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A Radical at State By: Kathy Shaidle and John Perazzo
FrontPageMagazine.com | Wednesday, April 08, 2009

If President Obama had hoped to avoid the controversy that has stalked some of his previous appointments, his selection of jurist and self-described “activist” Harold Koh to become the State Department’s top legal advisor must be judged a disappointment.

Until recently, Koh served as the head of Yale Law School. In that prominent and influential position, he offered opinions reflecting his staunch “transnationalist” views – that is, Koh believes that distinctions between U.S. law and international law should be eliminated – inevitably in favor of the latter’s latest anti-American whims. According to his writings, Harold Koh thinks it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” when “American legal rules seem to parallel those of other nations;” when “foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances;” and “when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard.”

Koh’s legal premises are highly controversial. The Center for Security Policy’s Frank Gaffney Jr. observes that, in effect, Koh “favors U.S. submission to the International Criminal Court.” According to Gaffney, Koh “has been an unalloyed enthusiast” for the “lawfare” being practiced abroad by provocateurs like Spanish judge Baltasar Garzon, who wants to prosecute former Bush advisors for allegedly permitting “torture” at Guantanamo Bay prison.

Indeed, Koh himself has promised to dismantle many of the national security policies put in place by the Bush administration as part of the ongoing War on Terror. Lamenting America’s “obsessive focus on the War on Terror,” Koh proposes to replace it with what he calls a “global human rights policy.” According to Koh, this means that “[W]e need to stop pushing for double standards in human rights. If we believe that human rights are universal, we must respect them, even for suspected terrorists.... And as a matter of universal principle, we must give all detainees basic humane treatment, however heinous they may be.”

As these views suggest, Koh views terrorism not as a form of warfare that warrants a military response, but rather as a legal matter to be addressed in a courtroom. He maintains that even if the actual perpetrators of 9/11 were to have been somehow captured alive, insisting that “the United States must try, not lynch, them to promote four legal values higher than vengeance: holding them accountable for their crimes against humanity; telling the world the truth about those crimes; reaffirming that such acts violate all norms of civilized society; and demonstrating that law-abiding societies, unlike terrorists, respect human rights by channeling retribution into criminal punishment for even the most heinous outlaws.”

In keeping with his view that terrorists deserve every legal privilege, Koh argues that they must be tried in civilian courts rather than military tribunals. Tellingly, Koh believes that the great virtue of civilian trials is that they stand a better chance of winning the approval of the international community. “The strongest argument against military commissions is not legal, but political,” he has written. “Military commissions create the impression of kangaroo courts, not legitimate accountability mechanisms.… To truly win a global war against terrorism, the U.S. must not only apply, but also be universally seen to be applying, credible justice. Credible justice for international crimes demands tribunals that are fair and impartial both in fact and in appearance. By their very nature, military tribunals fail this test.”

In Koh’s estimation, the United States recklessly squandered the considerable reserve of goodwill it had received from other nations in the wake of 9/11. “After September 11,” he explains, “we were viewed with universal sympathy as victims of a brutal attack. But we have responded with a series of unnecessary, self-inflicted wounds, which have gravely diminished America's standing as the world's human rights leader.”

According to Koh, America's anti-terror efforts have not only sullied our nation's image abroad, but also have “deeply exacerbated distinctions between citizens and aliens within American society with respect to political, civil, social, and economic rights, and contributed to pronounced scapegoating of Muslim, Middle Eastern, and South Asian aliens.” Specifically, Koh condemns the Patriot Act as legislation which “was created with hardly any deliberation or genuine legislative process,” and which consequently “should really be called the ‘Round-up-the-Usual-Suspects’ Act.”

Moreover, Koh has spoken out against “indiscriminate racial profiling” by security personnel at airports, favoring instead the use of “behavioral profiling” as an alternative:

“If you cross [the border] in England or in Canada,” he explains, “they [security authorities] ask you, ‘Why are you traveling today? Does your story hold together?’ They ask you to produce documents that show that you are who you say you are, and that what you are doing makes sense given your own stated objectives.”

One alleged statement of Koh’s has attracted considerable attention this week, as the New York Post reported on Koh’s supposed support of employing Islamic “sharia” law to decide American cases. A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that “in an appropriate case, he didn't see any reason why Sharia law would not be applied to govern a case in the United States.”

Daniel Pipes, a prominent scholar of Islamic extremism, took particular interest in this reported statement and elaborated on the incident at his website, writing: “The day may have arrived when Americans, like Britons and the Dutch, have to stave off their establishment advocating Shari'a. It's a dark day, indeed. The Senate must reject Harold Koh as State's legal advisor.”

Steven Groves, Bernard and Barbara Lomas Fellow at the Heritage Foundation’s Margaret Thatcher Center for Freedom, told FrontPage that Koh would be a “problem” as the top legal advisor at the State Department, “because of the nature of the job.” “Koh believes in the integration of international legal norms into U.S. domestic law,” says Groves. “He feels it is all right for the Supreme Court to look to the opinions of mankind and foreign courts on reaching their decisions on constitutional issues, rather than just U.S. common law and our legal tradition. Making decisions on delicate social issues and human rights issues is difficult enough without international voices chiming in, and having as much say as U.S. cultural and social norms.”

Groves compared Koh’s situation to that of Charles Freeman, another Obama appointee and one who was forced to withdraw his name from consideration after the media and the public became familiar with his statements about the “Israeli lobby” and the Chinese government’s deadly reaction to the Tiananmen Square protests.

If Koh makes it through the Senate confirmation process and takes his place at the State Department, Groves and others fear that this will simply pave the way for Koh to one day achieve his true ambition: taking his place as a Justice at the U.S. Supreme Court. Thus the growing concern that a seemingly minor political appointment may one day have an outsize influence on American politics.

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