[Congressional Record (Bound Edition), Volume 155 (2009), Part 12]
[Senate]
[Pages 16217-16222]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         GLOBAL CLIMATE CHANGE

  Mr. KERRY. Mr. President, I want to make some closing comments with 
respect to the nomination of Dean Koh. But before I do that, I want to 
have a chance to share a few thoughts with the distinguished chairman 
of the Environment and Public Works Committee, who has been an 
extraordinary leader on this subject of global climate change.
  Let me be the first to affirm that I rather think the Senator has a 
terrific life, and I am proud of what she is doing with respect to this 
issue. It is really interesting. I think it is important for us to talk 
about a few of the issues.
  The Senator from Oklahoma, Mr. Inhofe, has made some comments on the 
floor of the Senate that are either wrong on the facts or wrong in 
terms of the judgment politically.
  I want to say upfront, as my colleague has said, I enjoy my 
conversations and my relationship with the Senator enormously. We are 
both pilots. He flies often, much more frequently than I do these days, 
but we both share a passion for flight and for aerobatics, and for 
different kinds of airplanes, and I love talking to him about them.
  I wish he were up to state of the art with respect to the science on 
global climate change. He made a number of comments on the floor of the 
Senate which Senator Boxer and I just have to set the record straight 
on: No. 1, suggesting that the science is somehow divided. That is 
myth. It is wishful thinking, perhaps, on the part of some people. I 
suppose if your definition of divided is that you have 5,000 people 
over here and 2 people over here--who want to put together a point of 
view that is usually encouraged and, in fact, paid for by a particular 
industry or something--you can claim it is divided.
  But by any peer review standard, by any judgment of the broadest 
array of scientists in the world--not just the United States, across 
the planet--the science is not divided. The fact is, Presidents of 
countries are committing their countries to major initiatives on global 
climate change.
  The science is clearly not divided with respect to global climate 
change. In fact, every major scientist in the United States whose life 
has been devoted to this effort, such as Jim Hansen at NASA, or John 
Holdren, the President's Science Adviser--formerly at Harvard--these 
people will tell you in private warnings that are even far more urgent 
than the warnings they give in public. The reason is, the science is 
coming back at a faster rate and to a greater degree in terms of the 
damage that was predicted than any of these people had predicted.
  The fact is, there is a recent study about the melting of the 
permafrost lid of the planet. It shows in the Arctic--this is the 
Siberian Shelf Study, which I would ask my colleague from Oklahoma to 
read--columns of methane rising up out of the sea level, and if you 
light a match where those columns break out into the open air, it will 
ignite. Those columns of methane represent a gas that is 20 times more 
damaging and dangerous than carbon dioxide, and it is now--as the 
permafrost melts--uncontrollably being released into the atmosphere.
  In addition to that, there is an ice shelf, the Wilkins Ice Shelf, 
down in Antarctica. A 25-mile ice bridge connected the Wilkins Ice 
Shelf to the mainland of Antarctica. That shattered. It just broke 
apart months ago. Now we have an ice shelf that for centuries--
thousands of years--was connected to the continent that is no longer 
connected.
  We have sea ice which is melting at a rate where the Arctic Ocean is 
increasingly exposed. In 5 years, scientists predict we will have the 
first ice-free Arctic summer. That exposes more ocean to sunlight. The 
ocean is dark. It consumes more of the heat from the sunlight, which 
then accelerates the rate of the melting and warming, rather than the 
ice sheet and the snow that used to reflect it back into the 
atmosphere.
  There are countless examples of evidence of what global climate 
change is already doing across the planet. In Newtok, AK, they just 
voted to move their village 9 miles inland because of what is happening 
with the sea ice melt and the melting of the permafrost. We will spend 
millions of dollars mitigating and adapting to these changes as they 
come at us.
  The Audubon Society has reported a 100-mile wide swath of land in the 
United States where their gardeners--who do not record themselves as 
Democrats or Republicans, ideologues, conservatives, or liberals; they 
are people who like to go out and garden; they are part of the Audubon 
Society as a result of that--are reporting plants they can no longer 
plant that used to be able to be planted.
  We have millions of acres of forests in Alaska and in Canada that 
have been lost: spruce and pine to the spruce beetle that used to die, 
but because it is warmer, now it no longer dies. You can run down a 
long list.
  Mr. President, I am not going to go through all of it here now, but 
suffice it to say, he is wrong about China. I just came back from a 
week in China where I met with their leaders. I went out to see what 
they are doing in wind power. I went to see their energy conservation 
efforts. They are ahead of us in some respects with respect to those 
efforts. They have a higher standard of automobile emissions reduction 
that they are putting in place sooner than we are. They are tripling 
their level of wind power that they are trying to target. They have a 
20-percent energy intensity reduction level that they are now exceeding 
in several sectors of

[[Page 16218]]

their economy, which they did not think they would be able to do. In 2 
or 3 years, we are going to be chasing China if we do not recognize 
what has happened and do this.
  So the Senator from California, the chairperson of the Environment 
and Public Works Committee, completely understands, as do many others, 
this can be done without great cost to our electric production 
facilities, without our companies losing business and losing jobs. On 
the contrary, the jobs of the future are going to be in alternative and 
renewable energy and in the energy future of this country.
  There is barely a person I know who does not think we would not be 
better off in America not sending $700 billion a year to the Middle 
East to pay for oil so we can blow it up in the sky and pollute and 
turn around and try to figure out how we are going to spend billions to 
undo it. Why not spend those $700 billion in the United States creating 
that energy in the first place, with jobs that do not get sent abroad, 
and which pay people good value for the job they are doing? It 
liberates America for our energy security. It provides a better 
environment. We are a healthier nation, and we increase our economy. So 
you get all those pluses. What are they offering? What is the 
alternative that Senator Inhofe and others are offering? If they are 
wrong in their predictions, we have catastrophe for the planet.
  So I think we are on the right track. China is going to reduce 
emissions. China will be on a different schedule because that is what 
the international agreements set up years ago. But as a developing 
country with 800 million people living on less than $2 a day, it is 
understandable that they would fight to say: We can't quite meet the 
same schedule now, but we will get to the same schedule. What is 
important is that, globally, all countries come together to reduce 
emissions. That will happen in Copenhagen. It is much more likely to 
happen in Copenhagen if the United States of America leads here at 
home. If we undertake these efforts and pass legislation here, I 
guarantee my colleagues that Copenhagen will be a success and China and 
other countries will all agree to reductions that are measurable, that 
are verifiable, and that are reportable.
  So we need to get our facts straight as we come at this debate. The 
Senator from California and I are thirsty and waiting for this debate 
because we will show how we can reduce emissions, how we can transition 
our economy with minimal--minimal--costs. In fact, for the first few 
years, it pays for itself to undertake many of these transformations.
  I wish to reemphasize some thoughts in the time I have left about 
Dean Koh. Dean Koh has been chosen to be legal counsel for the State 
Department. I have already spoken about his remarkable academic career, 
his leadership in the legal profession, the respect and glowing praise 
he has received from colleagues within the legal profession. We have 
heard a lot about him. I wish to address some of the points that have 
been raised in opposition to his nomination, some of which I believe 
are just plain disrespectful and indecent. It is hard to find the 
rationale for where they come from, frankly--maybe a mean-spiritedness 
or something--but it is hard, and I am grateful, as I think we all 
ought to be, that nominees are willing to subject themselves to some of 
these kinds of arguments. Also, there are some misunderstandings and 
mischaracterizations.
  It is no surprise that not everybody is going to agree with him and 
every decision or opinion he has made, but the fact is that a lot of 
the arguments that have been made aren't grounded in reality. First, 
there have been allegations that his views on foreign law would somehow 
undermine the Constitution of the United States. Well, please, that is 
baseless beyond any kind of evidence I have ever seen or any statement 
he has ever made. Let me repeat what Dean Koh, himself, has said about 
the primacy of our Constitution. I quote:

       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 
     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.

  That is definitive. No one should insert any other interpretation 
into it other than the Constitution is primary.
  Some have also argued that Dean Koh's views on international law, 
particularly on something called ``the transnational legal process,'' 
would somehow undermine our sovereignty and our security. Again, this 
represents a fundamental misunderstanding of his views. Dean Koh 
understands that international law and institutions are simply part of 
life in a globalized world. Engagement with the international community 
is inevitable. He believes it is best to engage constructively. Here is 
what he said at his confirmation hearing:

       Transnational legal process . . . says what we all know--
     that we live in an interdependent world that is growing 
     increasingly more interdependent. It is not new, and . . . 
     [i]t is not an ideology. It is a description of a world in 
     which we live . . . 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.

  Those aren't the words of an ideologue. They aren't the words of a 
radical. It is the broad perspective of a deeply knowledgeable and 
pragmatic and committed advocate for our Nation's interests. It 
reflects how we represent our interests. It reflects our real 
challenge, which is how we best use international law and institutions 
to advance national security interests and promote our core values. 
That is exactly what Dean Koh has spent his career working on. As one 
of the world's leading experts on international law, there is nobody 
better qualified to meet this challenge.
  Yesterday, my colleague from Texas suggested that Dean Koh somehow 
created a moral equivalence between the United States and Iran's brutal 
and deadly crackdown after the recent election. This is what our 
colleague said:

       Koh appears to draw moral equivalence between the Iranian 
     regime's political suppression and human rights abuses that 
     we've been watching play out on television and America's 
     counterterrorism policies on the other hand. In 2007, he 
     wrote: The United States cannot stand on strong footing 
     attacking Iran for illegal detentions when similar charges 
     can and have been lodged against our own government.

  Well, common sense--in one sentence, the Senator accuses Dean Koh of 
equating our treatment of detainees with Iran's actions and violently 
suppressing protests this week--right now--and in the next sentence he 
cites as evidence for that comments that Dean Koh made a couple years 
ago on an unrelated issue of Iran's treatment of detainees. I have 
heard of people trying to make ``six degrees of separation'' 
connections and somehow make it mean something, but this is to the 
extreme.
  The broader point is, Dean Koh was not suggesting there is a moral 
equivalence between Iran and the United States. He was arguing that we 
are safer if we can convince countries such as Iran and North Korea to 
respect global norms and standards. It is harder for the United States 
to run around the world enlisting allies and marshaling pressure when 
we are simultaneously forced to fend off accusations of lawless 
activity by ourselves. So Guantanamos and other things work to deplete 
our ability to be able to maintain the highest moral ground. That is 
not moral equivalence. That is a practical reality about how the world 
works and how you protect the interests of the United States.
  We have heard the argument that Dean Koh's position in supporting the 
regulation of global arms trade is somehow going to infringe on the 
rights of Americans under the second amendment. Please. I mean, please. 
Nothing could be further from the truth. The fact is that Dean Koh 
supports efforts to regulate the transfer of

[[Page 16219]]

guns across borders, which does nothing to interfere with the domestic 
possession of firearms. As he said at his confirmation hearing:

       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 
     the legitimate hunter's right to use a hunting rifle in a 
     national or State park.

  Dean Koh went on to unequivocally state that he respects the Supreme 
Court's decision in Heller, which affirmed the right to bear arms under 
the second amendment as the law of the land.
  There are other criticisms that have been made. I don't have time to 
go into all of them now, but the bottom line is whether it is the 
CEDAW--the Convention on the Elimination of Discrimination Against 
Women--or questions about his beliefs about the war in Iraq, the fact 
is that Dean Koh has also been questioned for allegedly supporting 
suits against the Bush administration's involvement in abusive 
interrogation techniques. Well, first of all, Dean Koh had no personal 
involvement in the lawsuit against John Yoo that has been mentioned, 
none whatsoever. Let's be clear. The State Department Legal Adviser is 
not charged with defending U.S. officials from legal suit or 
investigation of allegations of war crimes. That is the job of the 
Justice Department and the Defense Department.
  Finally, we have heard questions about Dean Koh's respect for the 
role that Congress has played in crafting legislation relating to our 
national security. Dean Koh said at his confirmation hearing, and his 
words should stand:

       [T]he 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.

  That is just the type of approach that we here in Congress should 
welcome.
  While disagreements on legal and policy issues are entirely 
legitimate, I regret that there have been some accusations and 
insinuations against Dean Koh in the media that would be laughable if 
they weren't impugning the reputation of such a devoted public servant. 
Some have alleged that Dean Koh supports the imposition of Islamic 
Shariah law here in America. Others have actually claimed that he is 
against Mother's Day. Does anyone really think this President and this 
Secretary of State would seek legal advice from a man trying to impose 
Islamic law on America? Or abolish Mother's Day? That type of 
allegation has no place in this debate.
  Fortunately, there is a chorus of voices across party lines and 
across American life that know the truth about Dean's Koh's record. 
That's why he has the support of such a long and impressive list of law 
professors, deans, clergy, former State Department Legal Advisers, and 
legal organizations.
  I was heartened to see that eight Republicans voted for cloture. This 
sends an important message that his nomination has real bipartisan 
support. The words of Senator Lugar on Dean Koh bear repeating: ``Given 
Dean Koh's record of service and accomplishment, his personal 
character, his understanding of his role as Legal Adviser, and his 
commitment to work closely with Congress, I support his nomination and 
believe he is well deserving of confirmation by the Senate.''
  Senator Lieberman, one of this body's strongest supporters of the war 
in Iraq and of Professor Koh's nomination, also put it well: ``[T]here 
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.''
  In closing, I believe Dean Koh's own words best sum up the case for 
his confirmation: As he has written, ``I love this country with all my 
heart, not just because of what it has given me and my family, but 
because of what it stands for in the world: democracy, human rights, 
fair play, the rule of law.''
  There is no stronger bipartisan voice for foreign policy or for the 
Constitution in the Senate than Senator Dick Lugar of Indiana, and I 
hope my colleagues will follow his example.
  I thank our Chair.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I rise to speak, once again, on the 
nomination of Harold Koh, whom the President has nominated to be Legal 
Adviser for the State Department. To put this in context, as the 
Senator from Massachusetts has addressed, the Legal Adviser is a very 
important job at the State Department. He is responsible for providing 
guidance on important legal questions, including treaty interpretation 
and other international obligations of the United States. He gives the 
Secretary of State legal advice during negotiations with other nations. 
So the Legal Adviser can be a very influential voice in diplomatic 
circles, especially if he or she has particularly strong views on 
America's obligations to other nations and multilateral organizations.
  Based on my review of Dean Koh's record, I don't believe he is the 
right man for this job. His views are in tension with what I believe 
are core Democratic values, in that he would subjugate America's 
sovereignty to the opinions of the so-called international common law, 
including treaty obligations that the Senate has never ratified. 
Indeed, they are not obligations, but he nevertheless would impose them 
on the United States. When the Senator from Massachusetts says he 
believes the U.S. Constitution is primary, I would have felt much 
better if he had said it was the exclusive source of American law, 
together with the laws that we ourselves pass as representatives of the 
people; not just a consideration but the consideration when it comes to 
determining the obligations and rights of America's citizens, rather 
than subjecting those to international opinion and vague international 
norms which I heard the Senator refer to.
  It is true Professor Koh is an advocate of what he calls 
transnational jurisprudence. He believes Federal judges--these are U.S. 
judges--should use their power to ``vertically enforce'' or 
``domesticate'' American law with international norms and foreign law. 
As I mentioned, this means judges using treaties and ``customary 
international law'' to override a wide variety of American laws, 
whether they be State or Federal. Of course, we understand treaties 
that have been ratified by the Senate are the law of the land, but 
Professor Koh believes that even treaties that the United States has 
not ratified can be evidence of customary international law and given 
legal effect as such.
  The Legal Adviser to the State Department has an important role, as I 
mentioned, in drafting, negotiating, and enforcing treaties. That is 
why it is so crucial he understands that no treaty has the force of law 
in the United States until it has been ratified, pursuant to the 
Constitution, by the Senate. Do we want a top legal advisor at the 
State Department who believes that norms that he and other 
international scholars make should become the law, even if they are 
rejected or not otherwise embraced by the Congress? That can't be 
within the mainstream. That is outside the mainstream; indeed, I 
believe a radical view of our obligations in the international 
community.
  In 2002, Professor Koh delivered a lecture on the matter of gun 
control. He argued for a ``global gun control regime.''
  I don't know exactly what he means by that, but if he means that the 
second amendment rights under the U.S. Constitution of an individual 
American citizen to keep and bear arms are somehow affected by global 
gun control regimes, then I disagree with him very strongly. Our rights 
as Americans depend on the American Constitution and American law, not 
on some global gun control regime or unratified treaties because of 
some legal theory of customary international law.
  On the matter of habeas corpus rights for terrorists, in 2007, 
Professor

[[Page 16220]]

Koh argued that foreign detainees held by the U.S. Armed Forces 
anywhere in the world--not just enemy combatants at Guantanamo Bay--are 
entitled to habeas corpus review in U.S. Federal courts. Those are the 
rights reserved to American citizens under our Constitution and laws, 
not to foreign terrorists detained by our military in farflung 
battlefields around the world.
  If Professor Koh were correct--and he is not--this would mean that 
even foreign enemy combatants captured on the battlefield fighting 
against our troops in Afghanistan and held at Bagram Air Force Base 
would be able to sue in the U.S. courts seeking their release.
  On this issue, fortunately, Dean Koh's radical views are not shared 
by the Obama administration, which filed a brief recently arguing that 
habeas corpus relief doesn't extend to detainees held at Bagram Air 
Force base in Afghanistan.
  Do we want a top legal adviser in the State Department working to 
grant terrorists and enemy combatants even more rights than they have 
now?
  There is the issue of military commissions, something Congress has 
spoken on at some length after lengthy debate. Professor Koh's views of 
military commissions also deserve our attention.
  Military commissions, it turns out, have been authorized since the 
beginning of this country--by George Washington during the 
Revolutionary War, by Abraham Lincoln during the Civil War, and by 
Franklin Roosevelt during World War II. Yes, military commissions have 
been authorized both by our 43rd and 44th President of the United 
States in the context of the war on terror.
  President Obama has said that ``military commissions . . . are an 
appropriate venue for trying detainees for violations of the laws of 
war.'' I agree with him.
  Of course, military commissions, as I alluded to a moment ago, have 
had bipartisan support and have been authorized by the Congress. But 
somehow Professor Koh takes a more radical view. He believes military 
commissions would ``create the impression of kangaroo courts.'' He said 
they ``provide ad hoc justice.'' He said they do not and cannot provide 
``credible justice.''
  Do we want the top legal adviser at the State Department undermining 
both the will of Congress and the President regarding the time-tested 
practice of military commissions during wartime?
  Again, here is another example of Professor Koh's views that are 
radical views--certainly outside of the legal mainstream. Senators 
should also take a look at Professor Koh's views on suing or 
prosecuting lawyers for providing professional legal advice in the 
service of their country.
  My position is clear: Government lawyers--and I don't care whether 
they are working in a Democratic administration or a Republican one--
should not be prosecuted or sued for doing their jobs in good faith. 
They should not be punished for giving their best legal advice under 
difficult and novel situations, even if it turns out that some lawyer 
somewhere later disagrees with that advice.
  As dean of the Yale Law School, Professor Koh has enabled and 
empowered the leftwing attempt to sue one of its own alumni, John Yoo, 
who worked at the Office of Legal Counsel in the Bush administration.
  The Yale Law School's Lowenstein International Human Rights Law 
Clinic has filed suit against John Yoo for the legal advice he provided 
to policymakers during his service on behalf of the American people.
  I wonder if Professor Koh is willing to hold himself to the same 
standard and agree that individuals can sue him for his official acts 
if he is confirmed as Legal Adviser to the State Department--if later 
on lawyers, and perhaps prosecutors, disagree with that legal advice 
and say it was wrong.
  Suppose Professor Koh gives legal advice that certain GTMO detainees 
should be released. If they return to the battlefield, as many have, 
and end up killing Americans, or our allies, should the victims' 
families be allowed to hold Professor Koh legally responsible in a 
court of law? Or suppose Professor Koh gives legal advice that 
authorizes military actions in Afghanistan or Pakistan. If those 
operations result in collateral damage, or civilian casualties, would 
the victims have standing in Federal Court to sue Professor Koh?
  Do we want a top Legal Adviser at the State Department who is so 
compromised by the fear of being sued or prosecuted that he could not 
be trusted to give honest, good-faith legal advice to the Secretary of 
State or the President of the United States?
  Perhaps most timely, given the civil unrest in Iran--and the Senator 
from Massachusetts was critical of the fact that I quoted a 2007 
writing of Professor Koh, but it is true from this writing, and I will 
read it in a moment--Professor Koh appears to draw a moral equivalence 
between Iran's regime's political suppression and human rights abuses, 
on one hand, and America's counterterrorism policies on the other.
  In 2007 he wrote:

       The United States cannot stand on strong footing attacking 
     Iran for ``illegal detention'' when similar charges can be 
     and have been lodged against our own government.

  He goes on to say that U.S. Government criticism of Iranian 
``security forces who monitored the social activities of citizens, 
entered homes and offices, monitored telephone conversations, and 
opened mail without court authorization,'' was ``hard to square'' with 
our own National Security Agency's surveillance programs.
  Do we want to confirm a top Legal Adviser at the State Department who 
can't see the difference between counterterrorism policies approved by 
the Federal courts and the Congress and the brutal repression practiced 
by a theocratic regime?
  We have heard enough moral equivalence about Iran over the last week, 
and we have heard enough apologies for the actions of the United 
States, and enough soft-peddling of the actions of the Iranian 
theocracy, which is a brutal police state. 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 oppose the nomination of 
Harold Koh as the top Legal Adviser to the State Department.
  I yield the floor and reserve the remainder of my time.
  Mr. WARNER. Mr. President, I rise today in support of the nomination 
of Dean Harold Hongju Koh to serve as Legal Adviser to the Department 
of State. Dean Koh is a close friend of mine, whom I have known and 
respected for many years. His distinguished career reflects a long 
history of public service and bipartisanship. For example, Dean Koh 
served in both Republican and Democratic administrations, beginning his 
career in government in the Office of Legal Counsel during the Reagan 
administration and at the Department of Justice and as Assistant 
Secretary of State for Democracy, Human Rights, and Labor in the 
Clinton administration.
  Dean Koh also has strong academic and professional credentials. He 
was the editor of the Harvard Law Review, a Marshall scholar and a law 
clerk for the Honorable Harry A. Blackmun of the U.S. Supreme Court. He 
has been awarded with several honorary degrees and more than 30 human 
rights awards.
  Dean Koh's established expertise in international law makes him a 
strong candidate for the position. I am certain that he will protect 
the U.S. Constitution and execute the job with extraordinary 
professionalism. I strongly support his nomination.
  Mr. DODD. Mr. President, I rise in support of the nomination of 
Harold Koh to serve as Legal Adviser to the Department of State.
  My one and only regret in offering my enthusiastic support for this 
nomination is that it will take from my State of Connecticut a pillar 
of our academic community and a mentor to countless young legal minds 
at the Yale Law School, where Harold Koh has served as a member of the 
faculty since 1985 and dean since 2004.
  Dean Koh is a man of extraordinary intellect, unquestioned 
patriotism, and

[[Page 16221]]

great accomplishment. He is a former Marshall Scholar, a graduate of 
Harvard Law School, the recipient of 11 honorary degrees, and the 
author of 8 books.
  He has appeared before appellate courts and the Congress on countless 
occasions, won many awards and accolades as a human rights advocate, 
and served his country under Presidents of both parties. In his most 
recent service, he was unanimously approved by this body to serve as 
Assistant Secretary of State for Democracy, Human Rights, and Labor, 
where he served with tremendous distinction for 3 years.
  In short, Dean Koh is exactly the sort of public servant we need at 
the State Department at a time when our Nation is seeking to restore 
its standing in the world by renewing our commitment to traditional 
American values like respect for all people and adherence to the rule 
of law.
  After all, we confront global challenges as complex as they are 
numerous. Nuclear proliferation and international terrorism threaten 
our national security, and issues like genocide and human trafficking 
test our leadership on the world stage. Our foreign policy must be 
rooted in an understanding of American and international law, as well 
as a firm commitment to not only our Constitution, but also the 
underlying moral values from which it was created.
  No one understands these issues better than Harold Koh. He is the 
child of parents born in South Korea who grew up under Japanese 
colonial rule. They lived through dictatorship and unrest before coming 
to America. Their son Harold chose to study law because he understood 
that, as he once stated in an essay, ``freedom is contagious.''
  Dean Koh wrote movingly of his time with the State Department:

       Everywhere I went--Haiti, Indonesia, China, Sierra Leone, 
     Kosovo--I saw in the eyes of thousands the same fire for 
     freedom I had first seen in my father's eyes. Once, an Asian 
     dictator told us to stop imposing our Western values on his 
     people. He said, ``We Asians don't feel the same way as 
     Americans do about human rights'' I pointed to my own face 
     and told him he was wrong.

  Our Nation will be safer and stronger, and the world will be freer, 
with Harold Koh at the State Department once again.
  I suspect that many of my colleagues who have raised concerns about 
this nomination understand fully just how qualified Dean Koh is for 
this position. Unfortunately, some are too willing to play politics 
with our foreign policy.
  Let's be clear. To suggest that Dean Koh does not understand or 
appreciate American sovereignty or the supremacy of our Constitution is 
an insult. Dean Koh has done important and valuable work exploring the 
tenets of international law and comparisons between the legal systems 
of different countries, work I hope he will continue when his 
nomination is approved. He does not wish to subjugate our legal system 
to that of any other nation, or to international law, and claims to the 
contrary are simply inaccurate and unfair.
  Indeed, while some have been tempted by the prospect of opposing a 
talented legal scholar nominated by a President of the opposing party, 
Dean Koh's nomination has been endorsed by serious legal minds on both 
sides of the ideological spectrum.
  John Bellinger, who served in this position under President George W. 
Bush, wrote: ``I do think Harold Koh is well qualified and should be 
confirmed.''
  Kenneth Starr, the well-known Republican attorney who has opposed 
Dean Koh in court on many occasions, calls him ``not only a great 
lawyer, but a truly great man of irreproachable integrity.''
  Conservative legal legend Ted Olson agrees, calling Dean Koh a 
``brilliant scholar and a man of great integrity.'' He also makes the 
very salient point that ``the President and the Secretary of State are 
entitled to have who they want as their legal adviser.''
  Serious people, people who understand the importance of this position 
to our foreign policy and the nature of the man President Obama has 
nominated to fill it, have been able to look past political 
considerations and judge Dean Koh fairly.
  They support him. I support him. I urge my colleagues to support him. 
And I look forward to his confirmation, his service, and his continued 
friendship.
  Mr. CORNYN. We yield back the remainder of our time.
  I ask for the yeas and nays.
  The PRESIDING OFFICER (Mrs. Shaheen). Is there a sufficient second?
  There is a sufficient second.
  The question is, shall the Senate advise and consent to the 
nomination of Harold Koh, of Connecticut, to be Legal Adviser of the 
Department of State.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Massachusetts (Mr. Kennedy) are necessarily 
absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 62, nays 35, as follows:

                      [Rollcall Vote No. 213 Ex.]

                                YEAS--62

     Akaka
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Hagan
     Harkin
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--35

     Alexander
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--2

     Byrd
     Kennedy
       
  The nomination was confirmed.
  Mr. KERRY. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. KYL. Madam President, today the Senate confirmed Harold Koh to 
the position of Legal Adviser to the State Department by a vote of 62 
to 35. I voted against his confirmation for reasons I explained on the 
floor yesterday. Chiefly, I am concerned about his support for a 
transnational legal process. The National Review recently published an 
article that explores the inherent conflict between transnational legal 
structures built on ``global norms'' and the constitutionally defined 
role of the American judiciary. I ask unanimous consent that it be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Koh Fails the Democracy Test

                            (By John Fonte)

       Advocates of global governance advance their agenda through 
     the ``transnational legal process.'' Harold Koh, former dean 
     of the Yale Law School, who has been nominated by President 
     Obama to be the legal adviser to the State Department, is a 
     leading advocate of this ``transnational legal process.'' His 
     confirmation hearing is today, Tuesday, April 28.
       Dean Koh has written extensively--sometimes clearly, 
     sometimes obtusely--on transnational law and the 
     ``transnational legal process.'' In a rather clear paragraph 
     in The American Prospect (September 20, 2004), Koh explains 
     how the system works: Transnational legal process encompasses 
     the interactions of public and private actors--nation states, 
     corporations, international organizations, and non-
     governmental organizations--in a variety of forums, to make, 
     interpret, enforce, and ultimately internalize rules of 
     international law. In my view, it is the key to understanding 
     why nations obey international law. Under this view, those 
     seeking to create and embed certain human

[[Page 16222]]

     rights principles into international and domestic law should 
     trigger transnational interactions, which generate legal 
     interpretations, which can in turn be internalized into the 
     domestic law of even resistant nation-states.
       Koh says much the same thing in the Penn State 
     International Law Journal (2006)--more abstractly, to be 
     sure, but it is worth listening to his voice to begin to 
     appreciate the tone of the global-governance debate in legal 
     circles: To understand how transnational law works, one must 
     understand ``Transnational Legal Process,'' the 
     transubstantive process in each of these issues areas 
     [business, crime, immigration, refugees, human rights, 
     environment, trade, terrorism] whereby [nation] states and 
     other transnational private actors use the blend of domestic 
     and international legal process to internalize international 
     legal norms into domestic law. As I have argued elsewhere, 
     key agents in promoting this process of internalization 
     include transnational norm entrepreneurs, governmental norm 
     sponsors, transnational issue networks, and interpretive 
     communities. In this story, one of these agents triggers an 
     interaction at the international level, works together with 
     other agents of internalization to force an interpretation of 
     the international legal norm in an interpretive forum, and 
     then continues to work with those agents to persuade a 
     resisting nation-state to internalize that interpretation 
     into domestic law.
       Koh notes that the crucial mechanism for incorporating 
     these global norms that are ``created'' and ``interpreted'' 
     in transnational forums into American constitutional law is 
     the American judiciary. As Koh declares, ``domestic courts 
     must play a key role in coordinating U.S. domestic 
     constitutional rules with rules of foreign and international 
     law.''
       The global norms that are to be ``internalized'' into 
     American law cover a wide range of policy areas, including 
     matters of foreign policy, terrorism, internal security, 
     commerce, environment, human rights, free speech, and social 
     issues such as feminism, abortion, gay rights, and the status 
     of children.
       To ask the crucial questions of democratic theory: Who 
     governs? Who decides?
       For the advocates of global governance, the policy issues 
     listed above are typically global problems that require 
     global solutions. In this view, international judges, NGO 
     activists, international lawyers, and the like operating in 
     transnational forums such as the International Court of 
     Justice, the International Criminal Court, and various U.N. 
     agencies are the appropriate decision-makers.
       For the advocates of liberal democracy, these issues should 
     be decided through the democratic political process. In the 
     United States, this would mean the elected representatives of 
     the people: the Congress and president at the national level, 
     state legislatures and governors at the state level, and city 
     councils and mayors at the local level.
       To be sure, the American judiciary should perform its 
     constitutional role of interpreting the laws made by the 
     political branches of American democracy. However, it is not 
     appropriate for American courts to impose or ``internalize'' 
     global norms, rules, or laws ``created'' at transnational 
     forums by transnational actors who have no direct 
     accountability to ``We the People of the United States''; 
     actors who not only are not elected by the American people, 
     but who are, for the most part, not even citizens of the 
     United States. It is not appropriate, that is, if one 
     believes in liberal democracy.
       But, of course, the ``transnational legal process'' 
     articulated by Harold Koh and the politics of 
     transnationalism generally are not democratic. They represent 
     a new form of governance that I call ``post-democratic.'' To 
     ``make, interpret, [and] enforce'' international law, ``which 
     can in turn be internalized into the domestic law of even 
     resistant nation-states'' (as Koh describes it), is to 
     exercise governance. But do these transnational governors 
     have the consent of the governed?
       The transnational legal process fails the ``government by 
     the consent of the governed'' test in two ways. First, the 
     democratic branches of government, the elected 
     representatives of the people, have no direct input either in 
     writing the global laws in the first place, or even in 
     consenting to their domestic internalization, as, for 
     example, happens when the Senate ratifies a treaty or the 
     Congress passes enabling legislation for a non-self-executing 
     treaty.
       Second, there is no democratic mechanism to repeal or 
     change these international rules that are incorporated into 
     U.S. law by this process. What if the American people decide 
     that they object to these global norms and transnational laws 
     that were imposed upon them without their consent (on, for 
     example, the death penalty, internal security, immigration, 
     family law, etc.)? What if the American people at first 
     approved, but later changed their minds on, some of these 
     rules: How can these global norms, now part of international 
     law and U.S. constitutional law, be repealed? Legislation to 
     repeal the global norms could be deemed ``unconstitutional.'' 
     In short, there are no democratic answers to these questions 
     consistent with the transnational legal process, because it 
     is not a democratic process.
       At the end of the day, the argument over the transnational 
     legal process is one part of a larger argument that will come 
     to dominate the 21st century: Who governs?
       Will Americans continue to decide for themselves public 
     policies related to national security, human rights, 
     immigration, free speech, terrorism, the environment, trade, 
     commercial regulation, abortion, gay rights, and family 
     issues--or will questions be decided by ``transnational issue 
     networks'' working with ``transnational norm entrepreneurs,'' 
     ``governmental norm sponsors,'' and ``interpretive 
     communities,'' with the complicity of American judges?

  The PRESIDING OFFICER. Under the previous order, the President shall 
be notified of the Senate's action.

                          ____________________