[Senate Hearing 111-931]
[From the U.S. Government Printing Office]
S. Hrg. 111-931
NOMINATION
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 28, 2009
__________
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COMMITTEE ON FOREIGN RELATIONS
JOHN F. KERRY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut RICHARD G. LUGAR, Indiana
RUSSELL D. FEINGOLD, Wisconsin Republican Leader designee
BARBARA BOXER, California BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey JOHNNY ISAKSON, Georgia
BENJAMIN L. CARDIN, Maryland JAMES E. RISCH, Idaho
ROBERT P. CASEY, Jr., Pennsylvania JIM DeMINT, South Carolina
JIM WEBB, Virginia JOHN BARRASSO, Wyoming
JEANNE SHAHEEN, New Hampshire ROGER F. WICKER, Mississippi
EDWARD E. KAUFMAN, Delaware
KIRSTEN E. GILLIBRAND, New York
David McKean, Staff Director
Kenneth A. Myers, Jr., Republican Staff Director
(ii)
C O N T E N T S
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Page
Kerry, Hon. John F., U.S. Senator from Massachusetts............. 1
Lugar, Hon. Richard G., U.S. Senator from Indiana................ 3
Lieberman, Hon. Joseph I., U.S. Senator from Connecticut......... 5
Prepared statement........................................... 5
Dodd, Hon. Christopher J., U.S. Senator from Connecticut.........
Koh, Hon. Harold H., Nominated to be Legal Advisor to the
Department of State............................................ 9
Prepared statement........................................... 10
Responses of Legal Adviser-Designate Koh to Questions Submitted
for the Record by Members of the Committee..................... 33
(iii)
NOMINATION
----------
TUESDAY, APRIL 28, 2009
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
Harold H. Koh to be Legal Adviser to the Department of State
----------
The committee met, pursuant to notice, at 2:20 p.m., in
room SD-419, Dirksen Senate Office Building, Hon. John F. Kerry
(chairman of the committee) presiding.
Members present: Senators Kerry, Dodd, Feingold, Shaheen,
Gillibrand, Lugar, Corker, Isakson, Barrasso, and Wicker.
Also present: Senator Lieberman.
OPENING STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS
The Chairman. This hearing will come to order.
We are here today to consider the nomination of Dean Harold
Koh to be the legal adviser to the Department of State.
Dean Koh, thank you so much for being willing to take this
on and for joining us here today.
We thank our colleague, Senator Lieberman, for being here
and I will call on momentarily.
I see you also have a number of members of your family
here, and we look forward to your introducing them to the
committee in a few moments when you give your opening remarks.
And again, I apologize. I mentioned to Dean Koh before we
came in here that I have to go down to the White House for a
meeting, and I have asked Senator Lugar to chair during my
absence. And I appreciate his willingness to do that and again
underscore the good bipartisan way in which the committee
works.
Dean Koh is one of the foremost legal scholars in the
country, and he is a person of the highest intellect,
integrity, and character. Frankly, we are very fortunate to
have such an extraordinarily well-qualified candidate for this
critical position.
If confirmed, Dean Koh will be the Secretary of State's
chief legal counsel and the top adviser within the executive
branch on legal matters related to our foreign policy. He will
advise on the legal aspects of the most complex and important
national security matters facing the country, covering issues
from detainee policy to arms control negotiations.
Dean Koh brings a very impressive record of achievement to
this post. He received his law degree from Harvard, where he
was an editor of the Law Review; two master's degrees from
Oxford University, where he was a Marshall Scholar. And as a
young lawyer, he clerked on both the D.C. Circuit Court of
Appeals and the U.S. Supreme Court.
He served with distinction in both Democratic and
Republican administrations, beginning his career in Government
in the Office of Legal Counsel in the Reagan administration.
Dean Koh left government to teach at Yale Law School, where
he went on to serve as dean until his nomination to serve in
the current administration. And as a renowned scholar and
leading expert on international law, he has published or
coauthored 8 books and over 150 articles.
In addition to his impressive academic resume, Dean Koh
comes to this nomination and to the job with a firsthand
understanding of how the State Department works. He served as
Assistant Secretary of State for Democracy, Human Rights, and
Labor in the Clinton administration, a post for which he was
unanimously confirmed by the Senate in 1998.
Throughout his career, Dean Koh has been a fierce defender
of the rule of law and human rights. A letter in support of
Dean Koh from former high-ranking military officers was
eloquent on this point. They wrote, ``Dean Koh understands that
it is not a rule of law if it is invoked only when it is
convenient, and it is not a human right if it applies only to
some people. He knows that our Nation is stronger and safer
when our Government adheres to fundamental American values.''
Dean Koh understands that the United States benefits as
much or more than any country from an international system
governed by the rule of law. He also recognizes the United
States must play its part by respecting its international
obligations.
At the same time, his personal commitment to America's
security and to the defense of our Constitution are
indisputable. It is no surprise that not everyone will agree
with Dean Koh, who often tackles controversial issues. But
accusations that his views on international or foreign law
would undermine the Constitution, which some have suggested,
are simply unjustified.
As Dean Koh explained in response to a question from
Senator Lugar on the use of foreign law in constitutional
interpretation, ``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 my 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 the Constitution directs whether and to what extent
international law should guide courts and policymakers.''
While disagreements on legal theory are perfectly
legitimate, frankly, some of the attacks against Dean Koh on
the Internet and in some media outlets are beyond the pale.
Some have actually alleged that he is against Mothers Day. Now
I am sure that Professor Koh's mother, who is here in the front
row, will be very, very happy to set the record straight on
that. [Laughter.]
Regardless of any policy differences, we should all be able
to agree on Dean Koh's obvious competence to serve in the post
for which the President has chosen him. In fact, we have
received an outpouring of support from this nomination from all
over. We have heard from over 600 law professors, over 100 law
school deans, over 40 members of the clergy, 7 former State
Department legal advisers, the Society of American Law
Teachers, the Lawyers Committee for Human Rights, and many
others.
Perhaps most remarkable has been the enthusiastic support
from those who don't necessarily see eye to eye with Dean Koh
but still felt compelled to speak out publicly on his behalf,
including former Solicitor General Ted Olson and former White
House Chief of Staff Joshua Bolten.
In fact, no less a conservative legal authority than
Kenneth Starr wrote that, ``The President's nomination of
Harold Koh deserves to be honored and respected. For our part,
as Americans who love our country, we should be grateful that
such an extraordinarily talented lawyer and scholar is willing
to leave the deanship at his beloved Yale Law School and take
on this important, but sacrificial form of service to our
Nation.''
I hope we can minimize the sacrificial component of that.
[Laughter.]
So while I understand there will be healthy debate on Dean
Koh's nomination, it is really clear that Dean Koh is widely
respected across the legal and political spectrum. He is
unquestionably qualified for this position, and I urge my
colleagues to support his nomination.
With that, I turn over to Senator Lugar for his opening
statement, and then we will welcome Senator Lieberman. I don't
know if Senator Dodd is coming over or not.
And Dean, I hope you will sort of keep your summary--I
think it would be best just to give Senators an opportunity to
have a question period, and we look forward to hearing from
you, too.
Thank you.
Senator Lugar.
STATEMENT OF HON. RICHARD G. LUGAR,
U.S. SENATOR FROM INDIANA
Senator Lugar. Mr. Chairman, today the committee meets to
consider the nomination of Harold Koh to be legal adviser to
the Department of State.
As you have pointed out, he has had a distinguished career
as a scholar, teacher, and advocate. He is dean of one of the
Nation's leading law schools. He has written widely on issues
of constitutional and international law.
Dean Koh has been a strong advocate on questions of human
rights, including representing Haitian and Cuban asylum seekers
and filing numerous friend of the court briefs in a range of
cases involving human rights issues.
He enjoys support from lawyers he has worked with on these
matters, as well as those including former Solicitor General
Kenneth Starr, whom he has litigated against in these cases. He
has also worked on human rights issues in Government, having
served as Assistant Secretary of State for Democracy, Labor,
and Human Rights from 1998 to 2001.
If confirmed, Dean Koh will be the principal source of
legal advice for the Secretary of State and other State
Department officials. This will involve a different kind of
role from that of a professor or an issue advocate.
A legal adviser's primary role is to provide objective
advice on legal issues, not to advocate for particular policy
outcomes. A legal adviser must be prepared to defend the
policies and interests of the U.S. Government even when they
may be at odds with his personal preferences or positions he
has taken in a private capacity.
In applying laws applicable to the State Department's work,
the legal adviser must take account of and respect prior U.S.
Government interpretations and practices under those laws
rather than considering each such issue as a matter of first
impression. A legal adviser must also be a practical problem
solver, employing legal tools and methods to assist
policymakers in achieving desired policy goals in our national
interest.
These considerations are particularly critical in light of
the range of important issues that will face the next legal
adviser. He will advise on questions of U.S. and international
law applicable to ongoing military operations in Iraq and
Afghanistan and broader U.S. efforts to combat terrorism.
He will provide guidance to U.S. treaty negotiators
involved in efforts to conclude an extension of the START
treaty with Russia and a potential multilateral instrument to
address global climate change. He will also have a lead role in
interpreting and promoting implementation of the broad range of
treaties and international agreements to which the United
States is already a party.
In the course of these responsibilities, the next legal
adviser must work closely with this committee and with other
Members of the Senate. On treaty matters in particular,
effective cooperation between the administration and this
committee is essential to the development, adoption, and
implementation of agreements that will advance United States
interests.
The power to make treaties is shared between the executive
branch and the Senate, and prospects for securing Senate advice
and consent to treaties are greatly enhanced when the executive
branch consults with the Senate early and often in the treaty
process.
The committee also has an important role in overseeing the
executive branch's application of treaties to which the Senate
has already provided advice and consent, including any proposed
changes in the interpretation of such treaties. In all of these
areas, the legal adviser must actively engage with the Senate
and with this committee to ensure a smooth treaty process.
I have had the opportunity to meet with Dean Koh last week
as part of his confirmation process. I have submitted a series
of 40 questions for the record that he has answered in advance
of this hearing and which has been made available to committee
members today.
I appreciate very much his diligence in answering these
extensive questions in a timely manner. His responses to these
questions were posted on my Web site last Friday and have been
made available to all members of the committee. I hope this
material will be helpful to members as they consider Dean Koh's
nomination, and I look forward to our discussion with our
distinguished nominee today.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Lugar.
Senator Lieberman, thanks so much for being here with us. I
know you care passionately about the Yale Law School, among
other things, and so we welcome your comments of introduction.
STATEMENT OF HON. JOSEPH I. LIEBERMAN,
U.S. SENATOR FROM CONNECTICUT
Senator Lieberman. Thanks, Mr. Chairman.
As they said in the Dartmouth College case, it is a small
law school, but there are those of us who love it. Or something
like that. [Laughter.]
Mr. Chairman, Senator Lugar, members of the committee, I am
honored to be before you to introduce Harold Hongju Koh of New
Haven, CT.
Mr. Chairman, Senator Lugar, you have spoken so well and
made many of the points that I wanted to make, I am going to,
with your permission, include my full statement in the record
and just speak to you a bit about Harold Koh.
[The prepared statement of Senator Lieberman follows:]
Prepared Statement of Hon. Joseph I. Lieberman,
U.S. Senator From Connecticut
Mr. Chairman, Senator Lugar, honored members of the Senate Foreign
Relations Committee, thank you very much for the opportunity to join my
senior colleague, Senator Dodd, today, in introducing Dean Harold
Hongju Koh, the President's nominee to be Legal Adviser to the State
Department.
I have known Dean Koh as both a friend and a neighbor around New
Haven for many years. He is a truly extraordinary individual and a
highly qualified choice for this position.
To state the obvious, Dean Koh is a brilliant scholar--one of the
great legal minds of his generation--as well as a wonderful teacher,
who has inspired countless students to pursue a cause greater than
their own self-interest.
He also has a distinguished record of service in our government,
having worked in both Democratic and Republican administrations, and
consistently won the highest regard from people across the political
spectrum for his remarkable intellect and ability. It is a reflection
of the bipartisan respect for Dean Koh that, when President Clinton
nominated him to be Assistant Secretary of State for Democracy, Human
Rights, and Labor 11 years ago, he was unanimously confirmed by a then-
Republican-controlled Senate.
Clearly, Dean Koh will bring extraordinary experience and knowledge
of international law to the Office of State Department Legal Adviser.
But that is not all that he will bring to this position.
Perhaps even more importantly, Dean Koh will bring an extraordinary
devotion and dedication to our country and an appreciation of the
fundamental values for which we stand, drawn from his own personal
experience and the experience of his beloved family.
Dean Koh understands the meaning of freedom and the evil of
dictatorship. This is a lesson that he learned from his parents, who
grew up under Japanese colonial rule in Korea and then fled from the
repressive military government that emerged there to the United States.
It is this experience that helped forge in Dean Koh his lifelong
fidelity to democracy and the rule of law, and that inspired him to
devote his own life to the cause of equality and justice as a lawyer
and a law professor.
In the course of his distinguished career, Dean Koh has authored or
coauthored eight books and more than 150 articles. He has also
occasionally exercised his right of free speech. And to tell the truth,
in the course of my long friendship with Dean Koh, he and I have
occasionally come out on opposite ends of an issue. But this has never
interrupted my respect for him, and his intelligence, his honor, his
experience, and his good judgment, which will serve him well in the
position for which he has been nominated.
And there 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.
Dean Koh is also, as everyone who knows him can attest, a person of
surpassing warmth, civility, and good humor.
I think it is worth noting that no one who has ever had the
pleasure to work with Dean Koh has offered anything other than praise
for him personally and support for his nomination to this position. In
fact, he has won the endorsement of a remarkable bipartisan coalition,
including such Republican luminaries as Ted Olson, Josh Bolten, and Ken
Starr.
These endorsements reflect the fact that, even those who might not
always agree with Dean Koh nonetheless recognize and appreciate the
integrity, honesty, and graciousness that he will bring to this
position.
As the distinguished members of this committee know, we cannot
afford to think about the rule of law as a Republican mission or a
Democratic mission. It is a quintessentially American mission, and for
that reason, I very much hope that you will favorably report on the
nomination of Harold Hongju Koh--a great American--to this important
post.
I thank you, Mr. Chairman.
Senator Lieberman. I have what I take to be the advantage
of having known Harold as a neighbor and a friend in New Haven
for a lot of years before he became the famous person at the
State Department, the dean of Yale Law School, and now the once
more famous and slightly more controversial than I have ever
thought of him nominee to be the legal adviser to the State
Department.
So I want to say, personally knowing Harold and his family
for many years, that this is a person of extraordinary warmth,
civility, honor, graciousness--I mean all of the values that we
seek in friends and neighbors. And I think while we may not
always think of those kinds of personal qualities, to me, they
are quite relevant. And knowing members of this committee, I
would guess, in the end, they are to you as well.
Second, as the record speaks, he is a brilliant legal
scholar, a real authority in the area for which he has been
nominated to serve as legal adviser. He is one of the world's
foremost experts on international law. Harold may actually be
qualified for this position!
Second, on that part, he has a distinguished record of
service already in our Government, having worked in both
Democratic and Republican administrations and consistently won
the highest regard from people who worked with him across the
widest political spectrum.
Both of you touched, I believe, on another personal factor
about Harold Koh. He is from an immigrant family, and he has
the characteristic immigrant family's love for America. He is,
to use a word that we don't use enough anymore, a patriotic
American, both to the country and the values that the country
is based on.
His parents came here, like so many before and since,
seeking freedom, running from the evils of dictatorship. They
lived under Japanese rule in Korea, which was harsh, and then
fled the repressive military Government of Korea for democracy
here in America. And I think his life's work, whether you agree
or disagree with him, on everything he has said about rule of
law springs from that loyalty and belief in the fundamental
values of our country.
Harold has coauthored or authored 8 books and written more
than 150 articles. He has also occasionally exercised his right
of free speech. And there have been occasions when Harold has
said things or written things that I didn't agree with.
I would dare say that--though he is such a gracious man, he
hasn't said this to me too often--there have been occasions
when I have said or done things that he has not agreed with.
But this has never interrupted my respect for him, for his
intelligence, for his honor, for his experience, for his good
judgment, which will serve him well in this position.
I think anybody who has worked with him, no matter whether
they have agreed with him or not, have emerged with those same
good feelings about Harold Koh. And any of you who have the
opportunity to get to know him will do the same as well. A
person of integrity, honesty, and graciousness, couldn't do
better in this particular position.
And I think he will remind us always as we understand that
there is a lot of partisanship in a lot of different areas that
we debate. But there really is no partisanship about the
importance of the rule of law to our country, and that is what
Harold Koh's service and career has been about. And it is that
surpassing priority that he will bring to the position of legal
adviser to the State Department.
So I am proud to recommend that you recommend to the full
Senate that we confirm the nomination of Harold Hongju Koh.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Lieberman. We
really appreciate that.
And Senator Dodd, thanks so much for taking time to be
here. And as a longtime member of this committee, nobody
understands this task better than you do. So we are delighted
to have your words of introduction also.
STATEMENT OF HON. CHRISTOPHER J. DODD,
U.S. SENATOR FROM CONNECTICUT
Senator Dodd. Well, thank you very much, Mr. Chairman.
This will be very much an echo in a sense. Having listened
to my colleague Senator Lieberman speak of Harold Koh, I would
just want to add my words to his.
This is an extraordinary opportunity. I think we ought to
be deeply grateful to the President and to Harold Koh for his
willingness to take this on. Rarely do we have an opportunity
to have someone assume this responsibility with as much talent
and ability and proven experience in this particular area that
Harold Koh brings to this nomination.
As Joe has pointed out, Dean Koh has served in both
Democratic and Republican administrations. At Yale Law School,
Harold Koh invited people to campus who represented a wide
spectrum of views, and this is an indication of the kind of
diversity of thought he welcomes. This is something that is
critical to the role of legal adviser to the State Department--
to be welcoming of the diversity of thought that ought to be
brought to the table as we consider the role of our country in
the ever-growing, more complex global environment that we all
operate in.
Your nomination is an important one, particularly as we
confront the genocide in Darfur or address Iran's nuclear
programs, the violence on our southern border, or the issue we
are all talking about today, the swine flu issue. All of these
issues that the legal adviser's office must be ready for, and
have the ability to bring all of those questions together.
It is a major law office in the State Department. This is
no small department that requires the kind of leadership and
understanding that Harold Koh brings to that job.
As Joe has pointed out so rightfully, Dean Koh has a
remarkable family history. There are obviously millions of
those stories, but I think you must add that story to what this
individual has done with his life and the difference he has
made in the lives of others through his service to our country.
Maybe the word ``patriotic'' gets used too frequently to
describe too many people. It appropriately applies to Harold
Koh. This is truly an American patriot who has taken his life
experience, his family's experience, and then applied those
experiences to the public service of our Nation, leading a
major academic institution on which we depend in no small
measure, and for promoting the diversity of thought that
springs from that institution.
And so, it is a remarkable chance for all of us to have
someone with as much talent as Harold has to serve our country.
Along the way we have gotten to know each other very, very
well. I am not purely objective about this.
I have worked with Harold on human rights issues in
Connecticut. The institute named for my father at the
University of Connecticut, which is dedicated to the human
rights discipline, is one example. Harold has been tremendously
helpful and influential in shaping that. And so, beyond just a
professional awareness of someone, I have gotten to know this
man personally and well on these questions.
About 20 years ago, we worked together on issues in Haiti,
and I have worked closely with Dean Koh on this and other
issues going back many years. So I don't come to this table in
support of this nomination based on geography or the fact that
we live in the same State. I am here because I believe this is
a unique opportunity for us to welcome and to celebrate someone
who is willing to help serve our Nation at a critical moment.
And so, I am delighted to join Joe in this endorsement of a
nomination and would hope the committee in a resounding voice
would support this nomination. It sends a very important signal
at a critical moment that we welcome someone of this ability
and talent.
It doesn't mean, as Joe has said, you are going to agree
with every statement or every word that Harold Koh has written.
That would be silly to suggest so. But to respect that kind of
thought and that willingness to listen to others and to be a
part of shaping that debate is something all of us embrace and
want to see in people who would assume the job of being legal
adviser to the Secretary of State.
And I thank you for listening.
The Chairman. Well, we thank you, Senator Dodd and Senator
Lieberman, for very personal and important statements of
support for the nominee. And I know you are both unbelievably
pressed schedule wise. So we will excuse you at this time.
Senator Dodd. I didn't introduce your family. Joe, I
presume you mentioned the family. Did you?
Mr. Koh. I said a little, but I am going to leave it----
Senator Dodd. You are going to leave that to Joe. I
apologize. Nice to see you again.
The Chairman. Thanks so much for being here.
So, Mr. Koh, if you would, we would love to have you
introduce your family and have a chance to be able to recognize
them here, and then we look forward to your testimony.
Thanks.
Mr. Koh. Thank you, Senator.
My wife, Mary-Christy Fisher, is the deputy director of New
Haven Legal Assistance. Senator Dodd was at her office last
week.
My daughter, Emily Koh. My mother, Dr. Hesung Chun Koh. My
sister, Professor Jean Koh Peters of the Yale Law School. And
my nephew, Daniel Koh.
His father, Howard, my brother, is actually nominated to be
Assistant Secretary of Health and Human Services. So we are
hoping that I will be able to come to his confirmation hearing
in due course.
The Chairman. Wow, that is impressive. [Laughter.]
Well, we look forward to your testimony. Thanks very much.
Welcome, all of you. We are really delighted to have you
here. It is a great story, and we are really pleased that you
could share in this moment.
Go for it.
STATEMENT OF HON. HAROLD H. KOH, NOMINATED TO BE LEGAL ADVISOR
TO THE DEPARTMENT OF STATE
Mr. Koh. Senator, thank you so much for the opportunity to
come before you for this hearing.
Thank you to Senators Dodd and Lieberman. I thank President
Clinton and--President Obama and Secretary Clinton for
entrusting me with this task. And especially my friend of more
than 30 years, Senator Feingold, who has given me such
friendship in this process.
I have introduced my family, and I can only say that you
have recounted my life story. Returning to Government service
would help me to repay a debt for a life of opportunity that
could only have happened in America.
The moment that most brought this home was the summer of
1974 when President Nixon resigned. I was a college student
visiting Seoul. When someone tried to assassinate the President
of South Korea, army tanks rolled into the streets. And I
called my father, and I marveled that South Korea had never
enjoyed a peaceful transition of government, but the world's
most powerful government had just changed hands without anyone
firing a shot.
And my father said, ``Now you see the difference. In a
democracy, if you are President, then the troops obey you. But
in a dictatorship, if the troops obey you, then you are
President.'' And it was the first time that I fully understood
what John Marshall meant in Marbury v. Madison, when he said
that the Government of the United States is a government of
laws and not men.
Promoting a government of laws and serving the Constitution
of the United States has been the subject of my career to this
point, which has included four times taking the oath to serve
the U.S. Government--twice as a law clerk, as an attorney at
the Office of Legal Counsel, and as Assistant Secretary of
State for Democracy, Human Rights, and Labor.
My new assignment, I hope, would continue these lifelong
commitments. If confirmed, I would seek to provide to the
President and to the Secretary the very best legal advice
possible and urge both our country and others to uphold the
rule of law.
My professor, former legal adviser Abe Chayes once said,
``There is nothing wrong with a lawyer holding the United
States to its own best standards and principles.'' And I
believe that as we confront new challenges showing respect for
international law and institutions will make us stronger and
safer.
President Obama pointed this out in his inaugural address.
When Secretary Clinton recently appeared before this committee,
she said that U.S. foreign policy should use what she called
``smart power, the full range of tools at our disposal,'' which
includes commitment to the rule of law.
I have spent my career as a scholar and Government lawyer.
I understand the difference between those roles. For 30 years,
I have worked with talented and dedicated attorneys from the
Legal Advisor's Office, which I consider to be the preeminent
international law firm in the world.
And as I have argued in my scholarship, energy in the
executive must be accompanied by genuine respect for the
constitutional function of advice and consent.
Mr. Chairman, if confirmed, I would be honored once again
to take the oath to support and defend the Constitution of the
United States. I assure you, Senator, those are not just words.
They are my most deeply held convictions. This country gave my
family refuge. It gave me the chance to spend my life promoting
our commitment to law and to human rights.
I have learned several crucial lessons. These are the ones
which have suffused my scholarship. First, that obeying the law
is both right and smart for nations as well as individuals.
Second, respecting constitutional checks and balances in
foreign affairs defends our Constitution and leads to better
foreign policy. Third, making and keeping our international
promises promotes our sovereignty. It does not surrender our
sovereignty. It promotes our sovereignty, and it makes us safer
in a global world.
Thank you. I look forward to answering your questions.
[The prepared statement of Mr. Koh follows:]
Pepared Statement of Harold H. Koh, Nominated to be Legal
Adviser, U.S. Department of State
Mr. Chairman, Ranking Member Lugar, and members of the committee, I
am honored to come before you today as the President's nominee to serve
as Legal Adviser of the United States Department of State. I am deeply
grateful to President Obama and Secretary Clinton for entrusting me
with this challenging assignment. I would also like to thank Senators
Dodd and Lieberman, from my lifelong home of Connecticut, and my friend
of more than 30 years, Senator Russ Feingold of Wisconsin, for their
friendship during this confirmation process.
Mr. Chairman, let me introduce my wife, Mary-Christy Fisher, my
daughter Emily, my mother Dr. Hesung Chun Koh, my sister Professor Jean
Koh Peters of Yale Law School, and my nephew Daniel Koh, who all join
me here today. Only my son William could not be here, as he will soon
enter exam period at his university. My family's love sustains me in
all I do, and strengthens my resolve to do the very best job I can to
serve our country.
Returning to Government service would help me repay a debt for a
life of opportunity that could only have happened in America. Sixty
years ago, my parents, Dr. Kwang Lim Koh and Dr. Hesung Chun Koh, came
to this country as students from South Korea. My father, an
international lawyer, served South Korea's first freely elected
government as its Permanent Representative to the United Nations and
charge d'affaires in Washington. But when a military coup overthrew the
South Korean Government, my father refused to swear loyalty to a regime
that did not respect human rights, democracy, and the rule of law. We
took refuge here, and as we grew, my parents told us daily how lucky we
were to live in America, a nation founded on these values. They urged
me and my siblings--including my older brother Howard, who has just
been nominated to be Assistant Secretary of Health in the Department of
Health and Human Services--to serve our Nation by upholding its
principles.
During the summer that President Nixon resigned, I was a college
student visiting Seoul. After someone tried to assassinate South
Korea's President, army tanks rolled in the streets. I called my father
and marveled that South Korea had never enjoyed a peaceful transition
of government, even while the world's most powerful government had just
changed hands without a shot. My father said, ``Now you see the
difference: In a democracy, if you are President, then the troops obey
you. But in a dictatorship, if the troops obey you, then you are
President.'' It was the first time that I fully grasped what Chief
Justice John Marshall meant, when he said that the Government of the
United States is ``emphatically . . . a government of laws, and not of
men.''
My parents' teaching inspired me toward a career promoting
America's commitment to law and human rights. After law school, I
served as a law clerk for Justice Harry A. Blackmun and Judge Malcolm
Richard Wilkey, and in both Republican and Democratic administrations:
As an attorney at the Office of Legal Counsel in President Reagan's
Department of Justice, and as Assistant Secretary of State for
Democracy, Human Rights, and Labor under President Clinton. When I
became a professor at Yale in 1985, the guiding themes of my teaching
and scholarship became respecting human rights and the rule of law and
preserving checks and balances. Since 1989, these ideas have also
inspired the human rights work that I have pursued with my students.
And during these past 5 years, these themes have been the driving
principles of my time as dean of Yale Law School.
My new assignment would continue these lifelong commitments. If
confirmed, I would seek to provide the President and the Secretary of
State with the very best legal advice possible and urge both our
country and others to uphold the rule of law. As my professor, former
Legal Adviser Abe Chayes once said: There is ``nothing wrong'' with a
lawyer ``holding the United States to its own best standards and best
principles.''
As America confronts a new set of global challenges, showing
respect for international law and institutions will make us stronger
and safer. As President Obama reminded us in his inaugural address,
``earlier generations faced down fascism and communism not just with
missiles and tanks, but with the sturdy alliances and enduring
convictions.'' When Secretary Clinton recently appeared before this
committee, she called on American foreign policy to ``use what has been
called `smart power,' the full range of tools at our disposal.'' To
strengthen America's position of global leadership, commitment to the
rule of law will be an essential element of American ``smart power,''
and energetic diplomacy must go hand in hand with accomplished
lawyering.
Having spent my career as a scholar and a government lawyer, I
fully understand the difference between those two roles. For nearly 30
years, I have worked with the talented and dedicated attorneys from the
Legal Adviser's Office, which I have always considered one of our
Government's very finest law offices, as well as the preeminent
international law firm in the world. And I firmly believe, as I have
argued in my scholarship, that energy in the executive must be
accompanied by genuine respect for the constitutional function of
advice and consent and executive-legislative partnership in foreign
affairs.
Mr. Chairman, if confirmed, I would be honored once again to take
the oath to support and defend the Constitution of the United States.
To me, those are not just words, but deeply held convictions. This
country gave my family refuge, and gave me the chance to devote my life
to promoting America's commitment to law and human rights. From my life
experiences, I have learned several crucial lessons that I would bring
to this task if confirmed: That obeying the law is both right and
smart, for nations as well as individuals; that respecting
constitutional checks and balances in foreign affairs defends our
Constitution and leads to better foreign policy; and that making and
keeping our international promises promotes our sovereignty and makes
us safer.
Thank you. I now look forward to answering any questions that you
may have.
The Chairman. Thank you very much, Dean Koh. Appreciate it.
Let me sort of cut right to it, if I can. Obviously, since
the President nominated you, there has been some discussion of
your views on the interaction of international, foreign,
domestic law. And perhaps that includes the theory of
transnational legal process, and you have described that as a
kind of shorthand description for how state and nonstate actors
in Iraq.
Would you just perhaps share with us, maybe you could
clarify to the committee right up front here your views? Can
you explain how you view the use of international law and
foreign law by U.S. courts? What is the proper weight and
procedure?
Mr. Koh. Senator, transnational legal process, which is an
academic idea, just says what we all know--that we live in an
interdependent world that is growing increasingly more
interdependent. It is now new, and it is not radical. It is not
an ideology. It is a description of a world in which we live,
and we see it every day.
We know that our economies are interdependent. We know that
our communications are interdependent. And we know that our
laws are interdependent. So if President Obama is going to
Europe to manage the G20, economic interdependence. If our
health officials are working on interdependence of our response
to swine flu, it makes sense to have a State Department who has
lawyers working to manage the interdependence between the U.S.
law and laws around the world.
This is not new. 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. You would not, in this day and age, have
a general counsel of Microsoft who did not know anything other
than the law of the State of Washington. And in the same way,
you need a general counsel at the State Department, if
confirmed, who had a similar kind of knowledge.
On the question of foreign law and courts, obviously, I am
not being nominated to be a judge. I am being nominated to be
the legal counsel of the State Department. And so, knowing
foreign law, it seems to me, is absolutely critical. What is
the exposure of U.S. entities in different parts of the world?
What does foreign law require?
At home, it has been said by many justices going back, and
seven justices on our current Supreme Court, that we must look
to foreign law. We are not bound by it. It is not controlling
on us, but it is something we can look to as a source of
instruction. And if we look at law review articles in making
decisions, we can look to precedents from other countries as
well.
The Chairman. So when, if ever, would you counsel that an
international and/or a foreign law should be binding in our
court? Are there circumstances where it would be?
Mr. Koh. They are only binding in our court, international
and foreign law, when judges make them so, the President
suggests that they should be so, or Congress embodies them into
an act of Congress that is signed by the President.
International and foreign law don't become our law unless
they are brought into our law by an act of American legal
institutions. Now that describes what our Constitution creates
as the channels for bringing these bodies of law into our law.
The Chairman. Could that happen outside of a treaty that is
ratified by the U.S. Senate?
Mr. Koh. The treaty is the most obvious way. And as you
know, we have an extensive constitutional process for making
treaties part of our law and then the supreme law of the land
under article 6 of the Constitution.
There is also a body of law known as customary law,
customary international law, which is determined by looking at
the practice of states followed from a sense of legal
obligation. In certain interstitial cases, that can be part of
what Federal courts have called Federal common law, and that
has been held by repeated Supreme Court decision going back to
the 1900s.
The Chairman. Well, perhaps you could share with us sort of
in practical terms how you think the understanding of and
recognition of some of this--of the international rules of the
road would affect, for instance, dealing with the Somali
pirates or swine flu, two current examples?
Mr. Koh. Those are two excellent examples, Senator, of
where international law is not the problem. It is the solution.
And if we don't have international law, we have no solution.
You do not have a national law that can address the problem
of pirates off the coast of Somalia. What we need is an
international regime, which has been created. Such a regime now
involves U.N. Security Council resolutions, a multinational
naval deployment force, a contact group that meets with
Europeans and Africans.
Secretary Clinton announced a four-part strategy for
addressing this, including private-public partnerships. There
have been prosecutions in courts both in Kenya and most
recently an indictment brought in the New York Federal court.
And so, pirates are an issue. It is a global challenge. And to
address it, you need global law.
Swine flu, the same. We have a World Health Assembly. We
have international health regulations. We have an executive
committee, which is considering the question of whether there
is a public health emergency of international concern. And all
of these issues can only be addressed by international
cooperation within a framework of law. Again, international law
is the solution, not the problem.
The Chairman. Some make the argument that that might
challenge, that acceptance of that international law might
undermine our sovereignty or our national security. Could you
address whether there is any way in which you believe that can
occur?
Mr. Koh. If there is a challenge to our sovereignty, it
should be protected by the way in which we engage those
regimes. Obviously, we can't enter treaties that violate the
Constitution. The Constitution is the controlling law.
Obviously, we have to agree only to international commitments
that we can keep and that protect our foreign policy interests.
It is not a one-size-fits-all. It has to be done on a case-
by-case basis. But I think the point that you made, which is so
important, Senator, is our sovereignty in an age of
interdependence doesn't mean staying out of these regimes. It
means engaging with them within a framework of law and making
them serve our national interests.
The Chairman. Thank you very much, Dean Koh. I appreciate
it.
And Senator Lugar, I am going to turn the gavel over to you
and--I think because both of our Senators have another thing
they have to go to after a while.
Thank you very much.
Senator Lugar. We will do our best.
The Chairman. Senator, you are a proven act in this city.
[Laughter.]
Senator Lugar [presiding]. Mr. Chairman, I want to start by
bringing at least to the attention of our nominee what seems to
be the crux of much criticism. This may not be the most
specific or dramatic quote, but Time magazine published an
article by Massimo Calabresi on Friday, April 24 in which he
says, ``The battle began in late March when Fox News
firestarter Glenn Beck said Harold Koh, Obama's nominee to be
the State Department top lawyer, supported Muslim sharia law.
`Sharia law over our Constitution,' Beck said in amazement.
``When that unlikely charge was debunked, Beck switched
tacks and asserted that Koh, the outgoing dean of the Yale Law
School and a former official under President Reagan and
Clinton, wanted to subjugate the U.S. Constitution to foreign
law.
``All of which would be fairly standard ratings-chasing
melodrama except that the prominent members of the GOP, like
Karl Rove and former U.N. Ambassador John Bolton, began signing
onto versions of Beck's critique. At that point, conservative
heavy hitters, including former Solicitor General Theodore
Olson and Clinton tormentor Ken Starr, spoke up in favor of
Koh. The dispute soon spread to the blogosphere, and
Republicans across the country took sides, calling each other
`fruitcakes' and `windbags.'
``With a committee vote on Koh's controversial nomination
coming Tuesday, both camps are lobbying Senators in what has
become a proxy fight for the Republican Party's approach to
life in political exile.''
Now without going into the problems of the Republican Party
any further, there is some substance to this type of atmosphere
that has been created not only in the blogosphere, but in Time
magazine and elsewhere. And as you are aware, Dean Koh, from
our own conversation, while you recognize and are not ultra
sensitive to the fact that you are reading unusual criticisms
of your record and your outlook, particularly along the lines
that Senator Kerry has approached in a much more refined manner
than this particular quote, this is a source of concern for
many Americans.
There are many Americans, as we have treaties coming before
this committee, who are very suspicious of international law,
particularly obligations the United States undertakes with
regard to other nations. And that usually is the substance of
treaties. This is why in my opening statement I suggested,
respectfully, that as the President approaches treaties, your
consultation with our committee will be of the essence early on
and frequently.
We have had such consultation in the past when there have
been very substantial treaties. For example, following the
problems of our country with the former Soviet Union, President
Reagan appointed an arms control observer group of the
leadership of the Senate in both Republican and Democratic
parties headed by Robert Byrd and Robert Dole, who went with
many of us to Geneva, Switzerland, in 1986.
The treaty didn't happen right away. But President Reagan
surmised quickly that we had not been through a treaty with the
Soviet Union before. And as a matter of fact, when one finally
came to the fore about 3 years later, a two-thirds majority was
obtained with majorities in both parties who had had sort of a
3-year study period of what this meant in terms of
international law.
How do you enforce all of this? What does it mean to
Soviets as opposed then to Russians who came along after the
Soviets? And these are always problems. We have gone through
this with regard to the treaty on nuclear material with India
in the past year, a very complex situation for many of us who
are in the nonproliferation camp to say why is India gaining
leave from certain obligations other countries have had to
meet?
And nevertheless, President Bush felt that that
relationship was tremendously important politically and
strategically. India is a very large country. And whether it
signed onto the nonproliferation treaty or some of those
aspects or not, he felt was less essential. Whereas, many who
are more legalistic about it felt this is very essential, sort
of first things first.
I mention these pragmatic situations because this is not
the only advice that you will be asked for from colleagues in
the State Department, but it really gets to the heart of the
matter in terms of essential relations of our country in terms
of our strategic security. And so, I mention all of these
things because you have been involved in discussions of these
in previous roles in the State Department and, I suspect,
informally even as dean of the Yale Law School now.
But would you speak again to the problems as you see
pragmatically regarding international law, the kind of advice
you must give, in this case as a political appointee, as one
who is going to be dealing with Republicans and Democrats, who
is going to need two-thirds majorities for significant changes
in international law which we are debating?
Mr. Koh. Senator, that is a very thoughtful question. Thank
you for reviewing the cultural history of my nomination, which
has been interesting for me to observe myself.
I would say that the key point which you make is that we
cannot engage global challenges without global commitments.
Someone who is in the business world might want to avoid making
contracts because you would be then utterly self-sufficient.
But if you didn't make contracts in which you have traded
something for something else, you couldn't accomplish much in
this world.
And the same goes for making agreements. And you yourself,
Senator, have been a great leader in this area, and in the
nuclear area in particular, these tremendously important
agreements and some more of which are coming before this
committee have posed these issues.
The only solution, which I have written about in my own
academic writing, is a partnership between the Congress and the
President. You use the word ``a power shared'' in your opening
remarks. It was actually the first title of my book, the
National Security Constitution. Then they forced me to change
it away from that to ``A Power Shared,'' which now allows you
to use that title.
But I think that is the basic idea, that our Constitution
requires that the foreign affairs power be a power shared. You
can't get a two-thirds vote for a treaty without a significant
number of members of the opposing party supporting the
activity.
So that requires any--what is required in any good
partnership--consultation, respect, honesty, and close working
together. And then the partnership extends not just between the
executive and the legislative branch, but the partnership
between the United States and our treaty partner to make sure
that we are on the same page.
And the basic theme of all of my writing is that a
partnership between the President and Congress protects our
foreign policy and supports our Constitution and that a
partnership with our allies done well, correctly, within the
law protects our sovereignty and makes us safer.
Senator Lugar. I thank you very much. And I thank you again
for your response to the 40 questions that I submitted to you,
which I felt comprised some of the most controversial questions
that could be asked.
Mr. Koh. They were helpful, Senator. It was like a test----
Senator Lugar. I asked you to put them in writing before we
came to this hearing.
Mr. Koh. I am used to taking exams in May, Senator. So it
came a little earlier this year.
Senator Lugar. Very well.
Senator Dodd.
Senator Dodd. Thank you very much, Senator Lugar.
It is possible that the question I will ask may have been
one that was submitted by Senator Lugar, and I should have
looked at your questions and answers before asking this. So
maybe it has already been addressed, but let me raise the issue
of the International Criminal Court with you, if I can, Dean
Koh.
We currently have, as you know, I think the first case
where a head of state has been indicted by the ICC in the case
of Omar al-Bashir of Sudan. We in this country have taken a
very--at least historically a position of nonparticipation in
the ICC. And certainly while the previous administration had
very strong feelings about the head of state in the Sudan--I
don't want to suggest that they in any way were not deeply
concerned about the atrocities committed under the leadership
of the Sudan--but were very opposed to the idea of United
States participation in the International Criminal Court.
And I wonder if you might share with us your views on
whether or not we should, as a nation, become a more active
member? And if so, what conditions should we, as a nation,
place on our participation in the court in the coming years?
And again, I know, because we have talked about this a
great deal, and I know you know, that in 1945 and 1946, my
father was the associate executive counsel under Robert Jackson
at the Nuremberg trials. And that experience was a life-
altering experience for him and set in many ways the moral tone
for about 60 years or more in terms of our nation being the
only nation to really actively participate or at least actually
support, I should say, that tribunal.
While the Soviets and the British and the French,
obviously, were very engaged, it was the leadership of the
United States, more so than anything else. The greatest
advocate of the trial was Henry Stimson, the only Republican in
Roosevelt's Cabinet, the Secretary of War, I might point out.
It was rather ironic in a way, but nonetheless, he was very,
very supportive of the Nuremberg trials.
So I wonder if you might share with us your views on the
ICC?
Mr. Koh. Thank you, Senator.
As you know from my work at the Dodd Center, the Dodd
Center at the University of Connecticut on Human Rights is in
some sense a tribute to a man, your father, but more
fundamentally, the review of a history of an idea with which
the United States has tried to engage, which is international
justice as a basis for supporting peace and security.
Indeed, President Clinton, Bill Clinton went to the Dodd
Center in 1995 and called for an international criminal court,
if it could be designed in a way that would serve our national
interests.
At the Rome conference in 1998, the United States decided
to not sign the treaty because of concerns about whether
American servicemembers would be subjected to the jurisdiction
of the court unfairly. But by the end of the Clinton
administration, December 2000, the Clinton administration had
worked back to the notion of signing the treaty with
ratification in the future, it was hoped at the time, because,
ultimately, international justice could be used to serve our
interests.
The last 8 years have really led to two policies. An
announced policy of hostility to the court, but then a de facto
policy which, as you have described, could be described as
coexistence with the court. And indeed, the previous legal
adviser to the State Department under President Bush, John
Bellinger, said that the United States has accepted the reality
of the court. And so, we permitted the Darfur referral to go
forward.
Now there are a set of issues facing the new administration
how to reengage with the court at a time in which the
prosecutor, Luis Moreno-Ocampo, has gotten approval to proceed
against the sitting head of state of Sudan, Mr. Bashir. It is a
complicated situation in which international justice, I
believe, could play an important role in bringing a better
outcome in Sudan than we have now.
On the other hand, I don't think that we should reengage
without fully protecting American interests. So in my answer to
Senator Lugar's question on this issue, I identified a series
of issues that would need to be examined. Whether the so-called
unsigning of the treaty in 2002 should be reexamined. How to
make sure we stay within the framework of the American Service
Members Protection Act. Do we engage with the 2010 conference
on the definition of the crime of aggression? Are there ways to
support the prosecutor without running afoul of various
restrictions? All of these need to be addressed.
If I am confirmed, I would be delighted to participate in
these conversations. There are many others in the
administration who have lots of knowledge, particularly those
in the military. I would very much look forward to engaging
with them and hopefully having another chance to come back
before this committee to discuss the next steps and to consult
with all the members of this committee about your particular
concerns.
Senator Dodd. Thank you very much.
Thank you, Mr. Chairman.
Senator Lugar. Thank you very much, Senator Dodd.
Senator Corker.
Senator Corker. Thank you.
Welcome. I have heard from numbers of people that I respect
regarding their respect for you, and I know of your tremendous
accomplishments. As I have mentioned to you in our office, it
is pretty incredible the background that you have and the many
things that you have done.
That, combined with my sort of presense that elections have
consequences and that a President ought to have the ability to
appoint mostly people that they wish, I expected the meeting
that we had in our office to go quite well. And to be candid, I
left there somewhat disappointed, and I think you sensed that
when you were in the office.
And I told you I would not blindside you, but I would like
to--and I am not going to do that. But I would like to just
sort of go back over a few questions. And again, I ask these
questions out of respect for both your life story, which I find
to be pretty incredible, and also the many accomplishments that
you have been able to achieve in your life.
And I will just start with the first question we asked. Do
you believe that the President has the power to invoke
customary international law to preempt State law?
Mr. Koh. I don't know of an occasion in which the President
has done that. But I do think that the President has, on
occasion, invoked customary international law to declare a
uniform rule. For example, the 12-mile limit was declared by
President Reagan offshore.
Now there was no contrary State law there. And so, I don't
know of a case in which the State law was preempted.
Senator Corker. I quoted a press statement that I think all
of us have probably read, and they quoted you--maybe fairly or
unfairly, I don't know--regarding some remarks you made in
Berkeley in 2004, and I will just read this so that I can get
the quote just right.
You said, ``Several nations whose disobedience of
international law has attracted global attention after 9/11,
most prominently North Korea, Iraq, and our own country, the
United States of America. And for shorthand purposes, I will
call these countries the axis of disobedience.''
I am just wondering if you might explain to us exactly what
you were thinking?
Mr. Koh. Well, Senator, I am delighted to, and I am
grateful to you for having this conversation.
As you know from my life story, there is no way that I
would consider the United States and North Korea in some way to
be morally equivalent. I have visited North Korea. I was
appalled by the conditions there. I spoke out about the human
rights abuses, and I consider them to be one of the great
international law violators in the world.
Nevertheless, I believe that if we can bring them into the
community of nations and engage them in international law, we
could be safer. The point I made in the article was a simple
one. It is harder for the United States to encourage countries
that are lawless to obey if it can itself be accused of being
lawless.
They can turn around and charge us with being part of their
same axis of disobedience, and that is not the kind of company
that we want to keep. And I was encouraging us to see ways in
which the United States could be on the right side of the law
so that it could exert the kind of moral leverage on other
nations who are so radically out of compliance with
international law as North Korea.
Senator Corker. And in which areas would you refer to us
being lawless as a country?
Mr. Koh. Well, what I was referring to is ways in which the
United States I said I felt had fallen below international
legal standards, for example, with regard to torture of
detainees, with regard to treatment of detainees on Guantanamo.
Senator Corker. Was torture of detainees in the public
sphere in 2004?
Mr. Koh. It very much was, Senator.
Senator Corker. OK. OK, so in the areas of torture and what
other areas did you deem us to be at that time lawless?
Mr. Koh. A failure to respect the Geneva Conventions, which
I thought was damaging and dangerous to our own troops, who
need the protections of the Geneva Conventions.
Senator Corker. OK. As I was watching the body language
when Senator Kerry was asking you questions, I noticed that in
his first question, which had to do with the rub between
international law and U.S. law, it appeared to me that you were
reading the answer. And I am just wondering if that is an area
that you have tenuously had to walk down because of previous
comments that you have made publicly?
You know, you are the dean of Yale Law School and probably
one of the most knowledgeable people to ever come before this
group as it relates to law. But it did appear to me that you
were reading that answer, and I am just wondering if you might
speak to that?
Because typically when people do that, they are sort of
tight-roping down an issue that they are concerned there may be
some baggage on. Maybe I saw wrong?
Mr. Koh. Senator, I respect you so much I wanted you to
hear it exactly as I could put it most cogently. But I am happy
to reply again now. My view----
Senator Corker. Well, is that an area then that you have
felt some degree of liability as it relates to taking on this
position?
Mr. Koh. Not at all, Senator. I stand by everything I have
written. I have exercised my free speech rights. I am an
academic. The job of an academic is to put ideas into the
marketplace of ideas.
But I have also been a Government official, and when I am a
Government official, I act in a role. I play the role of
counselor to a client. The counselor to the client looks to the
client to give direction and to try to get that person to serve
the law and the best interests of the country.
So that is exactly what I would say the question that
Senator Kerry asked me was about the role of a judge applying
foreign law. I am not nominated to be a judge. What I am being
nominated to be is the general counsel of the State Department.
And in that job, Senator, you have to know foreign law. It
is not controlling, but you need to understand it. It would be
malpractice for me to be general counsel of the State
Department and not have a firm understanding of foreign law and
how it affects American interests.
Senator Corker. Well, just for the record then as we close
out, I have actually sensed among nominees that the area that
we need to be most concerned about are those that are in the
legal areas because, especially in your case, you are giving
advice to someone that would be otherwise a layman in the areas
that you would be advising them. And your point of view is very
important, and the way you direct the law staff.
I was talking to you about a similar type thing in our
office that there is no use getting into today. So I have
actually sensed that, actually, if an administrator can sort of
function OK, that is of lesser concern than some of the
judiciary and some of the areas of legal where you are giving
advice to someone in an area that they really don't know much
about. And certainly, international law is something that most
people are not experts in. You certainly are, and I respect
that.
But I guess I would ask just a final question for the
record, and that is that do you have the ability--because I
know you have shared some personal thoughts that might not
fully line up with everybody here. And certainly, no one could
do that. But can you separate those personal views that you
have from just giving absolutely neutral advice as it relates
to the law to the Secretary of State and those involved?
Mr. Koh. Senator, I have been very inspired by the words of
Herman Phleger, who was the legal adviser for John Foster
Dulles. He said the job of the legal adviser is to speak law to
power.
And I should say that the President of the United States,
President Obama, is an outstanding lawyer. The Secretary of
State Hillary Clinton is an outstanding lawyer. The Deputy
Secretary of State Jim Steinberg is an outstanding lawyer, both
from our law school.
They will challenge the legal views that would be offered
by the person in my position, if confirmed, and the lawyers in
the office, as they should, for the purpose of getting the best
possible legal advice. This is the greatest country in the
world. You need the greatest legal, the best legal advice that
could be given. And if confirmed, I would intend to give that
advice.
Can I separate my role? I have in the past. That is the job
for which I have been nominated, and that is what I would
intend to do.
Senator Corker. Thank you.
Senator Lugar. Thank you very much, Senator Corker.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
I am also, of course, very pleased to be here in support of
my old friend, Harold Koh, nominee to be legal adviser to the
State Department. I have known Dean Koh for more than 30 years,
dating back to our time together at Oxford University.
So, of course, it gives me a great pleasure to see him here
and nominated. But I assure you, Dean Koh is an excellent
choice for this position, regardless of how long I have known
him. Harold is one of the most ethical and hard-working
individuals I have ever met. He also happens to be one of the
brightest legal minds in the country.
Dean Koh has dedicated his life to upholding the rule of
law and strengthening American values because, as he said in
his testimony, he believes that obeying the law is both right
and smart. So I have only the greatest respect for Dean Koh
and, of course, want to reiterate what the chairman said--the
incredible number of letters of support that have poured into
my office over the last few weeks from a wide range of people
that includes Ken Starr and Rabbi David Saperstein, these
letters are a critical testament not only to how qualified Dean
Koh is for this position, but to his ability to work in a
nonpartisan manner in defense of the Constitution and to
promote the rule of law and human rights.
And these are some of the core values on which this country
was founded, and they have been an important source of our
country's power. Our ability to influence other countries to
achieve our international and national security priorities
actually depends on a principled approach to foreign policy,
which includes a commitment to these principles.
And so, as I listen to some of the certainly appropriate
questioning already, I want to just observe--especially with
regard to Senator Corker's question--first of all, listen to
the way Harold Koh responded to the question about customary
law. He gave a crisp answer. He gave a specific example of
where President Reagan actually invoked customary law, and I
want to note for the record there was no rejoinder. There was
no followup question because the answer was typical Harold
Koh--precise, to the point, and effective.
Second, when the issue came up of the question of comments
made with regard to the so-called axis of disobedience, the
notion that somehow Harold Koh would cite these examples as a
way to denigrate the United States is, frankly, absurd. What he
was doing is a great service to us, to say that when we somehow
get in a category that allows people in other countries to
compare us to those countries that are such bad actors, it is
at that moment that we pay a real price. And we have paid that
price, Mr. Chairman. We have paid that price in this world.
So Harold Koh is warning us in a patriotic way that we
cannot allow ourselves to even have the perception of that, let
alone the reality, and I think that is a service. And, frankly,
a distortion of his words to suggest that he really believes
that we belong in that category.
And finally, the notion that somehow that Harold Koh
presumably reading an answer regarding the sharia law issue--
you know, I just read part of my statement. That doesn't mean I
didn't mean it. That doesn't mean I don't get it. And I had
Harold Koh respond to me several times without any notes,
eloquently indicating that, of course, he doesn't believe that
sharia law could control in our country.
So, frankly, I am pleased that some of these things are
coming up because they show the weakness of the criticisms that
have been leveled toward this excellent nominee.
Mr. Koh, what is your position on the appropriate
relationship between the executive and legislative branches
when it comes to foreign affairs decisionmaking?
Mr. Koh. Well, as I said in discussing this issue with
Senator Lugar, the 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.
Senator Feingold. And could you say a little more, Dean
Koh, about the main themes of your scholarly writings and your
thoughts on the main differences between what it is to be a
scholar versus a lawyer?
Mr. Koh. My scholarly work is extensive. I have said many
things. The thing about sharia law, as you pointed out, is not
something that I said. So I guess that if you are looking for
something to disagree with, you need to look to something that
I didn't say.
What I did say is very simple. Obeying the law is right and
smart, both domestically and internationally. It is smart in
the sense that it gives you the kind of moral legitimacy, the
soft power that you need to influence and lead on a
multilateral basis.
So this means that with regard to domestic affairs, the
more the President can work with Congress, consult and get the
value of Congress's experience, the more likely that that
outcome will be sustainable over time. A war that is begun with
congressional support will maintain that support longer than
one that is started without congressional approval.
At the international level, the arguments I have made are
the same. That working with other countries, agreeing on how we
ought to operate within a framework and then acting within that
framework of law protects our sovereignty in the sense of
allowing us to assert our interests within an international
framework and can make us safer.
There are so many global challenges, Senator. Every day
there is a new global challenge, whether piracy or swine flu or
economic crisis. On each of those, the United States cannot
address that problem alone. It needs to cooperate. And in
cooperating, it needs to cooperate within a framework of
international law. If we don't have that framework, we are
going to be less safe, and we won't be able to protect our
sovereignty.
Senator Feingold. Thank you, Dean.
Thank you, Mr. Chairman.
Senator Lugar. Thank you very much, Senator Feingold.
Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman.
Again, it is a pleasure to meet you and your lovely family.
Mr. Koh. Thank you.
Senator Isakson. After we met the other day in my office, I
remember telling my wife over the phone that night that I may
have talked to the most skillful attorney I had ever talked to.
And then I read an April 27 article in Newsweek, which
described you as the following. ``A tweedy, brainy legal
scholar who writes brilliant law review articles that are
carefully reasoned, if more or less impenetrable to
nonlawyers.'' [Laughter.]
I then realized why I was so impressed. I am a nonlawyer.
And so, I thought that was a good description.
But there are some hard questions I want answered. Because
of the hard questions that are out there, our advice and
consent is our responsibility not only to the Constitution, but
to the constituents that we represent.
In that same article, it says that, ``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.''
Would you address those two questions?
Mr. Koh. Senator, first, for the record, let me say I don't
own any tweed jackets. [Laughter.]
But again, that article that you mentioned is one in which
I had trouble recognizing myself. I believe that the
Constitution is controlling law. I am not on a campaign. My job
is to try to understand how the Constitution should be
interpreted.
There is certainly no campaign to shrink any provision of
the Constitution. The claim that was being made was that where
the United States has a free speech tradition that is different
from the free speech tradition of another country, how do we
enter a treaty in which that free speech might be implicated?
The answer is quite simple. When the United States ratified
the genocide convention, there was a provision about incitement
to genocide being a crime. Then Assistant Attorney General
William Rehnquist, later Chief Justice, recommended a
reservation to protect America's first amendment interests. So
we entered the treaty, and our first amendment rights were
unaffected.
On cruel and unusual punishment, as I gave citations in a
specific question asked by Senator Lugar, since 1958, the U.S.
Supreme Court has, in a case called Trop v. Dulles, said that
you decide what is unusual, for the cruel and unusual
punishments clause, by looking at evolving standards of human
decency, not just standards within a particular part of the
United States.
In a case called Atkins v. Virginia, the case raised the
question whether the State of Virginia could execute a person
who had mental retardation, and the brief that I filed on
behalf of a group of distinguished diplomats, including Tom
Pickering and Madeleine Albright, simply said the United States
is the only country in the world that engages in this practice.
A minority of States within the United States engage in this
practice. And that is unusual.
If we are on the only nation to do it, it is unusual. And
the words of the Constitution say cruel and unusual punishments
should be averted. So I don't consider that a campaign. I think
that was a following the precedents of the U.S. Supreme Court
and following the words of the Constitution itself.
Senator Isakson. This is a hard question, but I think it is
one that needs to be answered because I listened closely to
your answers, and you referred to your role and your job as an
adviser to the Secretary of State, a legal adviser to the
Secretary of State and the fact that you are going to be asked
to opine on what your opinion is based on your beliefs of the
law and your beliefs.
There has been a lot of controversy in the Senate in the
past 2 weeks over the opinions that were given by advisers to
the last administration with regard to torture, including some
who have called for the prosecution of those lawyers who were
asked to opine on various treatments that ended up in
interrogation.
Do you think a lawyer hired by the Government, confirmed by
the Senate, asked for his or her opinion to advise the
administration in their role should subsequently be held
legally prosecutable for having given their very best opinion
and judgment on that question?
Mr. Koh. Well, Senator, as you know, the decisions about
prosecution are made by the Attorney General, not by the
Secretary of State. As you also know, as someone who is seeking
confirmation to be a lawyer for the Government and to seek
confirmation to supervise an office of almost 200 lawyers, I
have to be extremely concerned about whether someone who gives
legal advice in a certain circumstance will be prosecuted.
If by taking this job, I am buying myself lawsuits and
prosecutions, obviously, that wasn't part of the original plan.
Senator Isakson. You didn't sign up for that.
Mr. Koh. That having been said, there is a process
unfolding which I am not a part of. If confirmed, I might be a
voice, but one of many voices.
The lead voice obviously is that of the President. The
President has indicated that these decisions are in the hands
of the Attorney General. The Secretary of State repeated in
testimony last week before the House Foreign Affairs Committee
that the President has laid out some basic guidelines, and I
assume that those will evolve.
Senator Isakson. One last question, and again it is a
question that has been written about your opinion regarding
President Bush's decision to go into Iraq, which I have not
read precisely. So I don't know, do you think that President
Bush violated the law or violated his authority in doing that?
Mr. Koh. Well, I wrote about two decisions by two different
President Bushes to go into Iraq. In 1990, I said that
President Bush 41's decision to do Desert Storm was lawful
under domestic law and was lawful under international law
because it was approved by a resolution of--a joint resolution
of the Congress and by a U.N. Security Council resolution.
The other intervention in Iraq, which happened in 2003, I
had no challenge to the domestic legal basis of it. But in
looking closely at the U.N. Security Council resolutions that
were invoked, I found that the wording of those resolutions
didn't give the necessary support under international law.
I think the consequence of that was that the intervention
into Iraq in 2002 did not have the kind of broad support that
we would have preferred, and that is the only point that I made
in that article.
Senator Isakson. Thank you for your time and attention.
Mr. Koh. Thank you, Senator.
Senator Lugar. Thank you very much, Senator Isakson.
Senator Shaheen.
Senator Shaheen. Thank you, Mr. Chairman.
Dean Koh, thank you very much for being here and for your
willingness to consider public service again.
Mr. Koh. Thank you.
Senator Shaheen. And I very much appreciate your pointing
out the distinction between being an academic and being a
public servant, having worked in academia for a while--sadly,
at Yale's rival institution, Harvard. I do appreciate that they
are very different roles and am reassured by your pointing out
that if you are serving in a public position, you would treat
that as such.
The State Department has turned to private security
contractors in Iraq and Afghanistan because of insufficient
numbers of State Department security personnel in some cases.
Is it your understanding that foreign governments have legal
jurisdiction over contractors that operate in those countries?
Mr. Koh. Well, Senator, first let me thank you for your
comments about the role of an academic. As an academic, you
speak in your own voice. When you are in the Government, you
are one of many voices working as part of a team. And what you
may personally think may be factored into the equation, but the
outcome maybe quite different.
With regard to the security contractor issue, Senator, the
issue has obviously arisen in Iraq, where there has now been a
change of legal status so that at this moment, security
contractors are under the jurisdiction, civil and criminal, of
Iraq. There has been, of course, the famous case about Nissour
Square, which was a great tragedy. There has been a prosecution
brought against employees of Blackwater there under the so-
called MEJA, Military Extraterritorial Jurisdiction Act.
That case is currently before a court, and there has been a
challenge made there to jurisdiction. But the district judge
has allowed that case to go forward.
So I think that you are absolutely right about the overall
problem, which is that an effort like Afghanistan and Iraq
involves many, many, many people. And to ensure that those
individuals are bound by the same rules of law that govern U.S.
Government officials in those circumstances is a complicated
jurisdictional issue.
And that is precisely why knowledge of foreign law and
international law is necessary for us to try to sort these
issues out. And if I am confirmed, I look forward to working
with you on that issue.
Senator Shaheen. Thank you.
Some have argued that the Geneva Conventions, which set the
standards for treatment of prisoners of war and noncombatants,
don't apply to members of the Taliban or al Qaeda. Do you share
that view? And if not, would you assume that the conventions
apply to both groups?
Mr. Koh. Well, it depends, Senator, very much on the
context in which the issue is being addressed. The Supreme
Court held in the Hamdan case that common article 3 of the
Geneva Conventions sets minimum standards for those who are
being detained on Guantanamo, and that is now controlling law
of the United States.
On other issues--for example, general treatment questions--
on 2 days after he took office, President Obama issued an
Executive order, which called for a 30-day review of conditions
on Guantanamo to ensure compliance with the Geneva Conventions,
and the other Executive orders issued on that day incorporated
compliance with the Geneva Convention into the Executive order.
This, by the way, is an example of what I was calling
transnationalism. These are rules of U.S. law as embodied in an
Executive order. So it is a description of something that has
been happening and will continue to happen.
Senator Shaheen. Thank you.
Senator Lugar. Thank you very much, Senator Shaheen.
Senator Barrasso.
Senator Barrasso. Thank you very much, Mr. Chairman.
Dean Koh, thank you for taking the time to visit with me. I
congratulate your mother on having two sons--that is a
remarkable accomplishment--two sons nominated at the same time
to serve our Nation. So thank you for your commitment and your
service.
I want to thank your family and congratulate all of them
who have been so instrumental in your success.
Senator Isakson talked about constitutional issues. Mr.
Koh, in your opening statement, you talked about defending our
Constitution. I would like to switch from what Senator Isakson
discussed regarding the first amendment. I want to talk about
second amendment constitutional issues.
You had argued that the United States could support global
gun control without committing itself to a regime that would
affront legitimate second amendment concerns. I wanted to talk
to you about these concerns in the context of multilateral gun
control treaties. Please explain your views on what are
legitimate second amendment concerns and what concerns you
might consider illegitimate second amendment concerns.
Mr. Koh. Well, thank you, Senator. And thank especially
your kind words about my mother. As you know, she is hoping
that if both of her sons get confirmed, that will be her
Mothers Day present.
The point you raise has to do with the international effort
to regulate gun transfers, firearm transfers across borders. It
is an effort which is at a very early stage, and let me make
clear 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 a
legitimate hunter's right to use a hunting rifle in a national
or State park.
At the time that the issue first arose, some second
amendment concerns were raised that it might interfere with the
right to bear arms. In an article I wrote, I pointed out that
exports of arms have always been subject to regulation, the
Arms Export Control Act. But it did not interfere with domestic
possession of these arms, which is obviously a domestic
concern.
Subsequently, the Supreme Court, in a case called Heller,
reaffirmed and strengthened the second amendment position. That
was before--that came after I wrote the article. I have not
redone the analysis of the article in light of the Heller
decision.
But I would say again that a regime that is designed to
regulate illegal and illicit transfers of certain kinds of
assault weapons to foreign countries, which are already
regulated, is very distinct from the kinds of concerns that
animate the second amendment, and I do not see that there would
be a conflict. If there were, obviously, the Constitution would
control. And obviously, if confirmed, I would be consulting
with members of this committee on how the core interests of the
United States should be protected.
Senator Barrasso. Well, you raised the Heller case and the
decision by the Supreme Court because in a 2003 Fordham Law
Review article you wrote that ``revisionist'' readings of the
second amendment give greater weight to the individual's right
to bear arms. Could you discuss that a little bit?
Mr. Koh. Yes, I was referring to writings by my colleague
Akhil Amar of Yale University and Professor Laurence Tribe of
Harvard.
The question that I was asking was whether they are finding
more protection, constitutional protection for individual right
to bear arms gave the second amendment a different meaning than
it had been given in the case of United States v. Miller, which
was the prior Supreme Court interpretation of the issue. I
think that the Supreme Court's decision last term went even
beyond the statements of those scholars with regard to the
second amendment.
Nevertheless, I don't think that the issue will affect the
treaties that are under discussion. There are two treaties.
There is a Latin American treaty, which last week the President
announced that he would support. There has been discussion of
an arms trade treaty, but there is no text. And so, it is
obviously premature to analyze whether it is constitutional or
not until we see a text.
Senator Barrasso. The Latin American treaty, which was
signed by President Clinton in 1997, has not been ratified by
the United States Senate. It would take 67 votes for
ratification. The President described it as a high priority
item for him.
When you closely read the treaty, I know there are some
issues that are very concerning to people that own guns in the
United States, people that participate in gun shows, and people
who reload their own ammunition. So I know that there are still
significant concerns related to that specific treaty.
So I would just like to ask you do you believe the second
amendment protects the individual right of ordinary Americans
to keep and bear arms? I mean, forget about the hunting part.
Just to keep and bear arms unrelated to militia service?
Mr. Koh. The decision of the Supreme Court in Heller is the
law of the land. Obviously, I respect that. And to the extent
to which those ideas are captured in that decision, yes, I do
completely agree.
Senator Barrasso. Will you commit to working with the
Senate to ensure that any international agreement that the
administration considers will not subvert our second amendment
right to bear arms?
Mr. Koh. I will go further than that, Senator. Any treaty
that comes before this committee that raises a constitutional
question, I will work with members of the committee, if
confirmed, to ensure that those constitutional interests are
protected, whether it is first amendment, second amendment,
eighth amendment, or anything else.
Senator Barrasso. Thank you, Dean Koh.
Thank you very much, Mr. Chairman.
Senator Lugar. Thank you, Senator Barrasso.
Senator Wicker.
Senator Wicker. Thank you.
Dean Koh, I very much enjoyed our informal chat the other
day. And like so many other members of the committee, I would
observe that although I haven't known you, you and I do have a
lot of mutual friends. And many of them have called with great
endorsements of your candidacy and great admiration. And I
respect that and consider that.
Let me also just observe that I don't think you want to
abolish Mothers Day. I don't think you want to impose sharia
law in the United States. By the same token, I don't think
there is anyone within the sound of my voice who believes that
the United States can act unilaterally without some sort of
international agreements and cooperations.
And then, finally, before I get to my question, I would
observe in response to Senator Kerry's statement about why your
family left Korea, it seems to me that actually they left North
Korea to escape an oppressive domestic law that didn't
appreciate the rights of individuals there.
Having said that, let me get to the question about the axis
of disobedience. Surely you must have realized that that would
be a provocative statement. And based on my conversation with
you earlier, it is clear to me that that is your legal opinion.
So the disobedience would be disobedience to international law.
Is that correct?
Mr. Koh. Yes, Senator. What I was saying there was that it
is harder for us to get other nations to obey international law
if we are ourselves perceived as disobeying international law.
Senator Wicker. OK. Well, let me then follow up on Senator
Isakson's point because he asked you about the United States
decision to invade Iraq, and you answered in the context of an
article that you wrote. But you and I had a conversation also
in which we discussed this a little further.
Clearly, your article suggested that President Bush 41 did
better than President Bush 43, and I think that is a debate
that certainly we can have. But I did understand your answer to
my question in our private conversation to be, when pressed,
that indeed our invasion of Iraq was a violation of
international law. Is that a correct characterization of your
answer to me last week when we visited?
Mr. Koh. Senator, I did not quibble with the domestic legal
basis for the intervention in Iraq in 2003, which was supported
by a resolution of this Congress. What I did say was that the
necessary legal authorization by the Security Council had not
been secured and that, therefore, it put us in the awkward
position of an intervention which was lawful domestically and
unlawful internationally. That has, I think, created a problem
in our gaining the support of other nations subsequently and in
our efforts in Iraq.
Senator Wicker. So, in your opinion, our invasion of Iraq
was unlawful internationally?
Mr. Koh. Yes.
Senator Wicker. And so, let me then ask you this. You
stated with regard to piracy, which we are going to have to
deal with in this committee and in this Congress and in this
administration, that there is no solution to piracy short of
international law. Was that your testimony today?
Mr. Koh. By its nature, piracy is an act that cuts across
borders. Even if almost every country acts effectively against
pirates, if one country does not, they can seek safe haven
there. So it is a problem, a global problem that requires a
global solution.
Senator Wicker. Well, there is no question about it. But
the troubling part of your answer, which I do believe was that
there is no solution to piracy short of international law, does
that mean that absent some international agreement, which we
might or might not be able to obtain, that the United States,
of its own volition as a matter of national defense, is
powerless to take action against piracy? The only solution is
to rely on the agreement of other countries?
Mr. Koh. That wasn't my point, Senator. My point was that
there are limits to how effectively we can act against pirates
in the absence of the international legal framework. With the
international legal framework, we are on the strongest basis,
and that was the same point I made with regard to Iraq.
Understand, Senator, the servicemembers in Iraq, the effort
that is going on there is something which is of major concern
to every American. There are many, many legal issues that would
arise, if I were confirmed, that I would need to address, and
my goal would be to act in the best interests of our country,
our soldiers, and our interests in Iraq.
That having been said, I do believe that the absence of the
international law justification that I would have hoped to see
in 2003 has left us in a weaker position, which is why I
believe that with regard to pirates, it is very important to
get an international legal framework organized so that we could
marshal the most effective and acting using the maximum of what
Secretary Clinton has called our smart power in this
circumstance.
There is no problem with doing it alone. It is just that it
is not nearly as effective. If there are 193 countries in the
world, one country can't stop all pirates.
Senator Wicker. Let me ask you this. You remember when the
nation of Israel attacked the Iraqi nuclear installation?
Mr. Koh. At Osirak. Yes, Senator.
Senator Wicker. Was that a violation of international law?
Mr. Koh. Senator, that has often been cited as an example
of a preemptive act of self-defense. In fact, it is often cited
as the quintessential example of extending the basic principle
of self-defense to one in which you are heading off a future
attack. This is one of the items that I addressed in Senator
Lugar's question for the record on this subject.
Senator Wicker. In your legal opinion, Israel's action
against the Iraqi sites was not a violation of international
law?
Mr. Koh. Senator, my view is that unilateral uses of force,
when they are not in self-defense, should be avoided. Sometimes
there may be no alternative. Sometimes a multilateral use of
force can be organized in a way that puts our response on the
strongest possible basis.
I think that scholars can debate and do debate the
lawfulness of the Israeli attack on the Iraqi nuclear reactor.
Does it fit within the test put forward, which is that an
attack be imminent, that the response be necessary and
proportional? And people debate----
Senator Wicker. And you are not prepared to give a
definitive answer to that at this juncture?
Mr. Koh. I don't have the information, Senator, that the
Israeli officials had about what was the likelihood of an
imminent attack before they made their decision. If I were
confirmed, I would be in a position where I could ask for
information, particularly in the context of being asked to give
legal advice to the Secretary and to the President.
Senator Wicker. One last thing, Mr. Chairman, if I might?
Having an effective solution based on international cooperation
is one thing. It seems to me a violation of international law
is another thing.
Is there a remedy out there for people in other countries
to the alleged violation that the United States engaged in, in
your legal opinion, of international law in invading Iraq? Do
we need to be fearful of a remedy at law in some court because
we violated international law, which in your opinion we did?
Mr. Koh. Well, I don't mean to go to Latin in this
circumstance, but the great Myres McDougal of Mississippi, who
was a professor of international law at our law school, talked
about the difference between jus ad bellum, which the law of
going to war, and jus in bello, which is the law in war. So
whatever may have been the defects of the lawfulness of the
original intervention, if we conduct the war in a lawful
fashion, those are the incidents for which there would be
exposure.
I don't know, Senator, of any exposure that we have for the
original intervention. I will say that some of the difficulties
the United States has had in obtaining cooperation in bringing
about the Iraq intervention and the subsequent efforts to make
Iraq an independent and democratic nation have been ways in
which other nations have been responding to what they perceive
to be our failure to cooperate within the framework of
international law.
Senator Wicker. Thank you very much, Mr. Chairman.
Senator Lugar. Thank you very much, Senator Wicker.
Let me ask if Senators have additional questions?
Senator Feingold. Mr. Chairman, just briefly, if I may?
Senator Lugar. Yes, Senator Feingold.
Senator Feingold. I just want to review a couple of the
items that have been discussed by my colleagues on the other
side of the aisle because each of them highlights Dean Koh's
commitment to law and following the law as opposed to a
political view.
First is the one that Senator Wicker just brought up. The
issue of whether the Iraqi invasion in 2003 was lawful or
unlawful under international law. Dean Koh clearly stated as a
legal matter that under the international regime that had acted
on this matter through the Security Council and otherwise, that
this certainly appeared to be illegal under that regime.
However, the dean has highlighted that there are
situations--correct me if I am wrong. You are the dean. I am
not. But I think under article 51 of the United Nations
charter, there is the opportunity to act in cases of self-
defense.
So his answer, when he talks about the regime that had been
put forward by the Security Council, spoke to that regime. It
did not preclude the possibility that in certain situations,
such as the one you raised--the Israeli decision to take out
the Iraqi nuclear plant--may well have been, as I understand
the dean, within article 51.
So I assume the analysis would be the situation in 2003 is
one that could legitimately be put under article 51? My view,
obviously, is that it could not. I take it that would be a fair
statement of your view as well?
Mr. Koh. My impression was that the conditions that existed
at the time that led the Israelis to attack the Iraqi nuclear
reactor were different from the conditions that existed which
led the United States to engage in its international
intervention in Iraq in 2003.
There were Security Council resolutions. My reading of
those resolutions were they authorized us to contain Saddam
Hussein, not to go in and remove him. And it was after Security
Council Resolution 1441, where some were pressing for an
additional resolution and others were satisfied to go forward
on the resolution that existed, and that disagreement has lived
with us to the present day.
Senator Feingold. Now going back to another subject that I
think you and I and our friends started debating about 1975.
There was one guy in the room who was asserting, a guy from
Wisconsin, that the second amendment was an individual right.
And not all of my friends agreed with me, but we debated it
back and forth.
And the dean here has acknowledged that for the first time,
the U.S. Supreme Court finally ruled what I thought was right.
In a close decision, where I filed an amicus brief with many
from the other side of the aisle saying I believe it is an
individual right.
But I believe I heard you say that you have no doubt in
your mind, despite the criticism that has been raised with
regard to the Heller decision, that it is, in fact, the law of
the land. Is that correct, Dean?
Mr. Koh. Well, Senator, in 1975, you called this one better
than I did. [Laughter.]
Senator Lugar, you may not know that Senator Feingold's
undergraduate dissertation was about the second amendment, and
I think it was 400 pages long.
Senator Feingold. Only 300. [Laughter.]
With footnotes.
Mr. Koh. He forced me to read it, which I did. And
frankly----
Senator Feingold. And fell asleep.
Mr. Koh. No. I had no idea at the time that there was such
an extensive basis. And over the years, I have watched as this
particular approach to the second amendment has gained various
academic adherence and then was adopted in good measure by the
Supreme Court's opinion in Heller. So I think that it is a
constitutional analysis which has carried the day.
Senator Feingold. Finally, with regard to the death penalty
in the cruel and unusual standard, obviously, many of us have
our own views. And frankly, I have been very disappointed that
the Supreme Court moved away from what I thought was a trend to
declare the death penalty inherently unconstitutional. It was a
great disappointment to me and something I wish would change.
But I asked you in my office whether you believe that the
death penalty as a general matter is permitted under the eighth
amendment, and I believe you said that is clearly the law of
the land. Is that correct, Dean?
Mr. Koh. That is correct, Senator.
Whatever my personal views about the death penalty might
be, if confirmed, and if I took an oath to uphold the
Constitution and laws of the United States of America, that
would include the administration of the death penalty.
Senator Feingold. Mr. Chairman, thank you for the
additional time. I think what the dean, of course, has
demonstrated here is he clearly understands his role as legal
counsel is very different from that as an academic and would be
a true adherent to our Constitution and our laws.
Thank you, Mr. Chairman.
Senator Lugar. Well, these additional questions gave the
dean an opportunity to mention 1975 and your thesis. And so,
that has embellished our hearing. [Laughter.]
Senator Wicker, do you have additional questions?
Senator Wicker. Well, I am tempted to ask that that
dissertation be attached to the record, but I think I will
withhold on that.
Mr. Koh. Senator, then three of us would have read it.
[Laughter.]
Senator Feingold. You know, I thought I was for your
nomination, Dean Koh.
Senator Lugar. Perhaps we better end the hearing before
there are further----
Senator Shaheen.
Senator Shaheen. No.
Senator Lugar. Well, I thank the Senators. I thank you very
much, Dean Koh, for your testimony, and for your response to
our questions both before the hearing and during the hearing.
I would just observe that simply as a general editorial
opinion that, as you have noted, this comes before the
Judiciary Committee much more frequently than before this
committee. But there are enormous debates in the Senate as well
as the American people about various legal principles, even
discussion of various constitutional amendments and their
meaning for each one of us.
And as a rule, thank goodness the Judiciary Committee deals
with this and witnesses who are hoping to become judges and at
various levels, and these are serious issues in which many
Americans believe the judiciary is often making law as opposed
to interpreting and judging it.
However, the dilemma obviously for us today is that the
State Department does require a legal counsel--not a judge, as
you pointed out, but a counsel--and hopefully, someone of
experience and wisdom who has seen a great deal of American
foreign policy as well as judicial principles. So we appreciate
very much your preparation for the hearing.
Let me just indicate, as Senator Kerry has requested, that
it would be helpful that the record remain open until the end
of the day tomorrow--and that would be Wednesday--for members
to submit additional questions for the record. And we would ask
you, Dean, to respond as rapidly as possible to those questions
so the record can be completed.
Then our chairman, Senator Kerry, at some appropriate
moment will call for a business meeting of the committee to
consider your nomination at that point.
We thank you again, and we thank all who have come to
support you today. And the hearing is adjourned.
Mr. Koh. Thank you so much, Senator.
[Whereupon, at 4:00 p.m., the hearing was adjourned.]
----------
Responses to Additional Questions Submitted for the Record by Members
of the Committee
Responses to Additional Questions Submitted for the Record
to Harold Koh by Senator Lugar
Question No. 1. The United States has historically taken the
position that the International Covenant on Civil and Political Rights
does not apply to U.S. actions outside the territory of the United
States, including extraterritorial actions undertaken during the course
of armed conflict. If confirmed as Legal Adviser, do you intend to
recommend any change in this position? If so, please explain the
changes you intend to propose and the reasons for them.
Answer. I recognize that the question of the extraterritorial scope
of the International Covenant on Civil and Political Rights has
received particular attention during the last several years. But it
would be premature for me to suggest what interpretation I would
recommend until I have had the opportunity to review fully the U.S.
Government's rationale of its position and to engage in full
discussions of this issue with all relevant U.S. Government legal
offices. If confirmed, I would look forward to doing so, as well as to
consulting further with members of this committee and other interested
Members of Congress on this important issue.
Question No. 2. In a 2007 article in the Journal of International
Economic Law, you criticized positions taken by the Bush administration
in litigation under the Alien Tort Statute and stated, inter alia, that
``there has been no change in the wording of either the Alien Tort
Statute (ATS) or the Torture Victim Protection Act (TVPA), and thus, no
apparent legal reason why the United States should suddenly depart from
the positions of the Carter and Clinton administrations supporting the
use of U.S. courts for Filartiga-type recovery under these two
statutes.''
Under what circumstances do you believe the executive branch
may appropriately change its interpretation of treaties or
statutes from those taken under prior administrations?
Answer. I firmly believe in the value of continuity in legal
interpretation of treaties and other legal obligations. Our legal
system is based on a deep respect for legal precedent, although it does
allow for evolution of the law to address new issues and challenges. My
view is that the executive branch should seek to offer consistent
interpretations of treaties and statutes and, to promote this
continuity, should give significant weight to the legal judgments and
precedents of prior administrations. This is particularly true of
statutes such as the Alien Tort Claims Act and the Torture Victims
Protection Act, where Congress assigned a task not to the executive,
but to the courts. In all cases, I would apply a presumption that an
existing interpretation of the executive branch should stand, unless a
considered reexamination of the text, structure, legislative or
negotiating history, purpose and practice under the treaty or statute
firmly convinced me that a change to the prior interpretation was
warranted.
Question No. 3. If confirmed as Legal Adviser, to what extent will
you consider yourself bound in providing advice to the Department of
State on questions of statutory or treaty interpretation by prior
executive branch interpretations of the statute or treaty in question?
Answer. If confirmed as Legal Adviser, on statutory and treaty
matters, as with all legal standards, I would begin by undertaking a
full and careful review of the views of previous administrations. I
would give significant weight to legal judgments and precedents of
prior administrations. I would look first to prior judicial and
executive branch interpretations of the treaty or statute in question,
with the presumption that the existing executive branch interpretation
should stand, unless a considered reexamination of the text, structure,
legislative or negotiating history, purpose and practice under the
treaty or statute firmly convinced me that a change to the prior
interpretation was warranted.
Question No. 4. In a 1994 article in the Yale Law Journal
discussing the U.S. Supreme Court's decision in Sale v. Haitian Centers
Council you wrote that ``Haitian Centers Council takes its place atop a
line of recent Supreme Court precedent misconstruing international
treaties. In the past few years, the Court has sanctioned the
emasculation of a range of treaties governing service of process,
taking of evidence, bilateral extradition, and now nonrefoulement.''
Under what circumstances, if any, do you believe the
executive branch may adopt a different interpretation of the
legal effect of a treaty than that adopted by the U.S. Supreme
Court in a case interpreting the treaty?
Answer. Under our Constitution, the Supreme Court has the final
duty to interpret a particular treaty and to say what it requires as a
matter of domestic law. Where the Supreme Court has spoken definitively
on the legal effect of a treaty, its rulings are obviously controlling.
Where the Court has not spoken definitively, the executive branch
should provide its best interpretation of the legal effect of the
treaty by looking to the Court's and lower courts' rulings and prior
executive branch interpretations of the treaty in question, as well as
to the text, structure, negotiating history, object and purpose, and
practice under the treaty, as well as any reservations, understandings
and declarations that accompany the advice and consent of the Senate.
Question No. 5. If confirmed as Legal Adviser, to what extent will
you consider yourself bound in providing advice to the Department of
State on questions of treaty interpretation by interpretations of the
treaty in question adopted by the U.S. Supreme Court?
Answer. As my writings reflect, my long-held view is that a Supreme
Court ruling on a matter of treaty interpretation is authoritative as
U.S. law and binds the political branches of the Federal Government,
lower courts, and the states. If confirmed, when advising the
Department of State on questions of treaty interpretation, I would
defer to the Supreme Court's interpretation whenever the Court has
spoken definitively on the particular question of treaty interpretation
at issue.
Question No. 6. In testimony before this committee in 2002 on the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) you stated that ``The United States can and should accept
virtually all of CEDAW's obligations and undertakings without
qualification . . . Although past administrations have proposed that
ratification be accompanied by certain reservations, declarations, and
understandings, only one of those understandings, relating to
limitations of free speech, expression, and association, seems to me
advisable to protect the integrity of our national law.''
Under what circumstances, if any, do you believe the
executive branch may adopt a different interpretation or
application of a treaty's provisions than those reflected in
reservations, understandings, and declarations accompanying the
Senate's advice and consent to the treaty?
Answer. My long-held view is that the executive branch is bound to
comply with the reservations, understandings, and declarations that
accompany the Senate's advice and consent to ratification of a treaty.
As I have noted in my writings, it is clear that the Senate may give
its consent to treaty ratification subject to conditions ranging from
reservations to declarations to understandings of what particular
treaty terms mean. If the President and our treaty partner choose to
make a treaty by exchanging instruments of ratification, they can only
make the treaty to which the Senate has advised and consented.
Accordingly, under U.S. law, the President is bound, not only at the
time of ratification but after, to honor the conditions on which the
Senate has based its consent.
Question No. 7. If confirmed as Legal Adviser, to what extent will
you consider yourself bound in providing advice to the Department of
State on questions of treaty interpretation and application by
reservations, understandings, and declarations accompanying the
Senate's advice and consent to the treaty in question?
Answer. Should I be confirmed as Legal Adviser, I would consider
myself bound to honor the reservations, understandings, and
declarations that accompany the Senate's advice and consent to a
treaty. I have expressed in my writings my belief that the President is
bound to honor the conditions upon which the Senate has based its
consent. Under such circumstances, it follows that the President's
subordinates, including the Legal Adviser to the Secretary of State,
would be bound to honor those conditions as well.
Question No. 8. You have been Counsel of Record in amicus briefs
filed in the U.S. Supreme Court urging the Court to consider the law
and practice of foreign jurisdictions when interpreting rights-bearing
provisions of the U.S. Constitution. If confirmed as Legal Adviser,
what role, if any, do you expect to have in the Obama administration's
decisions on the interpretation of rights-bearing provisions of the
U.S. Constitution, and on positions the Obama administration takes on
such issues in litigation?
Answer. Since the President nominated me, much has been said about
my views on this question. If confirmed, I would be taking the oath to
support and defend the Constitution of the United States. 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 my 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.
Within the executive branch, the Department of Justice has been
assigned the primary responsibility for interpreting the rights-bearing
provisions of the U.S. Constitution. It is my understanding that the
Department of Justice consults with the Department of State on the
interpretation of a rights-bearing provision of the U.S. Constitution
in cases where that interpretation implicates the foreign relations of
the United States. If confirmed, I would expect, as prior Legal
Advisers have done, to participate in such discussions with the
Department of Justice and other relevant agencies in the U.S.
Government when those cases arise.
Question No. 9. A December 12, 2008, Memorandum of Understanding
between the William J. Clinton Foundation and the Obama Presidential
Transition Foundation governs certain fundraising activities of the
Clinton Foundation during the period of Hillary Rodham Clinton's
service as Secretary of State. The Memorandum of Understanding
provides, inter alia, for the State Department's designated agency
ethics official to review and advise on ethics issues potentially
raised by certain proposed contributions to the Clinton Foundation.
The State Department's designated agency ethics official is
employed within the Department's Bureau of Legal Affairs, over
which you will have management responsibility if confirmed as
Legal Adviser. If confirmed, what role, if any, do you expect
to play with respect to the functions performed and the advice
provided by the designated ethics official on issues addressed
by the Memorandum of Understanding?
Answer. Under the December 12, 2008, Memorandum of Understanding
between the William J. Clinton Foundation and the Obama Presidential
Transition Foundation, the Department of State's Designated Ethics
Official, who also serves as a Deputy Legal Adviser in the Office of
the Legal Adviser, has been given specified ethics duties with respect
to reviewing and advising on certain foreign government contributions.
I believe that this official as well as other career government
attorneys must be allowed to provide their considered, independent
judgments on ethics matters to senior Department officials. If
confirmed as Legal Adviser, I would take all necessary steps to support
that goal.
Question No. 10. In a number of law review articles, you have
developed a theory of ``transnational legal process'' in which you seek
to explain ways in which states comply with rules of international law
through the internalization of such rules into domestic law and
processes. In a 2004 law article in the Berkeley Journal of
International Law addressing this theory you wrote: ``Some have asked
me, `Is your notion of transnational legal process an academic theory?
Is it an activist strategy? Or is it a blueprint for policymakers?'
Over time, my answer has become, `It is all three.' ''
In what sense do you consider your theory of transnational
legal process a blueprint for policymakers?
Answer. U.S. policymakers frequently use transnational legal
process as a tool to urge other nations to obey international law. As I
explain in the 2004 article, ``transnational legal process'' is a
shorthand description for how state and nonstate actors interact in a
variety of domestic and international fora to encourage nations to obey
international norms as a matter of domestic law. For example, U.S.
policymakers encouraged China to join the World Trade Organization and
then to modify Chinese domestic law to conform with international rules
on intellectual property, an objective that is important to U.S.
economic and other interests. When designing legal rules, U.S.
policymakers may take into account all available enforcement
mechanisms, with an eye toward furthering U.S. foreign policy
objectives.
Question No. 11. What aspects of your theory of transnational legal
process do you believe are relevant to the role of the Legal Adviser to
the Department of State and, if confirmed, what guidance do you expect
to draw from this theory in performing the functions of the Legal
Adviser?
Answer. My approach to transnational legal process assumes that
U.S. Government officials, including those in the State Department,
must first and foremost uphold the Constitution and laws of the United
States of America. When U.S. foreign policy decisions are supported by
the law, they enjoy the legitimacy that comes from compliance with the
law and reflect America's commitment to the rule of law as a guiding
value. Government lawyers enable policymakers to achieve policy
objectives within the confines of the law and urge policymakers to
reexamine any policy objective that cannot be achieved lawfully. Thus,
when the Legal Adviser helps to negotiate a treaty, for example, he
helps to guide policy choices by both our government and its treaty
partner into a lawful channel that promotes the rule of law.
Question No. 12. In a 2007 comment in Michael Doyle's book
``Striking First,'' you wrote ``[I]f you look at some of the yielding
lawyers with whom the current President has surrounded himself, at the
White House counsel's office, as attorney general, and as general
counsel of the Defense Department, you quickly conclude that, sadly,
these are not the kind of strong-willed, independent-minded attorneys
who, in a unilateral situation, are likely to impose restraints upon
the President's will, based on the rule of law.''
In the context of these comments, please discuss the general
approach you would intend to take, if confirmed, in providing
legal advice to the Secretary of State and other Department
officials, and the role you believe the Legal Adviser should
play in assisting policymakers to achieve desired policy
objectives.
Answer. If confirmed as Legal Adviser, my highest priority would be
to provide the best possible legal advice to the Secretary of State and
other State Department officials that is consistent with the
Constitution and laws of the United States. Legal advisers should give
policymakers honest and accurate advice about what obligations and
opportunities the United States faces under international law, what
room exists for good faith interpretation of legal terms, and what
consequences the United States might expect from taking positions that
are inconsistent with its international obligations. If confirmed, I
would work to help client officials achieve desired policy objectives,
but only so long as those objectives are consistent with the
Constitution and our laws.
During nearly 30 years of working alongside government lawyers--
including my own time working in the Reagan administration as an
attorney-adviser at the Office of Legal Counsel and in the Clinton
administration as Assistant Secretary of State for Democracy, Human
Rights and Labor--I have found that the best government legal counsel
do not either ``just say yes'' or ``just say no.'' The first approach
too easily lends itself to lawyers bending the law to allow the
administration to do whatever what it wants to do; the second approach,
without more, too easily lends itself to lawyers who do not present
policymakers with all available lawful options. A third approach, which
I favor, involves the legal counsel working closely with policymakers
throughout the policy process to develop alternative, lawful means of
obtaining smart, sensible policy objectives. In all cases, though, a
government lawyer must be prepared to hold policymakers to their oaths
to support and defend the Constitution of the United States. If
confirmed, that is what I would intend to do.
Question No. 13. In a 2004 law article in the Berkeley Journal of
International Law you wrote the following: ``Turning to the United
States, the final member of the `axis of disobedience,' our greatest
surprise should be how quickly after September 11 we turned the story
from the noncompliance of others with international law, to our own
noncompliance. Examples abound: First and most obviously, the U.S.
unsigning of the International Criminal Court Treaty; second, the U.S.
attitude toward the Geneva Conventions--including its actions in Abu
Ghraib, its decision to create zones in Guantanamo in which people are
being held without Geneva Convention rights as well as to designate
certain U.S. citizens within the United States as enemy combatants; and
third, the death penalty, which has become a growing irritant in the
relationship between the United States and the European Union, even in
the war against terrorism.''
Please explain in what sense you believe the so-called
``unsigning'' of the Rome Statute of the International Criminal
Court amounts to noncompliance with international law. Do you
believe that international law requires states to become
parties to particular treaties or precludes states from
expressing an intention not to become parties to treaties they
have previously signed but not ratified?
Answer. Unfortunately, aspects of the article cited have been
misunderstood by some commentators. I do not believe that international
law precludes states from expressing an intention not to become parties
to treaties they have previously signed but not ratified. However, I do
believe that America's reputation for respect for international law,
and its capacity to secure the compliance of other nations, can be
harmed by actions that withdraw from or undermine international legal
obligations that have been previously undertaken. The specific point I
was making in the article is that when we are perceived by the world to
be noncompliant with international norms and obligations, we may
encourage other countries to do the same.
Question No. 14. Please explain in what sense you believe that U.S.
practice with respect to the death penalty amounts to noncompliance
with international law.
Answer. The specific point I was making in the article was that the
continuing U.S. use of the death penalty can pose an obstacle to
international cooperation to achieve compelling national objectives,
for example, to the extent that the possibility of the death penalty
may complicate the extradition of terrorist suspects from the European
Union. The Supreme Court has also recently found that particular U.S.
death penalty practices do not comply with constitutional standards,
invalidating the practice of executing offenders with mental
retardation and offenders below the age of 18. Atkins v. Virginia, 536
U.S. 304, 316-17 n.21 (2002); Roper v. Simmons, 543 U.S. 551, 577
(2005). In neither case did the Court apply international law directly.
But in both cases, the majority did find that the challenged practice
violated the ``cruel and unusual punishments'' clause of the eighth
amendment of the United States Constitution, first by looking to the
practice of domestic legislatures and juries, and then confirming the
``unusual'' nature of the practice by examining whether those practices
had also become ``unusual'' internationally, contrary to the ``evolving
standards of [human] decency'' long applied to construe the eighth
amendment. See Trop v. Dulles, 356 U.S. 86, 101 (1958).
Question No. 15. In November 2001 you delivered the Edward L.
Barrett, Jr. Lecture on Constitutional Law at the University of
California, Davis School of Law. In that lecture, you discussed your
tenure as Assistant Secretary of State for Democracy, Labor and Human
Rights between 1998 and 2001, and stated ``While I recognized that the
United States stood increasingly among the minority of nations in its
adherence to the practice [of capital punishment], I did not believe
that a customary norm of international law had yet formed condemning
the practice.''
Do you believe that a customary norm of international law
currently exists condemning the practice of capital punishment?
If so, what consequences do you believe flow from the existence
of such a norm? If confirmed as Legal Adviser, what steps would
you recommend that the United States take in light of any such
norm?
Answer. While I recognize that the United States stands
increasingly among the minority of nations in its adherence to the
practice of capital punishment, I do not believe that a customary norm
of international law has formed prohibiting the general practice of
capital punishment.
Question No. 16. In the same lecture, you stated that prior to
accepting the position as Assistant Secretary for Democracy, Labor, and
Human Rights, ``I wondered whether I could publicly defend the legality
of the death penalty. My initial view was that, whatever my moral
beliefs, as an official sworn to uphold the Constitution and laws of
the United States, I could defend the legality of the death penalty, so
long as it was, in fact, administered as Gregg and Furman required
according to exacting constitutional procedures.'' Later in the same
lecture, you stated that ``One day during my time in government, while
being challenged on the death penalty, I could no longer find it in my
heart to defend the practice. I found myself morally convinced that its
continuing use is not only utterly wrong, but also unconstitutional.''
In recent years, legal advisers to the State Department have been
called upon to address and defend aspects of U.S. practice with respect
to the death penalty, including in litigation before the International
Court of Justice and in connection with periodic reports of the United
States to human rights treaty bodies monitoring the implementation of
the International Covenant on Civil and Political Rights and the
Convention on the Elimination of Racial Discrimination.
In light of the development you have described in your views
on capital punishment as practiced in the United States, do you
believe you will be able to represent the United States on
issues related to capital punishment if you are confirmed as
Legal Adviser? Please explain the approach you would intend to
take on such issues.
Answer. If confirmed as Legal Adviser, I would take an oath to
support and defend the Constitution of the United States. In carrying
out my governmental duties, I would stand in much the same position as
a judge in a state that administers the death penalty who personally
opposes the death penalty, but still must administer that penalty
because it is the law of his or her state and because he or she has
taken an oath to uphold that law. Because I acknowledge that no norm of
customary international law has formed condemning the general practice
of capital punishment, I would have no difficulty making such an
assertion to an international body.
Question No. 17. In testimony before the Senate Judiciary Committee
in September 2008, you stated that the next U.S. administration
``should reengage diplomatically with the Contracting Parties to the
International Criminal Court to seek resolution of outstanding U.S.
concerns and pave the way for eventual U.S. ratification of the Rome
Treaty.''
Please indicate what specific concerns you believe would
need to be addressed before it would be advisable for the
United States to consider becoming a party to the Rome Statute.
Answer. The recent bipartisan American Society of International Law
Task Force on the International Criminal Court--which was cochaired by
former Legal Adviser William H. Taft IV and Judge Patricia Wald and
included former Supreme Court Justice Sandra Day O'Connor--recommended
that the United States could announce a policy of ``positive
engagement'' with the International Criminal Court. Such a policy would
allow the United States to help shape the development of the Court and
could facilitate future consideration of whether the United States
should join the Court. See ``American Society of International Law Task
Force, U.S. Policy Toward the International Criminal Court: Furthering
Positive Engagement iii'' (2009), http://www.asil.org/files/ASIL-08-
DiscPaper2.pdf.
In considering such a recommendation, among the many questions
would be: Whether to announce a new policy toward the Court; whether
and how to respond to the 2002 ``unsigning'' of the Rome Statute;
whether and how to support the ICC's Prosecutor in particular cases;
whether to participate in some capacity in the 2010 conference that
will address the definition of the crime of aggression; whether to
propose amendment or waiver of particular provisions of the American
Servicemembers' Protection Act; and whether ultimately to seek
ratification of the Rome Treaty, a step that would require the Senate's
advice and consent. All of these issues would require extensive
interagency discussions, in which I would hope to participate if
confirmed.
In particular, the U.S. Government has long expressed concern about
the authority of the ICC Prosecutor to initiate investigations of U.S.
soldiers and government officials stationed around the world.
Particularly because the United States has the largest foreign military
presence in the world, this is an important issue on which we would
need further discussion and clarification within the government. If
confirmed, I would also wish to consult extensively with military
commanders and other experts, and members of this committee, before I
would deem it advisable to recommend to the Secretary of State and the
President that the United States take any steps with regard to the Rome
Statute.
Question No. 18. In the same testimony, you urged that ``at the
earliest opportunity, the new Secretary of State should withdraw the
Bush administration's May 2002 letter to the United Nations `unsigning'
the U.S. signature on the Rome Treaty creating the ICC, restoring the
status quo ante that existed at the end of the Clinton
administration.''
What do you believe the legal effect of such an action would
be? What obligations, if any, would the United States incur in
relation to the Rome Statute if it took this step?
Answer. As a matter of international law, the May 2002 letter did
not actually result in the United States ``unsigning'' the Rome
Statute, as the United States signature remains on the operative legal
instruments. The stated intent of the May 2002 letter was instead to
relieve the United States of any current obligation to refrain from
acts that would defeat the Rome Statute's object and purpose. A
withdrawal of the May 2002 letter would neither bind the United States
to become a party to the Rome Statute, nor increase the risk of
prosecution posed to U.S. citizens, such as soldiers stationed abroad.
If confirmed, in considering whether to make any recommendations to the
Secretary of State and the President with regard to the Rome Statute, I
would consult fully within the executive branch, including with the
military, as well as with members of this committee.
Question No. 19. The Bush administration's May 2002 letter stated,
in pertinent part, that ``the United States does not intend to become a
party'' to the Rome Statute. Is it the position of the Obama
administration that the United States does intend to become a party to
the Rome Statute?
Answer. With respect to the position of the Obama administration, I
would refer you to the answer that Secretary Clinton provided to this
committee during her confirmation hearing in response to a written
question concerning the administration's position on becoming a party
to the Rome Statute. If confirmed, I would hope to participate in
discussions with the Secretary of State, other officials within the
State Department and other agencies, and members of the Senate Foreign
Relations Committee and other interested Members of Congress on this
important issue.
Question No. 20. The Assembly of States Parties to the Rome Statute
is in the process of considering whether to adopt a definition of a
crime of aggression over which the International Criminal Court would
exercise jurisdiction. What interests do you believe the United States
has with respect to whether, and in what form, the Assembly of States
Parties adopts a crime of aggression? What steps do you believe the
United States should take to advance and protect its interests in
connection with this process?
Answer. The crime of aggression was included, but not defined, as a
potentially prosecutable offense in the 1998 International Criminal
Court negotiations. A review conference will be held next year at which
parties to the Rome Statute and observers are expected to discuss both
the definition, and the circumstances under which the crime of
aggression could be investigated and prosecuted. The United States has
substantial interests in whether, and in what form, the Assembly of
States Parties adopts a definition of the crime of aggression as part
of the Rome Statute. In particular, the United States has a strong
interest in avoiding baseless charges of aggression against its own
officials, soldiers, or allies. This concern would need to be addressed
before I would recommend that the United States become a party to the
Rome Statute. If confirmed, I would be interested in participating in
deliberations both within the executive branch and with members of this
committee and other interested Members of Congress about how the United
States could participate in discussions, without becoming a party, to
advance and protect U.S. interests in this process.
Question No. 21. On March 29, the New York Times reported that a
Spanish court was considering opening a criminal investigation into
actions of former U.S. officials involved in decisions about detention
and interrogation policy during the Bush administration. What U.S.
interests do you believe are implicated by efforts of foreign courts to
assert criminal jurisdiction over sitting or former U.S. officials for
acts undertaken in the course of their official duties? What do you
believe is the appropriate role of the U.S. Government in responding to
such cases?
Answer. There can be no doubt that very important U.S. interests
are implicated by efforts of foreign courts to assert criminal
jurisdiction over sitting or former U.S. officials for acts undertaken
in the course of their official duties. The appropriate role of the
U.S. Government in responding to such cases should be first to
understand the procedural posture of the case, precisely how it arose,
the nature of the allegations raised against the former U.S. Government
officials, the shared aspects, if any, between the foreign prosecution
and any other investigations or inquiries that may be pending or
forthcoming in the United States, and the nature of any defenses that
might be available in such proceedings. If confirmed, I would intend to
follow such cases closely in coordination with the Department of
Justice and other U.S. Government agencies, and to work actively with
our foreign counterparts through legal and diplomatic channels, as
appropriate to the particular case. In so doing, I would seek the
advice of members of this committee and other interested Members of
Congress and keep them fully informed.
Question No. 22. Successive U.S. administrations have from time to
time filed briefs in cases in U.S. courts under the Alien Tort Statute
in which the United States itself was not a party. Under what
circumstances do you believe it is appropriate for the United States to
submit views in such cases? What principles do you believe should
govern any positions to be taken by the United States in such cases?
Answer. It is appropriate for the United States to submit its views
in Alien Tort Claims Act cases when a court asks it to do so. The
United States might also proactively file such a brief when it deems it
necessary, for example, to ensure consistency with the views of the
United States on the content of international law; to guarantee respect
for the separation of powers, including the authority of Congress and
the courts; and to protect important foreign policy interests of the
United States. Key decisions about when to file and what position to
take in any such amicus filings will depend upon multiple factors,
including the facts and circumstances of each case, the importance of
the legal principles at stake and the likelihood that they will be
furthered by such a filing, and the U.S. Government's assessment of
whether adjudication of the Alien Tort claims at issue at that time
would or would not prejudice or impede the conduct of U.S. foreign
policy interests.
Question No. 23. In a 2005 article in the Indiana Law Journal,
discussing the Alien Tort Statute, you wrote that ``Under U.S. law, the
President may not, on his own, violate a jus cogens norm such [as]
those against torture or slavery or genocide. In the event that the
President does, he as well as his subordinates may be sued under the
[Alien Tort Claims Act].''
Is it the position of the Obama administration that the
Alien Tort Statute provides for civil damage remedies against
individual U.S. officials, including the President, in
connection with actions taken in the course of their official
duties?
Answer. My understanding is that the Obama administration has
continued to argue in court that, in cases asserting claims for civil
damages under the Alien Tort Claims Act against U.S. officials in
connection with actions taken in the course of their official duties,
the United States should be substituted for the officials pursuant to
the Westfall Act, 28 U.S.C. 2679, and the case against the United
States should then be governed by the Federal Tort Claims Act. In the
article referred to, I was only pointing out that the Supreme Court has
decided that the Alien Tort Claims Act is potentially available as a
basis for Federal jurisdiction in certain cases dealing with torture
allegations. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004). In
so saying, I did not address many of the other questions raised by such
an action, including the application of the Westfall Act, domestic law
immunities (including Presidential immunity), or other defenses that
might be available to the official defendants.
Question No. 24. On February 28, 2005, President Bush determined
that the United States would comply with the judgment of the
International Court of Justice in the Case Concerning Avena and Other
Mexican Nationals (Mexico v. United States). To achieve such
compliance, President Bush issued a memorandum directing state courts
to review and reconsider the convictions and sentences of the Mexican
nationals at issue in the case, who were not advised in a timely
fashion of their rights under the Vienna Convention on Consular
Relations to have Mexican consular officials notified of their arrests
in the United States on State criminal charges. In March, 2008 the U.S.
Supreme Court held in Medellin v. Texas that President Bush lacked the
authority to compel the States to take such actions.
What further actions, if any, do you believe the Federal
and/or state governments should take to give effect to the
ICJ's Avena judgment? If confirmed as Legal Adviser, what steps
would you recommend that the United States take with respect to
this issue?
Answer. If confirmed as Legal Adviser, I would strive to ensure
that the United States lives up to its international obligation to
comply with decisions of the International Court of Justice (ICJ). With
respect to the Court's decision in Avena, I know that the State
Department is committed to training Federal, State and local officials
on our consular notification and access obligations under the Vienna
Convention on Consular Relations. I understand that the Department's
efforts have been well received by these officials and that the United
States is now doing a substantially better job of complying with these
obligations than in the past. If confirmed, I would intend to review
thoroughly what additional efforts can and should be taken to comply
with the ICJ's judgment.
Question No. 25. Last term in Medellin v. Texas, the Supreme Court
held that the President could not direct State officials to give effect
to treaty obligations of the United States at issue in the case because
the relevant treaties were not self-executing and the President did not
have other sources of authority on which he could rely to direct such
actions.
In light of this decision, what further steps, if any, do
you believe the executive branch and Congress should take in
order to ensure that the United States will be able to fulfill
its obligations under treaties to which it is currently party?
Answer. Upon close analysis, I would not expect the ruling to
create broader problems for overall U.S. treaty compliance with
existing treaties. The Court emphasized that it was not suggesting that
other ``treaties can never afford binding domestic effect to
international tribunal judgments.'' Medellin v. Texas, 128 S.Ct. 1346,
1365 (2008). To the extent that the Court's judgment applies more
broadly to ratified treaty provisions outside of the context of
international dispute resolution, the Court was careful to mention with
approval the direct enforcement of a number of self-executing treaties.
While the executive branch does rely in certain contexts on direct
judicial enforceability of treaty provisions to ensure U.S. compliance,
more frequently, the executive branch seeks implementing legislation or
relies upon existing legislation or executive branch action or
restraint to ensure that U.S. treaty obligations are fulfilled.
While, for these reasons, I do not believe that the Court's
decision in Medellin poses a serious broader threat to future U.S.
treaty compliance, I do think that there is room for improvement during
the treaty ratification process, including, among other things, the
need to provide greater clarity regarding the domestic legal effect of
treaty provisions, as the Senate has recently been doing. Should I be
confirmed as Legal Adviser, I would of course welcome further dialogue
on this issue with this committee and other interested Members of
Congress, in search of ways to continue improvement of that process.
Question No. 26. What steps do you believe the executive branch and
Congress should take during the process of considering future treaties
to which the United States may become party to ensure that the United
States will be able to fulfill obligations it would undertake under
such treaties?
Answer. Should I be confirmed as Legal Adviser, I would support the
recent practice of this committee to include, where appropriate, in
resolutions of advice and consent a joint Executive and Senate view
regarding the self-executing nature of specific provisions of new
treaties, which will undoubtedly give helpful guidance to U.S. courts
that are considering the direct enforceability of a particular treaty
provision. As I noted in my answer to Question 7, I have long
maintained that the President is bound, under U.S. law, to honor the
conditions upon which the Senate has based its consent. I would also
take steps to promote clarity in appropriate documents regarding the
proposed domestic implementation of a treaty, including its domestic
legal status, both before and during the process of seeking advice and
consent.
Question No. 27. During the last Congress, the Bush administration
submitted to the Senate for advice-and-consent treaties on defense
cooperation with the United Kingdom and with Australia. Without any
prior consultation with the Senate, the Bush administration took the
extraordinary step of specifying in the text of each of these treaties
that their provisions would be self-executing in the United States.
Do you believe the Senate has a coequal role with the
executive branch in deciding whether treaties to which the
United States may become party will be treated as self-
executing for the purposes of U.S. law?
Answer. The Senate has played an important historical role in the
determination of the domestic legal effect of treaties, and if
confirmed, I would expect to respect that role by consulting with the
Senate on this and other aspects of proposed treaties. In my writings,
I have long argued that article II of the Constitution mandates that
the Senate and President act as partners in the treaty process. I
believe the executive branch should respect the long historical
tradition of prior executive branch consultation with the Senate
regarding treaties, a tradition that also enables the Senate more
effectively to fulfill its own constitutional function of advice and
consent.
Question No. 28. If confirmed, will you consult with the Senate on
arrangements for implementing obligations the United States would
assume under treaties submitted to the Senate for its advice and
consent?
Answer. Yes. As my writings make clear, I believe the Senate has an
essential role to play in the implementation of treaties. If confirmed,
I would consult fully with the Senate on arrangements for implementing
obligations the United States would assume under treaties submitted to
the Senate for its advice and consent. I would also urge other agencies
with the lead on particular implementing legislation to do the same.
Question No. 29. What legal instruments and rules do you believe
govern the detention of individuals captured in connection with U.S.
military operations in Iraq and Afghanistan?
Answer. As a general matter, the Obama administration is currently
conducting an ongoing policy review of its detention authorities. I
have not participated in that review, and therefore am not in a
position to comment on what recommendations, if any, are being
developed by the detention policy task force that may affect the bases
for and scope of U.S. detentions in armed conflicts and
counterterrorism operations.
Detentions of individuals captured in connection with U.S. military
operations in Iraq and Afghanistan are governed by the law of armed
conflict and in some cases by rules of local law, although the specific
international law rules applicable to a particular detainee will depend
upon both the nature of the conflict at a particular point in time, and
the status of the individual within the context of that conflict. The
legal framework governing the treatment of all detainees in U.S.
custody in Iraq and Afghanistan includes, among other provisions of
law, the baseline treatment rules found in Common Article 3 of the 1949
Geneva Conventions; the Detainee Treatment Act of 2005 and the Federal
Torture Statute; Executive Order 13,491; and various Department of
Defense rules and regulations (including the Army Field Manual).
In Iraq, additional rules applicable to detainees as a matter of
law have changed as the legal framework governing the U.S. presence in
Iraq has changed. U.S. forces currently operate in Iraq pursuant to the
``Agreement Between the United States of America and the Republic of
Iraq On the Withdrawal of United States Forces from Iraq and the
Organization of Their Activities during Their Temporary Presence in
Iraq'' (``Security Agreement''). Article 22 of the Security Agreement
addresses both the disposition of the security detention population in
U.S. custody as of the entry into force of the Agreement, and new
detainees whom U.S. forces may arrest or capture in the course of their
ongoing mission in Iraq.
In Afghanistan, U.S. forces taking part in the International
Security Assistance Force (``ISAF'') are operating in Afghanistan under
(most recently) U.N. Security Council Resolution 1833 (2008), a chapter
VII resolution that authorizes Member States participating in ISAF to
``take all necessary measures to fulfill its mandate,'' which includes
detention. The United States also continues to lead the coalition
called ``Operation Enduring Freedom,'' and to detain individuals under
legal authorities that include the Authorization for Use of Military
Force of September 18, 2001 (Public Law 107-40), as confirmed by the
Supreme Court's decision in Hamdi v. Rumsfeld, 542 U.S. 507, 517-18
(2004). In addition to the legal requirements noted above, the
Department of Defense periodically reviews the status of the detainees
it holds in its custody in Afghanistan. Questions relating to whether
certain detainees at the Bagram Air Field enjoy constitutionally
protected habeas corpus rights are the subject of ongoing litigation.
Question No. 30. What legal instruments and rules do you believe
govern the detention of members of al Qaeda captured by the United
States outside Iraq and Afghanistan in operations undertaken pursuant
to authorization for the use of military force contained in S.J. Res.
23 of September 18, 2001?
Answer. As a general matter, the Obama administration is currently
conducting an ongoing policy review of its detention authorities. I
have not participated in that review, and therefore am not in a
position to comment on what recommendations, if any, are being
developed by the detention policy task force that may affect the bases
for and scope of U.S. detentions in armed conflicts and
counterterrorism operations.
With regard to detentions undertaken pursuant to the Authorization
for Use of Military Force of September 18, 2001 (Public Law 107-40),
the Supreme Court held in Hamdan v. Rumsfeld that Common Article 3 of
the 1949 Geneva Conventions governs the treatment of al Qaeda
detainees, 548 U.S. 557, 629-31 (2006). In addition to baseline
treatment rules found in Common Article 3, the legal framework
governing the treatment of al Qaeda detainees in U.S. custody includes,
among other provisions of law, the Detainee Treatment Act of 2005 and
the Federal Torture Statute; Executive Order 13,491; and various
Department of Defense rules and regulations (including the Army Field
Manual).
With regard to detainees held at the Guantanamo Bay Detention Camp,
Executive Order 13,492 created a review process whereby participating
agencies are required to consolidate information pertaining to
Guantanamo detainees and, through a case-by-case status review, to
determine whether they can be released or transferred, whether they can
be prosecuted, or whether to select another lawful option with respect
to their disposition. Executive Order 13,492 additionally ordered the
Secretary of Defense to undertake a 30-day review of the conditions of
confinement at Guantanamo Bay Detention Camp to ensure their compliance
with all applicable laws, including Common Article 3 of the 1949 Geneva
Conventions, and the Department of Defense has completed that review
and made it public. Beyond these processes, the Supreme Court has
confirmed in Boumediene v. Bush that Guantanamo detainees have a
constitutionally protected right to seek the writ of habeas corpus in
U.S. courts. Detainees held at the Bagram Air Field are currently being
governed by the legal framework described in my response to Question
29. Questions relating to whether certain detainees at Bagram Air Field
enjoy constitutionally protected habeas corpus rights are the subject
of ongoing litigation.
Question No. 31. In a 2007 article in the Cornell International Law
Journal, you urged the United States to renounce the practice of
extraordinary rendition. Under what circumstances, if any, do you
believe the United States has the authority to transfer an individual
to the custody of foreign law enforcement authorities in the absence of
an extradition treaty?
Answer. Under certain circumstances, as some senior administration
officials have said, transfers of individuals outside extradition
channels may be appropriate and lawful--such as when an individual is
subject to deportation proceedings, with any necessary diplomatic
assurances, or is transferred with the consent of the sending state to
face legal process in the receiving state.
In the article cited, when referring to the practice of
``extraordinary rendition,'' I was referring in particular to rendition
of suspects to conditions of torture. I do not believe that rendition
is lawful or permissible where the goal of the rendition is to transfer
an individual to a foreign government so that he can be tortured.
President Obama's Executive Order 13,491 on ``Ensuring Lawful
Interrogations'' created a task force specifically to examine the U.S.
practice of transferring individuals to foreign nations. One goal of
this task force is to ensure that such practices comply with the
domestic laws, international obligations, and policies of the United
States and do not result in the transfer of individuals to other
nations to face torture. I understand that the State Department and its
attorneys are playing an important role in that task force.
Question No. 32. In a 2007 comment in Michael Doyle's book
``Striking First,'' you discuss international law rules governing the
use of force. You propose ``that we move to a per se ban on unilateral
anticipatory warmaking, with any post hoc justification of such
anticipatory actions being asserted as a defense and not in the form of
prior permission.''
Under what circumstances, if any, do you believe a state may
legitimately use force in response to threats that have not
resulted in an attack on the state?
Answer. I agree with the longstanding U.S. Government view that a
state may use military force to defend itself if an armed attack
occurs, or in the event that such an attack is imminent. Any action
taken in response to such an imminent threat must be necessary and
proportional; as Daniel Webster said in 1837 in his famous statement in
the Caroline case, ``the act justified by the necessity of self-
defense, must be limited by that necessity, and kept clearly within
it.'' Determining whether the traditional tests of imminence,
necessity, and proportionality are satisfied in any particular case can
present exceedingly difficult questions that would need to be evaluated
in the context of the particular circumstances existing at the time and
the precise nature of the threat being faced. In the comment quoted, I
was observing the dangers of a doctrine that would reach well beyond
these established principles of self-defense to provide advance
authority to an individual state such as North Korea to engage in
``unilateral anticipatory warmaking'' based on its own subjective
balancing of four factors (lethality, likelihood, legitimacy, and
legality).
Question No. 33. A 2004 report by a high-level panel convened by
then-U.N. Secretary General Kofi Annan stated that ``a threatened
State, according to long established international law, can take
military action as long as the threatened attack is imminent, no other
means would deflect it and the action is proportionate.'' Do you agree
with this statement?
Answer. Yes. As noted above, the quoted statement follows ``long
established international law.''
Question Nos. 34 and 35. In 2005, the United Nations World Summit
endorsed the concept of a responsibility of states to protect
populations from genocide, war crimes, ethnic cleansing, and crimes
against humanity. The concept as endorsed by the United Nations
provides that where states manifestly fail to protect their populations
from such atrocities, the international community, acting through the
U.N. Security Council, is prepared to take collective action in a
timely and effective manner to provide such protection. Some
commentators have asserted that this doctrine provides a basis on which
states, individually or collectively, may use force to protect
populations in other states from atrocities.
Do you believe that international law recognizes a right of
individual states to use force without U.N. Security Council
authorization to protect populations from atrocities?
If you believe in such a right, what principles govern such
interventions? What impact would such a doctrine have on the
general prohibition in international law against the use of
force between states except in cases of self-defense?
Answer. As in any case where the use of force is being
contemplated, this situation presents some of the most difficult and
fact-specific questions with which international law has had to deal.
As U.N. Secretary General Kofi Annan said in 1999:
To those for whom the greatest threat to the future of
international order is the use of force in the absence of a
Security Council mandate, one might ask . . . in the context of
Rwanda: If, in those dark days and hours leading up to the
genocide, a coalition of States had been prepared to act in
defen[s]e of the Tutsi population, but did not receive prompt
Council authorization, should such a coalition have stood aside
and allowed the horror to unfold?
Address to General Assembly, Sept. 20, 1999, http://www.un.org/News/
ossg/sg/stories/statments_search_full.asp?statID=28.
In any such case, I believe it would be important for the Legal
Adviser to examine the case presented with extreme care and
thoroughness, taking into account all relevant factors and
circumstances, before advising the Secretary of State and the President
on how to proceed. In addition to international legal considerations,
it would also be important to build as broad support as possible among
the American people and the Congress for any decision to use force in
such circumstances, including working as closely as possible with the
members of this committee.
Question Nos. 36 and 37. On January 26, U.S. Permanent
Representative to the United Nations Susan Rice stated that the
administration remains ``very deeply concerned about the ongoing
genocide in Darfur.'' Similarly on March 23, Acting State Department
Spokesman Robert Wood stated ``certainly what's going on in Darfur is
genocide.'' Other observers have declined to characterize past and
present events in Darfur as constituting genocide.
Do you believe that events currently taking place in Darfur
meet the legal definition of genocide contained in article 2 of
the Convention on the Prevention and Punishment of the Crime of
Genocide? Please indicate the reasons for your conclusion.
When then-Secretary of State Colin Powell announced the Bush
administration's position in September 2004 that events then
occurring in Darfur met the legal definition of genocide, he
based his conclusion on a contemporaneous study conducted by
the State Department documenting atrocities in Darfur,
including field interviews with over 1,100 Darfur refugees. Has
the Obama administration conducted a similar study of events
currently taking place in Darfur? If not, does the
administration intend to conduct such a study to inform future
judgments it may make about the legal character of events in
Darfur?
Answer. As reflected in Secretary of State Colin Powell's September
9, 2004, statement before the Senate Foreign Relations Committee, the
Department of State's comprehensive review of the situation in Darfur
provided the basis for the conclusion that the events on the ground met
the requirements for genocide under the Convention on the Prevention
and Punishment of the Crime of Genocide. That statement appeared to me
to be well-reasoned, as Secretary Powell pointed to, among other
things, a consistent and widespread pattern of killings, rapes, burning
of villages and other acts that indicated the specific intent to
destroy in whole or in part non-Arab groups in Darfur. I am not aware
of what recent information may be available within the U.S. Government
on this subject or what the Department's plans might be for conducting
a study on the subject. However, if confirmed, I would work closely
with Secretary Clinton, others at the State Department, and the members
of this committee to determine how best to address the situation in
Darfur.
Question No. 38. Some have criticized the U.N. Security Council's
targeted sanctions regime for failing to provide sufficient due process
rights for individuals who are targeted for sanctions. In September,
the European Court of Justice in the Kadi case invalidated European
Community regulations implementing UNSC sanctions against al Qaeda and
the Taliban as applied to two individuals on the ground that the
process for adopting the sanctions failed to respect the individuals'
fundamental due process rights.
Do you believe the U.N. Security Council's existing
sanctions regimes fail to provide adequate protections for the
due process rights of targeted individuals?
Answer. Targeted sanctions are an important and effective tool for
the Security Council. They are a valuable alternative to the use of
force and to comprehensive economic sanctions that affect entire
populations. At the same time, I understand why concerns have been
raised that targeted sanctions operate unfairly and can be imposed on
the wrong people. It is important that the sanctions process not only
work, but also be perceived to work in a way that is fundamentally
fair. With the support of the United States, the Security Council has
taken recent steps to enhance fairness and transparency in the
implementation of targeted sanctions. Additional steps to address due
process concerns may well be necessary, and if confirmed I would devote
considerable attention to working with our partner states to identify
and implement those steps.
Question No. 39. If confirmed as Legal Adviser, what steps would
you recommend the United States take to respond to such challenges and
to ensure that the Security Council retains the authority to implement
effective targeted sanctions regimes?
Answer. The United States has a strong interest in ensuring that
targeted sanctions, which can be effective foreign policy tools, are
imposed and implemented by the Security Council in a manner that is as
fair and transparent as possible. For this reason, and because of our
own fundamental sense of fairness and due process, I believe that the
United States should continue to work with partner states to identify
further improvements that could be made to United Nations targeted
sanctions regimes.
Question No. 40. In 2007, the U.N. General Assembly failed to elect
a U.S. national to the International Law Commission for the first time
since the ILC's inception. The next elections to the ILC occur in 2011.
What priority do you attach to electing a U.S. national to the ILC in
these elections? If confirmed as Legal Adviser, what steps would you
plan to take to ensure the election of a U.S. national to the ILC?
Answer. Since its inception in 1947 until the last election in
2007, the International Law Commission (ILC) had always had a U.S.
member. Although the members of the ILC serve in their personal
capacities, not as representatives of their countries of nationality, I
believe that the presence of a U.S. member is good both for the United
States, in helping to ensure that U.S. perspectives are taken into
account as the ILC undertakes its work, and for the Commission itself,
which benefits from the perspective that a U.S. member can bring to
bear. I was disappointed that the U.S. candidate in the last ILC
election, Professor Michael Matheson, who had served with distinction
on the Commission for several years, was not elected. I believe that
electing a U.S. national to the ILC in 2011 should be an important
priority for the United States.
If confirmed as Legal Adviser, I would seek to identify the
strongest possible U.S. candidate, and would welcome counsel from
interested members of this committee and other U.S. communities
knowledgeable about international law. I would then work within the
State Department to make sure that efforts to support the election of
the U.S. candidate are treated as a high priority. I think it could be
particularly useful to work within the Western European and Others
Group (WEOG), including in the early stages, to assure support within
the group for the U.S. candidate, and to impress upon others the
benefits to all concerned of once again having a U.S. member of the
Commission.
Question No. 41. On April 13, U.S. Permanent Representative to the
United Nations Susan Rice, in discussing the Security Council's
Presidential Statement on North Korea, stated ``First of all, the
United States views Presidential statements, broadly speaking, as
binding.'' Do you believe that Presidential statements of the U.N.
Security Council generally create legally binding obligations on U.N.
Member States under the U.N. Charter?
Answer. As a nominee, I have not participated in discussions around
this particular matter. As a general matter, however, I would note that
under article 25 of the United Nations Charter, U.N. Member States are
legally required ``to accept and carry out the decisions of the
Security Council in accordance with the [U.N. Charter].'' There is
nothing in the Charter that specifies the form in which the Council's
decisions must be recorded.
Question 42. In response to Question No. 1 of my prehearing
questions for the record, you declined to indicate whether you would
recommend any changes in the historical U.S. position that the
International Covenant on Civil and Political rights does not apply to
U.S. actions outside the territory of the United States. While you
indicated that it would be premature to suggest what interpretation you
would recommend until you have had the opportunity to review fully the
U.S. Government's rationale for its position, you are likely generally
familiar with the issue from your prior service as Assistant Secretary
of State for Democracy, Human Rights, and Labor.
In response to Question No. 2 of my prehearing questions for the
record about when it might be appropriate for the executive branch to
change its interpretation of a treaty, you indicated that, ``In all
cases, I would apply a presumption that an existing interpretation of
the executive branch should stand, unless a considered examination of
the text, structure, legislative or negotiating history, purpose and
practice under the treaty or statute firmly convinced me that a change
to the prior interpretation was warranted.''
In light of this standard and your general familiarity with
the issue, are you aware of any present circumstances that you
believe would warrant a reexamination of the historical U.S.
position that the International Covenant on Civil and Political
rights does not apply to U.S. actions outside the territory of
the United States? If so, please indicate what circumstances
you believe would warrant such a reexamination.
Answer. It is true that I am generally familiar with the issue
discussed in this question, including the views expressed by former
Legal Advisers Conrad Harper and John Bellinger, both from my academic
work and from my prior service as Assistant Secretary of State for
Democracy, Human Rights, and Labor. That said, I have not yet had the
occasion to conduct the kind of considered examination of the text,
structure, negotiating history, purpose and practice under the treaty
that I believe a legal adviser should give to an issue before reaching
a conclusion on a question of this importance, nor have I had the
opportunity to review fully the U.S. Government's rationale for its
existing position. For those reasons, I believe that it would be
premature to suggest what interpretation I would recommend. If
confirmed, I would seek to review thoroughly all of the past legal
memoranda by the Legal Adviser's Office and other government law
offices on this issue, to examine the various fact patterns to which
this interpretation might apply, and to consult with policymakers,
other government attorneys, and members of this committee and other
interested Members of Congress on this question.
Question No. 43. If confirmed, would you intend to conduct any such
reexamination of the U.S. interpretation of the ICCPR?
Answer. For a number of reasons, I believe it is advisable for the
Legal Adviser's Office to avoid giving its legal advice in the
abstract, but rather, to provide that advice when asked a real-life
question, based on a concrete set of facts and an anticipated policy
choice. If I were confirmed, and asked to apply the existing U.S.
interpretation of the ICCPR, I would determine at that time whether
such a decision posed an occasion to conduct the kind of considered
legal examination discussed in my prior answer.
Question No. 44. In Question No. 21 of my prehearing questions for
the record, I asked what U.S. interests you believe are implicated by
efforts of foreign courts to assert criminal jurisdiction over sitting
or former U.S. officials for acts undertaken in the course of their
official duties. In your response to this portion of the question, you
indicated that ``There can be no doubt that very important U.S.
interests are implicated by such efforts,'' but you did not specify
what you believe these interests to be. Please indicate what U.S.
interests you believe are implicated by efforts of foreign courts to
assert criminal jurisdiction over sitting or former U.S. officials for
acts undertaken in the course of their official duties.
Answer. As I suggested in some of my answers to your prehearing
questions, prosecutions against U.S. officials in foreign tribunals for
acts undertaken in their official duties raise a number of issues that
are of very serious concern to U.S. interests. Of course, the United
States has a vital and pressing interest not just in enforcing its own
laws, but also in protecting U.S. officials and soldiers from baseless
or unwarranted charges and prosecutions, and from the chilling effect
that possible foreign charges and prosecutions might cast over daily
decisionmaking. Such actions may implicate doctrines relating to
immunity, overly expansive assertions of foreign criminal jurisdiction,
and efforts by political opponents of particular U.S. policies to seek
leverage by invoking foreign jurisdictional provisions to initiate
criminal complaints against U.S. officials. If confirmed, I would
become a U.S. Government official working closely with other U.S.
officials who must daily make difficult and sensitive decisions. I,
therefore, intend to follow such cases very closely, in coordination
with the Department of Justice and other U.S. agencies, and to work
with our foreign counterparts to determine how best to deal with these
cases.
Question No. 45. You have raised questions about the legality under
international law of the 2003 invasion of Iraq, largely on the ground
that the U.N. Security Council did not pass a resolution specifically
authorizing the use of force in advance. In responses to Question No.
34 and No. 35 of my prehearing questions for the record on the separate
issue of whether states may use force without Security Council
authorization to protect populations from atrocities, you appear to
suggest that there may be some appropriate scope for such action.
Against this background, please discuss your views on when
states may use force without specific prior authorization from
the U.N. Security Council. Are the considerations different
when states seek to use force to address threats such as
terrorism or weapons of mass destruction than they are when
force is proposed as a means to address wide-scale atrocities?
Answer. Under article 2(4) of the Charter of the United Nations,
all U.N. Member States have agreed to refrain from the threat or use of
force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the purposes of the
United Nations. However under article 51 states are permitted to use
force without prior Security Council authorization when exercising
their inherent right of individual or collective self-defense if an
armed attack occurs, including to use force to protect their own
nationals. As I noted in my answer to Senator Lugar's prehearing
Question No. 33, I agree with the 2004 report by a high-level panel
convened by then-U.N. Secretary General Kofi Annan that states that ``a
threatened state, according to long-established international law, can
take military action as long as the threatened attack is imminent, no
other means would deflect it and the action is proportionate.'' Cases
involving the possible use of force as a means to address widespread
atrocities present a different set of issues insofar as the rationale
for using force in such cases is not based on the right of self-
defense. There are, in fact, widely differing views regarding whether
using force for humanitarian purposes is permissible under
international law.
As I state in my answer to a question from Senator DeMint, I
believe that the U.S. use of force in Kosovo was both lawful and the
right thing to have done. The Kosovo intervention was expressly
premised on humanitarian intervention grounds and had broad
multilateral support. There was no reasonable alternative to the use of
force. As Assistant Secretary of State for Democracy, Human Rights and
Labor during that period, I read extensive reports indicating that
forces from the Federal Republic of Yugoslavia and Servia were engaged
in massive and sustained repression against the Kosovar Albanian
population, they had acted in flagrant contravention of resolutions
that the U.N. Security Council had adopted under chapter VII, and a
humanitarian catastrophe was unfolding that threatened not only the
people of Kosovo but the security and stability of the entire region.
The intervention was supported by a multilateral NATO decision, and
significantly, shortly after NATO commenced military operations, a
resolution introduced in the Security Council would have called NATO's
use of force unlawful, but that resolution was soundly defeated by a 12
to 3 vote.
If confirmed as Legal Adviser, I would similarly want to look
carefully at the specific facts and circumstances of any particular
proposed use of military force involving such humanitarian
considerations before rendering a legal opinion regarding its
permissibility under international law.
Responses to Additional Questions Submitted for the Record
to Harold Koh by Senator DeMint
Transnational Law
Question. In your article Why Transnational Law Matters (24
Penn.State International Law Review 745-753 (2006), you describe the
difference between nationalists and transnationalists, specifically
saying that:
The transnationalists view domestic courts as having a
critical role to play in domesticating international law into
US law, while nationalists argue instead that only the
political branches can internalize international law. The
transnationalists believe that US courts can and should use
their interpretive powers to promote the development of a
global legal system, while the nationalists tend to claim that
the US courts should limit their attention to the development
of a national system.' (p 749).
Which faction do you place yourself in?
Answer. The purpose of this article was to argue, as a legal
educator, that the world is growing increasingly interdependent; that
transnational law is gaining public visibility; and that law schools
therefore need to tackle the difficult job of making sure that 21st
century law students are trained and knowledgeable about international
law and policy. In the passage quoted, I explained that ``the Supreme
Court has now divided into transnationalist and nationalist factions,''
with the terms ``transnationalist'' and ``nationalist'' describing
different judicial philosophies, and with several members of the Court
in each camp. As someone who is not a judge and who is not being
nominated to a judicial position, [ would not presume to place myself
into either of these two judicial camps. I do believe, as I have stated
in my writings, that the former position, which has strong historical
roots in the Framers' vision of the Constitution, is more persuasive.
As J noted in my hearing and in response to Senator Lugar's Pre-Hearing
Question 10, if confirmed as Legal Adviser, [would see the primary
value of transnational legal process as a means to persuade other
nations to obey international law.
Question. You have written 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?
Answer. The question of whether the Legal Adviser should support
the incorporation of international legal norms in a particular case
will depend on the legal issues and facts of the case as well as a
range of other factors, many of which I discussed in the specific
context of the Alien Tort Claims Act in my answer to Senator Lugar's
Pre-Hearing Question #22. The factors include an assessment of whether
adjudication of the claims at issue at that time would protect or
impede the conduct of U.S. foreign policy interests, and whether the
filing would be necessary to ensure consistency with the U.S.'s views
on the content of international law and guarantee respect for the
separation of powers, including the authority of Congress and the
courts.
Question. I'm concerned by the use of so-called ``human rights''
treaties to bypass the ordinary processes of representative government
on matters of social and economic policy. You've been an ardent
champion of this use of treaties.
As a government that was founded on the consent of the governed,
how do you see the voice of the American people in the process of
``domesticating'' international law?
Do you see any limit in law on the use of treaties to adopt
domestic policies?
Answer. As I have explained in my writings, the American people,
through our Constitution and elected representatives, can determine
whether and when international law applies in the United States in a
number of ways. To provide only a few examples, a Congress elected by
the people can ratify a treaty or incorporate international law into a
statute; a President elected by the people can incorporate or exclude
international law from domestic law in an executive order; and a judge
who has been appointed by elected officials and confirmed by elected
officials can interpret a treaty or international law when required to
do so by statute. Also, if Congress objects to the way in which the
courts have applied international law, Congress is always free to act.
My view is that the domestic impact of treaties can be limited in a
variety of circumstances, including when such treaties are non-self-
executing, or when giving domestic effect to the treaty would violate
the constitutional separation of powers, the Bill of Rights
(particularly the Tenth Amendment), or another provision of the U.S.
Constitution.
Question. This committee may consider three important treaties in
the near future: The UN Convention on the Law of the Sea, the
Convention for the Elimination of Discrimination Against Women, and the
Convention on the Rights of the Child.
Do you believe it is legal and appropriate for the U.S. government
to attach statements of ``non-self-execution'' to these treaties such
as those that were attached to the International Convention on Civil
and Political Rights?
What do you believe are the legal limits on the Senate's ability to
condition its consent to a treaty on a declaration that the treaty is
non self-executing?
Answer. Each provision of a treaty must be considered on a case-by-
case basis when it comes to the issue of domestic legal effect. For
example, in the case of the Law of the Sea Convention, the Committee's
proposed resolution of advice and consent (which has been approved
twice by this Committee) provides that the Convention is not self-
executing, except for certain provisions regarding privileges and
immunities. I would consider it legal and appropriate for the United
States to accede to the Convention on that basis. At such time as this
Committee and the Senate might choose to consider other treaties, such
as the Convention for the Elimination of Discrimination Against Women
or the Convention on the Rights of the Child, I would, if confirmed,
expect to consult with the Senate regarding the domestic legal effect
of those treaties' provisions. As I noted in my oral testimony and in
my answers to Senator Lugar's prehearing Questions for the Record 6 and
27, in my writings, I have long argued that Article II of the
Constitution mandates that the President and the Senate act as partners
in the treaty process. If confirmed, I would respect the Senate's role
in determining the domestic effect of treaties by consulting with the
Senate on this and other aspects of proposed treaties.
Question. In a Supreme Court brief on the Medellin case, you argued
a treaty should be regarded as self-executing solely because the State
Department legal adviser testified that it was self-executing. However,
the Supreme Court instead ruled that a treaty is not self-executing
unless ``the treaty itself conveys an intention that it be 'self-
executing' and is ratified on those terms.''
If you are confirmed as legal adviser, would you take the position
that a treaty is self-executing when the actual text of the treaty
doesn't make that clear?
Answer. Under our Constitution, the Supreme Court has the final
duty to interpret a particular treaty and to say what it requires as a
matter of domestic law, and I would, of course, uphold the Supreme
Court's decision in the Medellin case and apply its holding to other
treaties. As noted in the majority opinion, the Court's approach does
not ``require that a treaty provide for self-execution in so many
talismanic words .... Our cases simply require courts to decide whether
a treaty's terms reflect a determination by the President who
negotiated it and the Senate that confirmed it that the treaty has
domestic effect.'' Medellin v. Texas, 128 S. Ct. 1346, 1366 (2008).
Convention for the Elimination of Discrimination Against Women (CEDAW)
Question. In 2002, you testified before this committee that it's
``flatly untrue'' that ``CEDAW supports abortion rights'' and you
stated that ``several countries in which abortion is illegal--among
them Ireland, Rwanda, and Burkina Faso have ratified CEDAW.''
Were you aware that the CEDAW committee issued several reports
opposing restrictions on abortion, before the date of your testimony?
Further, were you aware that one of those reports expressed
concerns about the restrictive abortion laws of Ireland and--one of the
countries whose ratification of CEDAW you cited as support for your
claim that CEDAW doesn't support abortion rights?
In your testimony, you also stated that it was false that CEDAW
would require decriminalization of prostitution.
Were you aware that the CEDAW committee report on prostitution
included its recommendation that China decriminalize prostitution?
In light of these reports do you still stand by the testimony that
you offered to the committee in 2002?
Answer. Yes. When I testified as a private citizen regarding my
understanding of the CEDAW treaty in 2002, I provided my views based on
my best reading of the treaty in keeping with longstanding canons of
treaty interpretation under international law. Article 17 of the
Convention states that the Committee's purpose is to consider ``the
progress made in the implementation of the . . . Convention'' and
Article 21 provides that the Committee ``may make suggestions and
general recommendations . . . ``Neither of these provisions, nor any
other provision of the Convention, vests the CEDAW Committee with
legally binding authority over a State Party.
Over the years, I have read many of the CEDAW Committee reports,
but I have never considered the views of the CEDAW Committee--as
opposed to the text of the treaty--which is the only legal instrument
that the United States might ratify-to be legaJly binding on the States
parties, or upon other States who might eventuaJly ratify the treaty.
The Committee was and is free to offer its interpretation of particular
issues as applied to particular countries, just as the U.S. Government
would be free to disagree with the CEDAW Committee were the United
States to become party to the treaty and to reach different conclusions
on its meaning and scope. Accordingly, I would not alter any of my
conclusions in the 2002 testimony simply because they might differ from
the recommendations or views of the CEDAW Committee.
U.S. Use of Force
Question. One of 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?
Answer. Mr. Taft was an outstanding State Department Legal Adviser,
whom I hold in the highest regard. Mr. Taft's view, with which I am in
agreement, was that the question whether the Iraq invasion conformed
with international law turned on the proper interpretation of the
relevant resolutions that had been adopted by the UN Security Council
in the dozen years before the invasion, leading ultimately to the
adoption of UN Security Council resolution 1441 in November 2002.
However, as I indicated in my response to Senator Isakson's question in
the Committee's hearing on April 28, in looking closely at those
resolutions, my conclusion was that their wording did not provide the
necessary support under international law. Thus, while Mr. Taft and I
approached our analysis with a similar methodology, we ultimately came
to different legal conclusions. This was an issue about which
reasonable lawyers could differ, and which in fact generated a
significant amount of disagreement, within both the United States and
foreign legal communities. I believe that one consequence of this lack
of consensus as to whether the resolutions provided the necessary
support was that it hindered U.S. efforts to attract as broad political
support for our military actions in Iraq as we would have liked. We
have since needed the help of the United Nations and the international
community to rebuild Iraq after the war, and in doing so, we have had
to overcome the absence of the broadest possible level of initial
support for the 2003 military action.
Question. In your testimony, you claim that the war in Iraq
violated international law but not domestic law. However, you have also
made the statement that ``international law is federal law.'' If the
war in Iraq violated international law, then, didn't it also violate
domestic law?
Answer.No. As I indicated in my testimony, the 2003 war in Iraq was
authorized by a joint resolution of Congress. I have never argued that
any violation of international law automatically constitutes a
violation of U.S. federal law. Rather, the statement referenced came
from an article in which I argued that the proper reading of existing
U.S. judicial doctrine is that federal courts retain legitimate
authority selectively to incorporate bona fide rules of customary
international law into federal common law on a case-by-case basis.
Question. 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.''
Including missile attacks in Yemen and Pakistan. Do you believe these
attacks are lawful under U.S. and international law?
Answer. I am not privy to all of the facts regarding the situations
mentioned in the question, and therefore I am not in a position to
express a firm legal opinion on these particular actions. More
generally, however, I note that in the Authorization for Use of
Military Force (AUMF) of September 18,2001 (public Law 107-40),
Congress authorized the President to ``use all necessary and
appropriate force'' against al Qaeda, the Taliban, and associated
forces. The language of the AUMF was not geographically limited. As
stated in the October 2001 letter from the United States notifying the
Security Council pursuant to Article 51 of the UN Charter: ``We may
find that our self-defense requires further actions with respect to
other organizations and other States.'' In any case, as I have noted in
my answer to Senator Lugar's prehearing Question 32, whenever the
United States uses force in self-defense, it must do so in a manner
that is consistent with the principles of necessity and
proportionality.
Question. Do you believe the United States acted lawfully when it
attacked Serbia during the 1999 Kosovo conflict despite the lack of any
Congressional authorization or authorization from the United Nations?
Answer. I fully supported the 1999 NA TO military campaign. I am of
course aware that some have criticized the decision to use force in
that case, but I continue to believe today that it was both lawful and
the right thing to have done. As Kofi Annan said in 1999: ``To those
for whom the greatest threat to the future of international order is
the use of force in the absence of a Security Council mandate, one
might ask . . . in the context of Rwanda: If, in those dark days and
hours leading up to the genocide, a coalition of States had been
prepared to act in defense of the Tutsi population, but did not receive
prompt Security Council authorization, should such a coalition have
stood aside and allowed the horror to unfold. The Kosovo intervention
was expressly premised on humanitarian intervention grounds and had
broad multilateral support. In the specific case of Kosovo, there was
no reasonable alternative to the use of force. As Assistant Secretary
of State for Democracy, Human Rights and Labor during that period, I
read extensive reports indicating that forces from the Federal Republic
of Yugoslavia and Serbia were engaged in massive and sustained
repression against the Kosovar Albanian population, they had acted in
flagrant contravention of resolutions that the UN Security Council had
adopted under Chapter VII, and a humanitarian catastrophe was unfolding
that threatened not only the people of Kosovo but the security and
stability of the entire region. The intervention was supported by a
multilateral NATO decision. In addition, shortly after NATO commenced
military operations, a resolution was introduced in the Security
Council that would have called NATO's use of force unlawful, but that
resolution was soundly defeated by a 12 to 3 vote.
Legal Protections
Question. Do you support Senate Ratification of the International
Criminal Court?
Answer. In my academic writings, I have argued that the United
States should pursue a strategy of ``constructive engagement'' with the
International Criminal Court--that is, work with the Court to make its
functioning more fair. As I explained in my answers to Senator Lugar's
Pre-Hearing Questions, a recent bipartisan task force of the American
Society of International Law has similarly recommended that the United
States announce a policy of ``positive engagement'' with the
International Criminal Court. If confirmed, I would wish to engage in
extensive discussion with officials across the U.S. Government,
including military commanders and experts and members of this
Committee, before I would deem it advisable to recommend that the
Secretary of State and the President that the United States take any
specific step with regard to the international Criminal Court. Among
other things, the U. S. Government has long expressed concern about the
authority of the ICC Prosecutor under the Rome Statute to initiate
investigations of U.S. soldiers and government officials stationed
around the world. Particularly because the United States has the
largest foreign military presence in the world, this is an important
issue on which we would need further discussion and clarification
within the government before taking any particular action regarding the
International Criminal Court.
Question. Article 17 of the International Criminal Court states
that the Court will not pursue an investigation or prosecution when 1)
a nation is investigating or prosecuting a case or 2) an investigation
has been completed.
Given President Obama's statements not to pursue legal action
against CIA agents who may have participated in torture, do you believe
this leaves them open for potential prosecution by the International
Criminal Court?
Answer. No. The United States, in both the Clinton and the Bush
Administration, has made clear its view that the International Criminal
Court should not have jurisdiction over U.S. personnel under a treaty
to which the United States is not a party.
Question. To the extent that U.S. forces detain members of al
Qaeda, in Guantanamo or Afghanistan, do you believe these people are
protected by international human rights law or by the laws of armed
conflict?
Answer. The laws of armed conflict and international human rights
law have at their roots certain overlapping principles. The specific
application of each of these bodies of law to a particular set of facts
raises a range of complex issues, many of which are the subject of
ongoing litigation or the topic of one of the ongoing Executive Branch
task forces, and thus would not be prudent for me to address them in
this setting.
As a general matter, there will be circumstances in which the two
bodies of law are mutually exclusive, as in peacetime (when the law of
war is inapplicable) and circumstances in which they may not be (as in
a non-international armed conflict occurring in a state's own
territory). The question is particularly complicated as to many of
these detainees, whose specific situation may not be squarely addressed
by existing bodies of law. It is, however, clear from the Supreme
Court's decision in Hamdan v. Rumsfeld, that detention of alleged Al
Qaeda forces at Guantanamo is governed by Common Article 3 of the 1949
Geneva Conventions, which mandates that such detainees be afforded
certain specified baseline humane treatment protections. More
generally, however, the U.S. government has noted in briefs arguing
that its detention authority as to detainees at Guantanamo is premised
on the Authorization for the Use of Military Force ``as informed by the
laws of war,'' but has also noted that the laws of war are ``less well-
codified with respect to our current, novel type of armed conflict
against armed groups such as al Qaeda and the Taliban.'' If confirmed,
I would look forward to consulting with members of this Committee and
working on these Issues.
Question. 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?
Answer. Prosecutions against U.S. officials in foreign tribunals
for acts undertaken in their official duties raise a number of issues
that are of very serious concern to U.S. interests. As a nominee, I
have not been involved in any interagency discussions that may have
occurred regarding the Spanish cases. I do have deep faith, however, in
the United States' vigorous democratic tradition, independent
judiciary, and well established commitment to the rule of law. I
therefore believe that the United States, as the nation with the
predominant interest in this matter, is in the best position to decide
whether to take any action against former U.S. officials for allegedly
improper or illegal conduct that occurred in course of their official
duties. If confirmed, I would work with my colleagues at the Department
of Justice and other agencies to determine how best to deal with such
ongoing foreign cases.
Alien Tort Statute Litigation
Question. You have clearly expressed the view that U.S. companies
may be sued in U.S. courts for violations of international human rights
laws for conducting business with governments that are later deemed to
have committed ham against their own citizens under the Alien Tort
Statute (ATS).
Do you believe it is appropriate to sue companies retroactively for
conduct that U.S. laws did not prohibit at the time of their
activities? Is it not the role of Congress and the President to
determine when sanctions on businesses and relations with foreign
governments should be placed?
Aren't lawsuits like the South African apartheid case, currently
pending in the Southern District of New York, fundamentally unfair
because they are brought after activities occur and when there is no
actual controlling legal guidance on when a company must refrain from
conducting business or selling a product to a particular government?
In light of your public views, would you consider recusing yourself
from cases regarding the ATS?
Answer. A defendant in an Alien Tort Claims suit can only be held
liable if, at the time of the alleged misconduct, the tort was
committed in violation of a well established international law norm. In
addition, the Alien Tort Statute itself is U.S., not international law;
and while international law provides a frame of reference for limiting
the category of tort claims over which the courts have Alien Tort
Statute jurisdiction, the decision to allow claims of this nature to be
raised in federal courts was made by U.S. statute, not imposed by any
external legal system. The specific question about the South African
apartheid case relates to a matter of pending litigation in which the
United States has participated on which I do not believe it would be
prudent for me to comment.
If confirmed as Legal Adviser, I would uphold the highest ethical
standards, and avoid not only actual impropriety, but also endeavor to
avoid even the appearance of impropriety. I have indicated my general
plans regarding recusal in my Ethics Undertaking Letter of February
18,2009 to James H. Thessin, Deputy Legal Adviser and Designated Agency
Ethics Official of the U.S. Department of State, and in my answers to
Senator Lugar's prehearing Counsel Questions 2-4. As an academic who
has written and spoken widely, I have expressed my public views on a
broad array of legal issues, and nominees could not serve effectively
were they to recuse themselves on every matter raising an issue on
which they had previously expressed an opinion. If confirmed, I would
make specific recusal decisions when presented with a concrete set of
facts, after full consultation with State Department ethics officials,
and with the goal of upholding the highest ethical standards.
The Supreme Court and the Constitution
Question. When you write that the Supreme Court ``must play a key
role in coordinating U.S. domestic constitutional rules with rules of
foreign and international'' (Koh, International Law as Part of Our Law,
98 Am. J. Int'1. L. 43, 53-54 (2004)), isn't it true that the only way
for the Supreme Court to do that ``coordinating'' is by adjusting its
interpretations of the Constitution to more closely comport with rules
of foreign and international law?
Do you agree that the Supreme Court cannot alter the rules of
foreign and international law?
This means that the only way the Supreme Court can ``coordinate''
is by changing its interpretations of the Constitution.
Answer. The Supreme Court can affect rules of foreign and
international law through its rulings in a number of ways. The manner
in which the U.S. Supreme Court construes a treaty to which the United
States is a party can influence the way in which other countries or
foreign or international courts choose to construe the same treaty.
Likewise, the Supreme Court's interpretation of customary international
law can affect how foreign courts choose to construe the same rules.
And in the same way as a federal court sitting in diversity
jurisdiction may construe the law of the state in which it sits in a
way that proves instructive to the highest court of that state, the
U.S. Supreme Court can construe a principle of international law in a
way that influences the way a foreign court chooses to construe that
same principle.
Likewise, the U.S. Supreme Court need not change its interpretation
of the U.S. Constitution in order to take international law into
account. l1he Court can look to international law when resolving open
questions of constitutional law, as it did when it held that the
Warrant Clause of the Fourth Amendment does not apply to a search of
nonresident aliens' property abroad, citing the international law rule
that a U.S. magistrate cannot validate a search within the territory of
a foreign sovereign. Or, as I discussed with Senator Corker at my
confirmation hearing, the Supreme Court can interpret a domestic act
that incorporates international law, for example when the President
issues a proclamation acknowledging a customary international law rule
or Congress enacts a statute that references international law.
General Philosophy
Question. In our meeting and your other answers before this
committee, you have often commented that you believe as an academic you
believe it is your role to inject ideas into the ``marketplace'' of
idea, but you draw a distinction that when in government positions your
job is to follow the law. o However, as a legal advisor your job will
be to interpret laws on behalf of the State Department. Are we to
believe that you will discard all of your personal thoughts and
opinions from your interpretations of the law when you advise the State
Department?
Answer. No, I certainly will not discard all of my personal
thoughts and opinions if confirmed as Legal Adviser. But having spent
my career as a scholar and a government lawyer, I fully understand the
differences between those two roles. As I explained in my answer to
Senator Lugar's prehearing Question for the Record 16 and in my
colloquy at the hearing with Senator Feingold, if confirmed as a
government official, I would uphold and defend the laws of the United
States, even if I had personal objections to those laws. And as I noted
to Senator Shaheen at my confirmation hearing, ``As an academic, you
speak in your own voice. When you are in the government, you are one of
many voices working as part of a team.''
Responses to Additional Questions Submitted for the Record
to Harold Koh by Senator Wicker
Question. In your testimony during your April 28,2009, nomination
hearing, you stated that, in your professional opinion, the Bush
Administration's 2003 decision to invade Iraq was, in the context of
international law, illegal. In your professional legal opinion, outside
of cases in which an imminent threat is present, is a legally binding
United Nations Security Council Resolution required before the U.S. can
make the decision to go to war? In your legal opinion, do the other
permanent members of the United Nations Security Council (Russia,
China, the United Kingdom, and France) therefore exercise a veto over
the U.S. decision to go to war? Since the 1999 NATO bombing of
Yugoslavia did not have the benefit of a United Nations Security
Council Resolution authorizing military operations, was it therefore
illegal?
Answer. The permanent members do not have any veto over a United
States decision to use military force for any permissible purposes.
Under Article 51 of the UN Charter, states are permitted to use force
without prior Security Council authorization when exercising their
inherent right of individual or collective self defense if an armed
attack occurs, including to use force to protect their own nationals
without Security Council authorization. As I noted in my answer to
Senator Lugar's prehearing Question 33, I agree with the 2004 report by
a high level panel convened by then U.N. Secretary General Kofi Annan
that states that ``a threatened State, according to long-established
international law, can take military action as long as the threatened
attack is imminent, no other means would deflect it and the action is
proportional.'' Cases involving the possible use of force as a means to
address widespread atrocities present a different set of issues insofar
as the rationale for using force in such cases is not based on the
right of self-defense.
There are in fact widely differing views whether using force for
humanitarian purposes is permissible under international law. I believe
that the U.S. use of force in Kosovo was both lawful and the right
thing to have done. The Kosovo intervention was expressly premised on
humanitarian intervention grounds and had broad multilateral support.
There was no reasonable alternative to the use of force. As Assistant
Secretary of State for Democracy, Human Rights and Labor during that
period, I read extensive reports indicating that forces from the
Federal Republic of Yugoslavia and Serbia were engaged in massive and
sustained repression against the Kosovar Albanian population, they had
acted in flagrant contravention of resolutions that the UN Security
Council had adopted under Chapter VII, and a humanitarian catastrophe
was unfolding that threatened not only the people of Kosovo but the
security and stability of the entire region. The intervention was
supported by a multilateral NATO decision, and significantly, shortly
after NATO commenced military operations, a resolution introduced in
the Security Council would have called NATO's use of force unlawful,
but that resolution was soundly defeated by a 12 to 3 vote.
If confirmed as Legal Adviser, I would similarly want to look
carefully at the specific facts and circumstances of any particular
proposed use of military force involving such humanitarian
considerations before rendering a legal opinion regarding their
permissibility under international law.
Question. In your testimony during your April 28, 2009, nomination
hearing, you stated that, in your professional opinion, the Bush
Administration's 2003 decision to invade Iraq was, in the context of
international law, illegal. You also stated that you were not able to
determine the legality of Israel's 1981 bombing of Iraq's Osirak
nuclear reactor because you were not in the Israeli Government at the
time of the bombing. You explained you were not privy to any
information that the Israeli Government may have held that the Osirak
nuclear reactor presented an imminent threat to Israel. As a result,
you stated you believed the Israeli Government's bombing of the Osirak
reactor may have been legally protected under the right to self-defense
granted to members of the United Nations under the United Nations
Charter. In light of the fact that you were not been a member of the
United States Government in 2003 or the following years, what is
substantively different between the two incidents that allows you to
pronounce definitively on the United States' 2003 invasion of Iraq
without being able to on Israel's 1981 bombing of Osirak?
Answer. The Bush administration's justification for the use of
force in Iraq in 2003 relied on the interpretation of publicly
available facts and legal instruments that were not similarly available
in the 1981 Osirak case. Specifically, the Bush administration set out
its justification for the Iraq invasion in a March 20, 2003, letter
from the U.S. Permanent Representative to the United Nations to the
President of the Security Council, and this view was elaborated in a
law review article co-authored by former State Department Legal Adviser
William Taft in 2003 (97 A.J.I.L. 557 (2003). That legal rationale
turned on a particular interpretation of publicly available documents:
the relevant resolutions that had been adopted by the Security Council
in the dozen years before the invasion, leading ultimately to the
adoption of UN Security Council resolution 1441 in November 2002. As an
international lawyer, I undertook my own analysis of these resolutions,
but came to a different legal conclusion about how they should be
interpreted.
Mr. Taft was an outstanding State Department Legal Adviser, whom I
hold in highest regard, and this was an issue about which reasonable
international lawyers could differ, and which in fact generated a
significant amount of disagreement, within both the United States and
foreign legal communities. As an international lawyer, I undertook my
own analysis of these resolutions, but came to a different legal
conclusion about how they should be interpreted. Mr. Taft and I both
used the same methodology: we agreed that the question whether the Iraq
invasion conformed with international law turned on the proper
interpretation of the relevant resolutions that had been adopted by the
UN Security Council in the dozen years before the invasion. As I
indicated in my response to Senator Isakson's question in the
Committee's hearing on April 28, in looking closely at those
resolutions, my conclusion was that their wording did not provide the
necessary support under international law.
In the Osirak case, Israel's justification was not based on UN
Security Council resolutions, but on the inherent right of self-
defense. As I have noted in my answer to Senator Lugar's prehearing
Question 32, determining whether the requirements of such a
justification are satisfied in any particular case can present
exceedingly difficult questions that would need to be evaluated in the
context of the particular circumstances existing at the time and the
precise nature of the threat being faced.
Question. In your professional legal opinion, are all treaties,
signed by the Executive Branch and ratified by the Senate, that
implicate domestic law self-executing? Are such treaties enforceable by
a court-of-Iaw without Congress and the Executive Branch first enacting
implementing statutes and regulations? If such treaties are self
executing, please list which treaties the Government or the United
States has heretofore not considered self-executing that it ought to
have considered self executing. Following Senate ratification of
treaties that implicate domestic law, who has standing to sue using
those treaties as a controlling legal authority? If you are confirmed
as Department of State Legal Advisor, will you advise the President,
the Secretary or State, the Attorney General, and the Solicitor General
of the United States to defend the self-executing nature of treaties
that implicate domestic law in a court-of-Iaw?
Answer. I do not consider that all treaties or treaty Provisions
arc self-executing. The Supreme Court has made this clear, beginning in
Foster v. Neilson, 27 U.S. 253 (1829), and recently in Medellin v.
Texas, 128 S.C. 1346 (2008). A self-executing treaty may not be
directly enforceable in a U.S. court in all respects. For example, a
self-executing treaty does not necessarily create private rights of
action in U.S. courts, and the same treaty may have both self-executing
and non self-executing provisions. I respect the Senate's role in
determining the domestic effect of treaties and, if confirmed, I would
expect to consult with the Senate regarding the domestic legal effect
of new treaties being considered by the Senate. With respect to any
particular treaty, I can assure you that I would be committed to
providing the best possible legal advice to the Secretary of State and
other State Department officials, consistent with the Constitution and
laws of the United States.
Question. In your testimony before the U.S. Senate Committee on
Foreign Relations on June 13,2002, in support of Senate advice and
consent of the Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW), you testified that it is 'flatly
untrue' that 'CEDAW supports abortion rights' and that 'on its face,
the CEDAW treaty itself is neutral on abortion'. Article 17 of the
CEDAW treaty establishes a Committee under United Nations auspices
charged with implementing CEDAW. That Committee has on several
occasions advised CEDAW states-parties that it is inconsistent with
their treaty obligations to prohibit or place limitations on abortion
access. Please address this topic in light of your 2002 testimony.
Answer. Article 17 of the Convention states that the Committee's
purpose is to consider ``the progress made in the implementation of the
. . . Convention'' and Article 21 provides that the Committee ``may
make suggestions and general recommendations.'' Neither of these
provisions, nor any other provision of the Convention, vests the CEDAW
Committee with legally binding authority over a State Party. I have
never considered the views of the CEDAW Committee--as opposed to the
text of the treaty, which is the only legal instrument that the United
States might ratify--to be legally binding on the States parties, or
upon other States who might eventually ratify the treaty. The Committee
was and is free to offer its interpretation of particular issues as
applied to particular countries, just as the U.S. Government would be
free to disagree with the CEDAW Committee were the United States to
become party to the treaty and to reach different conclusions on its
meaning and scope.
Question. Despite the Senate's declining to ratify the Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW)
heretofore, is the United States nevertheless legally-bound by CEDAW as
a result of its widespread international acceptance? Is CEDAW self-
executing? If the United States is ever legally-bound by CEDAW, would
it correspondingly be legally-bound by the decisions of the United
Nations CEDAW Committee?
Answer. No, the United States is not legally bound by CEDAW. As
Assistant Secretary of State for Democracy, Human Rights and Labor, and
as an academic, I argued that the United States should ratify the
treaty precisely because it was not yet legally bound to its
provisions, and my view is that remains true today as well. With
respect to whether CEDAW is self-executing for purposes of United
States law, I note that the 1980 letter of submittal from then-
Secretary of State Muskie, which accompanied President Carter's letter
transmitting the Convention to the United States Senate, stated that:
``Virtually all of the articles of the Convention are, in our judgment,
not self executing and would probably not be construed as such as they
appear to contemplate that legislative or other implementing action be
taken by the parties (beyond ratification) in order to carry out the
Convention's provisions.''
If the Senate were to consider giving its advice and consent to the
treaty, it would need to decide whether it agreed with that assessment.
As a general matter, as I noted in my oral testimony and in my answers
to Senator Lugar's prehearing Questions for the Record 6 and 27, I have
long argued in my writings that Article II of the Constitution mandates
that the Senate and the President act as partners in the treaty
process. If confirmed, I would respect the Senate's role in determining
the domestic effect of this treaty by consulting with the Senate on
this and other aspects of the proposed treaty.
Finally, as noted in greater detail in my answer to Senator
Wicker's Question 4, were the United States to become a State Party to
the Convention, it would not be legally bound by decisions of the CEDAW
Committee, which do not form part of the text of the treaty.
Question. During your April 28, 2009 nomination hearing, you
testified that the United States' 2003 invasion of Iraq was illegal in
the context of international law. I inquired whether, in your
professional legal opinion, Iraq was entitled to a remedy at-law as a
result of its being the subject of an unjust war. You responded by
invoking the Jus in bello/Jus ad bellum distinction. Please clarify how
the distinction applies.
Are countries that are attacked in violation of international law,
but wherein the war is waged justly, entitled to a remedy-at-Iaw?
Are countries that are legally attacked, but wherein the war
against them are unjustly waged, entitled to a remedy-at-law? If so, is
it therefore the case that, in your professional legal opinion, Iraq is
not entitled to a remedy-at-law despite having been subject to what is
in your view an illegal invasion?
Answer. My point at the hearing was that any international legal
violation in the way the United States may have decided to use force in
Iraq (which is governed by the law Jus ad bellum would not
automatically call into question the legality of any of the various
actions taken by the United States in the course of conducting that war
(which is governed by the law of Jus in bello). If a foreign government
believed that the United States had illegally used force against it and
chose to pursue such a remedy before either a domestic or international
court, it would encounter severe--and in my view, preclusive--obstacles
related to jurisdiction, standing, justifiability, admissibility and
enforcement.
Responses to Additional Questions Submitted for the Record
to Harold Koh by Senator Casey
Private Security Contractors
Question. Because of insufficient numbers of U.S. government
diplomatic security personnel at the State Department, the Department
has turned to the use of private security contractors such as
Blackwater Worldwide (now XE) and Triple Canopy to provide personal
protective services in areas such as Iraq and Afghanistan. Today the
State Department has contracts with private security contractors
providing about 1,400 armed personnel in Iraq, and about 75 armed
contractors in Afghanistan.
I have expressed my strong concern over the excessive use of PSCs,
especially in Iraq, in the aftermath of the incident at Mansoor Square
in the fall of 2007 when Iraqi civilians were gunned down after
Blackwater guards opened fire in a crowded public square with no
apparent provocation ion. It left a stain on the reputation of all U.S.
military forces operating in Iraq, even though only private security
contractors were involved. I have worked with Chairman Kerry in
encouraging the State Department to reduce the role of PSCs as we draw
down our combat troop levels in Iraq.
I have also been concerned about a potential gap in our law that
prevents the United States from prosecuting criminal offenses committed
by U.S. contractors assigned to federal agencies other than the Defense
Department overseas. Accordingly, the Blackwater contractors involved
in the September 2007 incident may be able to walk away because they
were working for the State Department.
Question. How would you draw the distinctions between functions
that private security contractors can serve and those reserved for U.S.
federal employees under the ``inherently governmental'' restrictions?
Answer. My understanding is that the State Department's private
security contractors who protect U.S. Government officials in Iraq and
Afghanistan are not authorized to engage in law enforcement duties
(such as arresting or detaining suspects) or offensive combat
operations. The contractors' exclusion from these functions are two of
the factors that contribute to the Department's determination that
their functions are not ``inherently governmental''
The determination of whether certain functions are inherently
governmental is guided by laws and regulations that leave most specific
cases to the judgment of the relevant department or agency. If
confirmed, I will work with other senior officials to ensure that the
State Department continues to act in full compliance with all
applicable laws and regulations with regard to the use of contractors,
including the ``inherently governmental'' restriction.
Question. What is your understanding as to whether the United
States or Iraq exercise primary criminal and civil jurisdiction over
those contractors not under contract to DOD who operate in Iraq? What
implications does this have for continuing U.S. operations in Iraq?
Answer. My understanding is that since the entry into force of the
U.S.-Iraqi Security Agreement and the Iraqi Parliament's suspension of
Coalition Provisional Authority (CPA) Order 17, all U.S .-affiliated
contractors operating in Iraq are now subject to the criminal and civil
jurisdiction of Iraqi courts. U.S. law also provides a basis for the
United States to exercise jurisdiction over crimes that contractors
commit in Iraq in a number of circumstances.
With regard to the impact of these legal rules on U.S. operations,
my understanding is that the immunity from Iraqi legal process for
contractual acts granted by CPA Order 17 was unusual, and that the
situation today in Iraq is now in line with most other countries around
the world where our contractors operate. For example, U.S. contractors
in Afghanistan have never possessed blanket immunity from Afghan legal
process. In this period of transition in Iraq, there are numerous and
significant issues to resolve to ensure that U.S. operations are able
to continue safely, while respecting Iraqi law. I also understand that
several joint U.S.-Iraqi committees have been established to address
these complex issues, including the rules governing contractor
operations. If confirmed, I look forward to participating in
discussions in this area and consulting with you and other interested
members of the Committee and the Senate regarding these important
questions.
Question. In your opinion, are U.S. laws sufficient to hold private
security contractors and their employees liable for any actions in
overseas contingency operations in Iraq and Afghanistan if those
actions are not in support of military operations? Would the protection
of State Department, USAID, and other U.S. government officials in
those countries be considered in support of military operations?
Answer. As Secretary Clinton has said, the Department of State
needs to take a hard look at the issue of security contractors abroad
and how they are used and held accountable, while at the same time
recognizing that we need to provide security for our diplomats if they
are to perform their vital mission in Iraq and other dangerous places.
If confirmed, I will ensure that my office has reviewed the full range
of legal issues that the Department's use of private security
contractors generates and whether additional legislation might be
beneficial. As an unconfirmed State Department nominee, I would need to
defer to the Department of Justice on the specific question of whether
any given U.S. contractor is acting ``in support of the DOD mission
overseas within the meaning of the Military Extraterritorial
Jurisdiction Act, a question that is at issue in an ongoing criminal
proceeding.
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