WASHINGTON -- It is said that there are two kinds of lawyers: those who know the law and those who know the judge. And then there is Harold Koh, the man who is likely to be the next legal adviser to the State Department. Koh most recently served as dean of the Yale Law School and before that as assistant secretary of state for democracy, human rights and labor in the Clinton administration. He is a prolific author and a legal activist of the left. Earlier this week, his nomination to be Foggy Bottom's barrister was approved by the Senate Foreign Relations Committee, 12-5. His pending appointment has received scant attention from the media or the senators who will decide his fate. It deserves a closer look.
The position of State Department legal adviser is unique. The person holding it helps formulate and implement U.S. foreign policy, advises the Justice Department on cases with international implications, influences U.S. positions on issues considered by international bodies, represents the U.S. at treaty negotiations and international conferences, and has input into the drafting of Security Council resolutions and the interpretations of treaties.
Koh's record deserves more scrutiny because he is not just an attorney who knows the law; he is an activist lawyer who knows what he wants the law to be. From all he has said and written, it is apparent that Koh wants U.S. jurisprudence to be shaped by international law, European courts, foreign governments, and international organizations, such as the United Nations. Koh puts himself in the "transnationalist" camp of legal practitioners, which he describes as those who "believe in and promote the blending of international and domestic law." He wrote, "Transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system."
Though I never have been a supporter of the death penalty, I also believe that American citizens ought to be the ones who decide whether it is appropriate in this country. It certainly is not a matter to be decided by those in other countries. Koh, however, sides with foreigners. In a 2002 essay arguing against the death penalty, he wrote: "We do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment." According to Koh, the only opinions in "humankind" that matter are those of non-Americans in the enlightened states where the death penalty no longer is considered an appropriate application of justice for those who commit heinous crimes. In the Koh universe, if the Europeans are opposed to it, we should render it unconstitutional.
Oliver North is a nationally syndicated columnist, the host of War Stories on the Fox News Channel, the author of the new novel Heroes Proved and the co-founder of Freedom Alliance, an organization that provides college scholarships to the children of U.S. military personnel killed or permanently disabled in the line of duty. Join Oliver North in Israel by going to www.olivernorthisrael.com.