At State, a Debate Over 'Transnational' Law

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because—taken to their logical extreme—they could erode American democracy and sovereignty.

Koh is "all about depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe's leftist elites," says Edward Whelan, a lawyer and head of the Ethics and Public Policy Center, a conservative Washington policy group. Whelan's tone is alarmist, but he raises legitimate questions. Koh is well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left. At his confirmation hearings, Koh, who is in "no comment" mode until then, will find himself defending some statements that irk centrists and conservatives.

In 2002, Koh asserted that the planned invasion of Iraq—which then-senator, now–Secretary of State Hillary Clinton supported—"would violate international law." That raises the interesting question of whether Koh, as the State Department's lawyer, would try to stop the unilateral use of force by the Obama administration—an armed intervention in, say, Pakistan that lacked U.N. backing. In 2004, Koh asserted that President Bush (by invading Iraq and flouting the Geneva accords) had put the United States into an "axis of disobedience" to international law along with North Korea and Saddam Hussein's Iraq—thereby forfeiting the credibility needed to persuade other nations to obey the law. Adoption of his ideas could expose U.S. companies to multibillion-dollar liabilities merely for doing business in countries run by human-rights violators. Would Koh argue that the United States should submit to the jurisdiction of the International Criminal Court, even if it means extraditing American officials to be tried as war criminals? Would he argue that a global-warming treaty not ratified by the United States was nonetheless legally binding? At his confirmation hearings (probably later this month), Congress will want to know. (A member of the Obama team who has studied Koh's work, but declined to be identified in advance of the hearings, insists that his ideas are more nuanced than isolated quotes might suggest, and that Koh knows how to make tough trade-offs between academic theories and national interest.)

Koh argues that American law should reflect "transnational" legal values—and that in an interconnected world it inevitably does to some extent already. In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations. He has, for instance, pushed for a more expansive view of what constitutes "cruel and unusual punishment" under the Eighth Amendment. Koh's views are in tune with—if bolder than—those of a majority of the Supreme Court on some issues. Indeed, the justices cited foreign and international laws as support for their 2003 decision in Lawrence v. Texas striking down a Texas law against gay sex, and their 2005 decision, Roper v. Simmons, overturning the death penalty for juveniles in murder cases. Justice Ruth Bader Ginsburg recently defended the practice of citing international and foreign judicial precedents in Supreme Court decisions, implying that they never make a difference in the outcome. "Why shouldn't we look at the wisdom of a judge from abroad with at least as much ease as we would read a law-review article written by a professor?" she asked.

But Koh would go much further. To show regard for "the opinions of mankind," he asserted in a 2002 law review article, the death penalty "should, in time, be declared unconstitutional." Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," signed by President Carter in 1980 but never ratified by Congress. A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.

It is perhaps too easy to protest that transnational law enthusiasts such as Koh want to transform the United States into Denmark. He is no Baltasar Garzón, the flamboyant, media-hungry Spanish magistrate who sought the extradition of Chile's Augusto Pinochet on charges that the Latin American strongman had Spaniards tortured and killed—and who is now weighing a possible case against some top Bush administration lawyers who gave advice clearing the way for the alleged torture of terror suspects. Koh believes in the slow and reasoned evolution of the law, not showy prosecutions. His parents came to America to flee an oppressive South Korean regime. His work in the Reagan Justice Department and as an assistant secretary of state in the Clinton administration aroused little controversy. Some prominent conservatives, including Bush's solicitor general, Ted Olson, support his nomination, praising his ability, if not his ideas. Normally, the Senate ratifies a president's subcabinet appointments unless they are off the wall. Koh is not.

Still, conservatives have a point that Koh and the other "transnationalists" are using their legal theories to advance a political agenda. The international legal norms they wish to inject into American law by and large reflect the values of Social Democratic Europe and liberal American academics. Koh is not suggesting, for instance, that American judges adapt Islamic law that discriminates against women. Koh's writings—especially when exaggerated—will add to charges from the right that Obama is a closet socialist. The president may have to answer whether he agrees with Koh's more provocative views.