His nomination to this post has stirred quite the tempest in the blogosphere, HERE is just one example [a quite good one, I might add] of someone questioning Koh's suitability as the DOS Legal Adviser.
Koh caught my attention when he became the nominee for this position, and I recalled that I had read some of his articles for a paper I wrote relating to International Law. I was pretty sure I had argued against some of his positions in my paper [I'll have to dig it out and post it HERE], but my objections for the paper pale in comparison to Ed Whelan's (above) and to others (below).
Thanks to my RSS subscription to The Volokh Conspiracy, I learned about THIS post from Julian Ku, a Professor of Law at Hofstra University and former student of Koh.
Ku provides a list of "Ten Questions for Legal Advisor-Nominee Harold Hongju Koh." Here are a few of the questions:
I think Ku asks some valid questions, and that other individuals have legitimate concerns about Koh's role as Legal Adviser.
- One your predecessors, William Taft, argued that the 2003 invasion of Iraq was legal under international law and offered a number of legal opinions to that effect during his tenure. Do you agree with his interpretation of international law governing the use of force in Iraq?
- You have argued in your writings that transnational legal processes can and should be used to develop and eventually “bring international law home” to have binding force within the U.S. legal system. Do you think it is appropriate as Legal Advisor to support such efforts to use litigation to incorporate international legal norms within U.S. law?
- According to newspaper reports, the U.S. government has been engaged in the use of covert military attacks in at least seven different countries, as part of the “global war on terrorism.” These attacks have included missile attacks in Yemen, Syria, and Pakistan. Such attacks, by U.S. Special Forces, were authorized by President Bush. Do you believe these attacks are lawful, under U.S. and international law?
- Recently, universal jurisdiction has been invoked in Spain to potentially prosecute six officials from the Bush administration for giving legal advice that allegedly sanctioned torture. Universal jurisdiction has also been the basis for or potential prosecutions of Israeli officials involved in military operations in the Gaza Strip. Given your past advocacy of transnational legal processes and the invocation of universal jurisdiction in the United States under the Alien Tort Statute, do you believe it is appropriate for Spain to open that investigation into U.S. officials? At what point would it be appropriate for the United States to protest such an investigation?
We'll see how in-depth the Senate questions him, and if any of these questions come up. If your Senator serves on the committee that will question him, you might suggesting that s/he picks one or two to ask...
Some have noted that Koh will only be a legal adviser, and not a policy maker. Oh really? And where was that distinction during the "torture memo" scandal back in 2001/2002? But, I guess you're right: advisers only persuade the policy makers; they don't make any policy themselves... Oh wait, let's see what The New York Times Editorial for March 26, 2009 says. Granted, they're talking about the Office of Legal Counsel (OLC) that advises the President in legal matters; but I think that aptly compares to the Legal Adviser to the DOS, which advises State Department officials in legal matters:
The Office of Legal Counsel is little known to the public, but it plays an important role in guiding national policy. As the legal adviser to the executive branch, it informs the White House and the agencies about what the law requires — and what it prohibits. The office was thrust into the limelight a few years ago when word leaked out of an O.L.C. torture memo that cleared the way for horrific forms of interrogation.
(emphasis added)
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