[Congressional Record (Bound Edition), Volume 155 (2009), Part 12]
[Senate]
[Pages 15865-15866]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             KOH NOMINATION

  Mr. DeMINT. Mr. President, I rise today, regretfully, to oppose the 
nomination of Harold Koh to be the State Department legal adviser. It 
is hard to do because in meeting Mr. Koh, I certainly enjoyed him. I 
have friends back in South Carolina who know him. He is certainly a 
very likable person. But his nomination to this important position 
requires some scrutiny about what his philosophy is when it comes to 
the United States and our international agreements and the sovereignty 
of our country.
  I oppose Mr. Koh's nomination for many reasons, and most important of 
these is my belief that if confirmed, he will work to greatly undermine 
the principles of sovereignty that I believe all Americans expect of 
our Federal Government.
  Let me talk a little bit about his role and what that would be if he 
is confirmed as the legal adviser to the State Department.
  According to the State Department's Web site, the legal adviser would 
furnish ``advice on all legal issues, domestic and international, 
arising in the course of the department's work and negotiate, draft, 
and interpret international agreements involving peace initiatives, 
arms control discussions, and private law conventions on subjects such 
as judicial cooperation in recognition of foreign judgments.''
  On a daily basis, Mr. Koh will also advise our government on a 
variety of Federal legal issues that he believes affect international 
law and our foreign relations. He will determine positions the United 
States should take when dealing with international bodies and in 
international conferences, and counsel administration officials on 
international negotiations, treaty interpretations, and treaty 
implementations.
  As we move forward in the future as a country, one of the biggest 
debates we are going to have is what role does American sovereignty 
play in the world and how important is it, and there is a difference of 
philosophy here in Washington today.
  So as we review this nomination, it is very important to us, 
particularly Republicans, that we start from the foundation in our 
State Department that we will act in the best interest of our country 
and the American people, and that our interests as a country are 
paramount in how we deal with the rest of the world. Of course, that 
does not mean that we don't try to support other countries as best we 
can, but the fact is, the role of the Federal Government is to protect 
and defend our people and our interests. So we need to make sure this 
key adviser to our State Department and our international relations 
believes those principles.
  Many of Mr. Koh's supporters claim that the allegations that have 
been voiced against him, such as undermining the Constitution, are 
unjustified. However, Mr. Koh's own writings suggest otherwise. For 
example, in a 2004 law review article titled ``International Law As 
Part Of Our Law,'' Mr. Koh states:

       U.S. domestic courts must play a key role in coordinating 
     U.S. domestic constitutional rules with rules of foreign and 
     international law, not simply to promote American aims but to 
     advance the broader development of a well-functioning 
     international judicial system. In Justice Blackmun's words, 
     U.S. courts must look beyond narrow U.S. interests to the 
     ``mutual interests of all nations in a smoothly functioning 
     international legal regime'' and, whenever possible, should 
     ``consider if there is a course of action that furthers, 
     rather than impedes, the development of an ordered 
     international system.''

  Certainly we want good relations with countries all over the world, 
and we are looking at making treaties of various kinds, but an idea of 
a smoothly functioning international legal regime, when it subordinates 
the interests of the American legal regime, should cause all of us to 
stop and think. Our protection, our prosperity, our defense--everything 
we are as a country--depends first on our sovereignty, as does our 
support of other nations depend on our sovereignty. This idea of a 
global world order of some kind is frightening to many people, 
including myself.
  It appears Mr. Koh is reinterpreting our own Constitution to comply 
with rules of foreign and international law instead of first protecting 
and defending our Constitution and seeing how we can interface with 
other governments. Frankly, this statement should frighten American 
citizens who believe in upholding our Constitution, and I hope it will 
get the attention of my colleagues. Certainly the President has the 
right to nominate anyone he wants, but it is our role as the Senate to 
provide advice, and in this case I think disclosure to the American 
people, of this nominee and how he might direct our State Department 
activities.
  In 2002, in a hearing before the Senate Committee on Foreign 
Relations, Mr. Koh testified in support of ratification of the United 
Nations Treaty on the Convention of the Elimination of All Forms of 
Discrimination Against Women. Not only did Mr. Koh testify in support 
of ratifying this treaty, he opposed any conditions to ratification of

[[Page 15866]]

the treaty, even those proposed by the Clinton administration. This 
included the very important condition stating that the treaty is not 
self-executing; that it has no domestic legal effect absent an act of 
Congress.
  Our rules here are that the President can sign a treaty, but it has 
to be ratified here in the Senate before it is executed. To insist that 
once this is agreed to by the administration it becomes self-acting 
violates those principles.
  Mr. Koh also claims that allegations by those who opposed the treaty 
due to its promotion of abortion, the legalization of prostitution, and 
the abolishment of Mother's Day are untrue. However, one only needs to 
look at the policies issued by the committee--the United Nations body 
charged with monitoring countries' compliance with their legal 
obligations under the treaty--to know that Mr. Koh's claims are untrue.
  For example, on May 14, 1998, the committee interpreted the treaty to 
require that ``all states of Mexico should review their legislation so 
that, where necessary, women are granted access to rapid and easy 
abortion.''
  In February 1999, the same committee criticized China's law 
criminalizing prostitution and recommended that China take steps to 
legalize it.
  This does not represent American values.
  Also, in February 2000, the committee made the following outrageous 
statement regarding Belarus's celebration of Mother's Day:

       The Committee is concerned by the continuing prevalence of 
     sex-role stereotypes and by the reintroduction of such 
     symbols as a Mothers' Day and a Mothers' Award, which it sees 
     as encouraging women's traditional roles.

  As these former Soviet republics, countries all over the world, are 
looking to America for guidance as they develop their democracies and 
institutions of freedom, these kinds of statements coming out of the 
United Nations are concerning, and I certainly don't want this same 
philosophy coming out of our own State Department.
  How can anyone argue that ratification of a radical treaty such as we 
have discussed will not undermine sovereignty? It is pretty obvious it 
would.
  In a speech entitled ``A World Drowning in Guns,'' published in the 
Fordham Law Review in 2003, Mr. Koh states:

       If we really do care about human rights, we have to do 
     something about the guns.

  That ``something'' is a ``global system of effective controls on 
small arms.''
  In that same speech, Mr. Koh also expressed his disappointment that 
the 2001 United Nations gun control conference had not led to a legally 
binding document. He urged that the next steps be the creation of 
international arms registries, giving nongovernmental organizations, 
such as the International Action Network on Small Arms, power to 
monitor government compliance with international gun control and 
stronger domestic regulation.
  In a May 4 column in Human Events, Brian Darling of the Heritage 
Foundation writes:

       Koh advocated an international ``marking and tracing 
     regime.'' He complained that the ``United States is now the 
     major supplier of small arms in the word, yet the United 
     States and its allies do not trace their newly manufactured 
     weapons in any consistent way.'' Koh advocated a United 
     Nations governed regime to force the U.S. ``to submit 
     information about their small arms production.''
       Dean Koh supports the idea that the United Nations should 
     be granted the power to ``standardize national laws and 
     procedures with member states of regional organizations.'' 
     Dean Koh feels that the U.S. should ``establish a national 
     firearms control system and a register of manufacturers, 
     traders, importers, and exporters'' of guns to comply with 
     international obligations. This regulatory regime would allow 
     the United Nations members such as Cuba and Venezuela and 
     North Korea and Iran to have a say in what type of gun 
     regulations are imposed on American citizens.

  This is not constitutional government in America.

       Taken to their logical conclusion, Dean Koh's ideas could 
     lead to a national database of all firearm owners, as well as 
     the use of international law to force the U.S. to pass laws 
     to find out who owns guns. All who care about freedom, should 
     read his speech. Senators need to think long and hard about 
     whether Koh's extreme views on international gun control are 
     appropriate for America.

  Let me cover a couple of other things. This one is about the Iraq 
war. Mr. Koh published a commentary in the Hartford Courant on October 
20, 2002, entitled ``A Better Way to Deal With Iraq.'' Here is an 
excerpt from that article.

       I believe that terrorism poses a grave threat to 
     international peace and security. I lost friends on September 
     11 and have shared in the grief of their families. I believe 
     that Saddam Hussein is an evil and dangerous man who daily 
     abuses his own people and who wishes no good for our country 
     or the world. I fear his weapons of mass destruction and 
     believe they should be eliminated. Yet I believe just as 
     strongly that it would be a mistake for our country to attack 
     Iraq without explicit United Nations authorization. I believe 
     such an attack would violate international law.

  We need to think for a minute and digest what this means. Even though 
Mr. Koh believed that attacking Iraq would be in the best interest of 
America and the world, he believed we should wait on explicit 
directions from the United Nations before we acted. Both this 
commentary and his testimony before the Senate Committee on Foreign 
Relations demonstrate that Mr. Koh believes that if our President and 
Congress, empowered by our Constitution, decide military action is 
needed to defend our Nation from harm, we must get United Nations 
approval or our actions are illegal. This is an incredible position for 
the chief legal adviser to the State Department to adhere to.
  Some may argue that Mr. Koh's position on the Iraq war is merely a 
principled liberal position. However, his belief that countries----
  The PRESIDING OFFICER. The Senator has spoken for 10 minutes.
  Mr. DeMINT. Mr. President, I ask unanimous consent for 1 more minute 
to conclude.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. Mr. President, I encourage my colleagues to look at the 
record. Mr. Koh has a very winsome personality, which I appreciate, but 
the record gives us many reasons for concern that the State Department 
may not be acting in the best interests of our country under his legal 
counsel.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The majority leader.

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