else. 
The basis of his influence in these areas is that somehow international 
law should have precedence over our laws. This is something we have 
been in trouble with for a long period of time. Every time we yield to 
the United Nations, we end up with a very serious problem. I have 
talked to a number of our troops overseas who are very much concerned 
about being subjected to the international court.
  Let me make one comment before I yield back any remaining time, and 
that is on the subject that was discussed by the Senator from Vermont.

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