CHAIRED BY: SENATOR JOHN KERRY (D-MA)
WITNESS: THE NOMINEE TESTIFIES
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SEN. KERRY: (Sounds gavel.) This hearing will come to order.
We're here today to consider the nomination of Dean Harold Koh to be 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'll call on him 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've 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's a person of the highest intellect, integrity and character. Frankly, we're 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 United States 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's published or co-authored eight 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, quote, "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, quote, "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 Mother's Day. (Scattered laughter.) 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 for this nomination from all over. We've heard from over 600 law professors, over 100 law school deans, over 40 members of the clergy, seven former member 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, quote, "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's 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'll welcome Senator Lieberman. I don't know if Senator Dodd's coming over or not, but -- and Dean, I hope you'll sort of keep your summary -- I think it'd be best just to give senators an opportunity to have a question period. And we look forward to hearing from you, too. Thank you.
SEN. RICHARD LUGAR (R-IN): Mr. Chairman, today the committee meets to consider the nomination of Harold Koh to be Legal Adviser to the Department of State. As you've 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. The Legal Adviser's primary role is to provide objective advice on legal issues, not to advocate for particular policy outcomes. The Legal Adviser must be prepared to defend the policies and interests of the United State 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. The Legal Adviser must also be a practical problem solver, employing legal tools and methods to assist policy makers 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 had 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've had the opportunity to meet with Dean Koh last week as part of his confirmation process.
I've 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 website last Friday, 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.
SEN. KERRY: 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 and other things, and so we welcome your comments and introduction.
SEN. JOSEPH LIEBERMAN (D-CT): Thanks, Mr. Chairman. It's a -- as they said in the Dartmouth College case, it's a small law school but there are those of us who love it, or something like that. Mr. Chairman, Senator Lugar, members of the committee, I'm honored to be before you to introduce Harold Hongju Koh of New Haven, Connecticut.
Mr. Chairman, Senator Lugar, you've spoken so well and made many of the points that I wanted to make. I'm going to with your permission include my full statement in the record and just speak to you a bit about Harold Koh. I -- 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 because before he became the famous person at the State Department, dean of Yale Law School, and now once more famous and slightly more controversial that I've ever thought of (him nominee ?) to be the legal advisor to the State Department.
So I -- 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 the values that we -- we seek in friends and neighbors. And I think while we may not always think of those kinds of personal qualities to me they're quite relevant and knowing members of this committee I would guess in the end they are to you as well.
Secondly, as the record speaks, he's a brilliant legal scholar -- a real authority in the area for which he's been nominated to serve, as legal advisor. He is one of the world's foremost experts on international law. Harold may actually be qualified for this position -- (laughter) -- and so I'm happy to be able to say that. Second, in 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 touch, I believe, on another personal factor about Harold Koh. He's 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 said about rule of law springs from -- from that loyalty and belief in the fundamental values of our country. Harold has coauthored or authored eight books and written more than 150 articles.
He's 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's 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's worked with him no matter whether they've 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'll remind us always as -- as we understand that there is a lot of partisanship in a lot of different areas that we -- we debate.
There -- 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 have been about, and it is that surpassing priority that he will bring to the position of legal advisor at the State Department. So I'm proud to -- to recommend that you recommend to the full Senate that we confirm the nomination of Harold Hongju Koh. Thank you, Mr. Chairman.
SEN. KERRY: Thank you very much, Senator Lieberman, and we really appreciate that. 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're delighted to have your words of introduction --
SEN. CHRIS DODD (D-CT): Well, thank you very much, Mr. Chairman, and this will be very much of an echo in a sense. Having listened to my colleague, Senator Lieberman, speak of Harold Koh I -- I just want to add my words to his. This is an extraordinary opportunity. We -- I think we ought to be deeply grateful to the president and to Harold Koh for 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, he has served in both Democratic and Republican administrations. At Yale Law School, the invitation that Harold Koh has made to various people to come to that campus representing a wide spectrum of views is an indication of the kind of diversity of thought he welcomes and how critical that is in this legal advisor's role in 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 and a ever growingly more complex environment we all operate in.
So it's a unique opportunity, particularly when you're confronting the genocide in Darfur or addressing Iran's nuclear programs, the violence on our southern border, the issue we're all talking about today -- the swine flu issue -- and all of the issues that are associated that that legal advisor's office must be ready and have the ability to -- to bring all of those questions together. It is -- it's a major law office in the State Department. This is no small department.
It requires the kind of leadership and understanding that Harold Koh brings to that job -- as Joe has pointed out so rightfully, a remarkable family history. There are obviously millions of those stories but I think you add that story to what this individual has done with his life and the difference he's 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's taken his life experience, his family's experience, and then translated that into the public service of our nation, leading a -- leading a major academic institution on which we depend in no small measure for the diversity of thought that springs from that institution. And so it is a remarkable chance for all of us to have the ability of (someone's ?) as much talent as Harold has to -- to serve our country, and we've gotten to know each other very, very well. I'm not purely objective about this.
I've worked with Harold on the human's (sic) rights issues in Connecticut -- the institute named for my father at the University of Connecticut which is dedicated to the human rights discipline. Harold has been tremendously helpful and influential in shaping that. And so beyond just the awareness of someone I've gotten to know this man personally and well on these questions. The meetings -- I'm talking about 20 years ago. We met on Haiti, discussions about how to proceed on those issues, going back over the 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'm here because I believe this is a unique opportunity for us to -- to welcome and to celebrate a life who's willing to help serve our nation at a critical moment and -- and so I'm -- I'm delighted to join Joe in this -- 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're 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 advisor to the secretary of state. And I thank you for listening.
SEN. KERRY: Well, we thank you, Senator Dodd, and Senator Lieberman for very personal and important statements of support for the nominee, and I know you're both unbelievably pressed schedule wise so we will excuse you at this time and --
SEN. DODD: I didn't introduce your family. Joe, I presume you mentioned the family. Did you?
SEN. LIEBERMAN: I'm going to -- I said hello but I'm going to leave it --
SEN. DODD: You're going to leave that to -- (inaudible). I apologize.
MR. : Nice to see you again.
SEN. KERRY: Thanks so much for being here.
MR. : Thank you.
SEN. KERRY: So Mr. Koh, if you would -- we'd love to have you introduce your family and to have a chance to be able to recognize them here and then we look forward to your testimony.
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 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're hoping that I'll be able to come to his confirmation hearing, in due course.
SEN. KERRY: That's impressive. (Laughter.) Well, we look forward to your testimony. Thanks very much.
Welcome, all of you. We're really delighted to have you here. It's a great story, and we're really pleased that you could share in this moment.
Go for it.
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 Secretary -- 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've 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 in 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're 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 versus 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'd 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 Chase, once said there's 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've spent my career as a scholar and government lawyer. I understand the difference between those roles. For 30 years I've worked with talented and dedicated attorneys in the legal adviser's office, which I consider to be the pre-eminent international law firm in the world.
And as I've 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'd 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've 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.
SEN. KERRY: Thank you very much, Dean Koh. I appreciate it.
Let me sort of cut right to it, if I can.
Obviously, since the president nominated you, there's been some discussion of your views on the interaction of international foreign and domestic law. (And perhaps ?) -- and that includes the theory of a transnational legal process, when you've described that as a kind of shorthand description for how state and non-state actors interact.
Would you just perhaps share with us, maybe you could clarify -- 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's the proper weight and procedure?
MR. KOH: Senator, a transnational legal process, which is an academic idea, just says what we all know: that we live in an interdependent world that's growing increasingly more interdependent.
It's not new and it's not radical. It's not an ideology; it's a description of the 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 G-20 economic interdependence, if our health officials are working on interdependence of our response to swine flu, it makes sense to have a State Department whose lawyers are working to manage the interdependence between the United States' law and laws around the world.
This is not new. It's from the beginning of the Republic. It's the basic views of Thomas Jefferson and Ben Franklin, who called for us to give decent respect to the opinions of mankind.
And most important, it's 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 of the State Department, if confirmed, who had a similar kind of knowledge.
On the question of foreign law and courts, obviously I'm not being nominated to be a judge. I'm 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's been said by many justices, going back, and seven justices on our current Supreme Court that we must look to foreign law. We're not bound by it; it's 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.
SEN. KERRY: So when, if ever, would you counsel that an international and/or foreign law should be binding in our court? Are there circumstances where it would be?
MR. KOH: They're only binding in our court, international and foreign law, when judges make them so -- the president suggested they should be so -- or Congress embodies them into an act of Congress that's 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.
SEN. KERRY: Could that happen outside of a treaty that is ratified by the United States 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's 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.
SEN. KERRY: 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's 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's 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 a 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.
SEN. KERRY: 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 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's 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.
SEN. KERRY: Thank you very much, Dean Koh. I appreciate it.
And, Senator Lugar, I'm 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 awhile. Thank you very much. Thanks.
SEN. LUGAR: We're going to do our best.
SEN. KERRY: Senator, you're a -- you're a proven act in this city. (Laughter.)
SEN. LUGAR: 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 and dramatic quote, but Time Magazine published an article by Massimo Calabresi, on Friday, April 24th, in which he says, "The battle began in late March when Fox News fire-starter Glenn Beck said Harold Koh, Obama's nominee to be the State Department's top lawyer, supported Muslim Shari'a Law -- 'Shari'a 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 School and a former official under President Reagan, and Clinton, wanted to subjugate the United States Constitution to foreign law. All of which would be fairly standard ratings-chasing melodrama, except the prominent members of the G.O.P. like Karl Rove and former U.N. ambassador, John Bolton began signing on to 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 -- (laughter) -- 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're aware, Dean Koh, and from our own conversation, while you recognize -- you're 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 -- but, this is a source of concern for many Americans.
There are as many Americans as we have treaties, coming before this committee, who are very suspicious of international law, particularly in 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've had, 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'd not been through a treaty with the Soviet Union before. And, as a matter of fact, when one finally came to the fore about three years later, a two-thirds majority was obtained with majorities in both parties, who had had, sort of, a three-year study period of what this meant in terms of international law. How do you enforce all of this? What does it mean to the 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. And he has a very large country, and whether he 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 all felt this was 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.
Would you speak again to the problems -- as you would see, pragmatically, of the problems of international law; the kind of advice you must give -- in this case, as a political appointee, as one 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's 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 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 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 used the word "a power shared" in your opening remarks. It was actually the first title of my book, "The National Security Constitution," and they forced me to change it away from "A Power Shared," which (now allows as ?) you've used that title.
But, I think that's 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're 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.
SEN. LUGAR: Well, I thank you very much. I thank you again for your response to the 40 questions that I submitted to you, which I felt comprise some of the most controversial questions that could be asked --
MR. KOH: They were helpful, Senator, I might add --
SEN. LUGAR: -- asked you to put them in writing before we came to this hearing --
MR. KOH: I'm used to taking the exams in May, Senator --
SEN. LUGAR: Very well.
SEN. DODD: Thank you very much, Senator Lugar.
And, possibly the question I'll ask may have been one that was asked by Senator Lugar. And I should have looked at your questions and answers before asking this, so maybe it's already been addressed.
But, let me raise the issue of the International Criminal Court with you, if I can, Dean Koh. This is, 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 in the Sudan. And we in this country have taken a very -- at least historically, a different view, of nonparticipation in ICC, and certainly why the previous administration had very strong feelings about the head of state in the Sudan. And I don't want to suggest that they were, in any way, were not deeply concerned about the atrocities committed under the leadership of the Sudan, but were -- been very opposed to the idea of U.S. 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 as, again, I know you -- because we've talked about this a great deal, going back, as I know you know, in 1945 and '46 my father was the associate executive counsel under Robert Jackson at 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 -- we were 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, who was the strongest advocate of the trail -- secretary of War, I might point out. It was all sort of ironic in a way, but nonetheless, he was very, very supportive of the Nuremburg 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, 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 eight years have really led to two policies: an announced policy of hostility to the court; but then a de facto policy, which as you've 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 the Sudan, Mr. Bashir.
It's 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 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 un-signing of the treaty in 2002 should be reexamined; how to make sure we stay within the framework of the American Servicemembers 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.
SEN. DODD: Thank you very much.
Thank you, Mr. Chairman.
SEN. LUGAR: Thank you very much, Senator Dodd.
SEN. BOB CORKER (R-TN): I think I'll -- welcome.
I've heard from numbers of people that I respect regarding their respect for you. And you know, I know of your tremendous accomplishments, as I've mentioned to you in our office. It's pretty incredible the background that you have and the many things that you've done.
That combined with my sort of pre-sense 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'm 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've been able to achieve in your life.
And I'll 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 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.
SEN. 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 Berkley in 2004.
And I'll 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'm just wondering if you might explain to us exactly what you were thinking.
MR. KOH: Well, Senator, I'm delighted to -- and I'm 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's 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.
SEN. CORKER: 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 felt, had fallen below international legal standards. For example, with regard to torture of detainees, with regard to treatment of detainees on Guantanamo, with regard to --
SEN. CORKER: Well, was torture of detainees in the public sphere in 2004?
MR. KOH: It very much was, Senator.
SEN. CORKER: Okay. So in the areas of torture and what other areas did you deem us to be 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.
SEN. CORKER: Okay. You know, 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 (web ?) between international law and U.S. law -- it appeared to me that you were reading the answer. And I'm just wondering if that's an area that you have tenuously had to walk down, because of previous comments that you've made publicly.
You know, you're 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'm just wondering if you might speak to that, because typically, when people do that they're sort of tight roping down an issue that they're 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'm happy to reply now.
My view --
SEN. CORKER: But 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've 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've also been a government official and when I'm a government official, I act in a role. I play the role of a counselor to a client. The counselor to the client looks to the client to get direction and to try to get that person to serve the law in the best interest of the country. So that's exactly what I would say.
The question that Senator Kerry asked me was about the role of a judge applying foreign law. I'm not nominated to be a judge. What I'm being nominated to be is the general counsel of the State Department. And in that job, Senator, you have to know foreign law! It's 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.
SEN. CORKER: Well, just for the record then, as we close out.
I've 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're giving advice to someone that would be otherwise a layman in the areas that you'd be advising them and your point of view is very important and -- and the way you direct the law staff.
I was talking to you about a similar type thing in our office that there's no use getting into today. So I've actually sensed that actually, you know, if an administrator can sort of function okay that's of lesser concern than some of the judiciary and some of the areas of legal where you're giving advice to someone in an area that they really don't know much about, and certainly international law is something that not -- that most people are not experts in. You certainly are and I respect that.
But I guess I'd ask just a final question for the record, and that is that do you have the ability -- because I know you've 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've been very inspired by the words of Herman Phleger, who was the legal adviser for John Foster Dulles. He said the job of legal advisor 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've been nominated and that's -- that's what I would intend to do.
SEN. CORKER: Thank you.
SEN. LUGAR: Thank you very much, Senator Corker. Senator Feingold?
SEN. RUSS FEINGOLD (D-WI): Thank you, Mr. Chairman. I'm also, of course, very pleased to be here in support of my old friend Harold Koh, the nominee to be legal advisor to the State Department. I've known Dean Koh for more than 30 years, dating back to our time together at Oxford University. So, of course, it gives me 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've known him.
Harold was one of the most ethical and hard-working individuals I've 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 ?) promote the rule of law and human rights.
And these are some of the core values in which this country was founded and they've been an important source of our country's power. Our ability to influence other countries to achieve our international and national security priorities actually depend on a principled approach to foreign policy, which includes a commitment to these principles.
And -- and so as I listened to -- 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 follow-up question because the answer was typical Harold Koh -- precise, to the point, and effective.
Secondly, when the issue came up of -- of the question of comments made with regard to the so-called axis or 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 us to even have the perception of that, let alone the reality, and I think that's a service and, frankly, a distortion of his words to suggest that he really believes that we belong in that -- (inaudible) -- category. And finally, the notion that somehow that Harold Koh reading -- presumably reading an answer regarding the Sharia law issue -- you know, I just read my -- 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 -- (laughter) -- that Sharia law could control in our country.
So frankly, I'm pleased that some of these things are coming up because they show the -- the weakness of the criticisms that have been leveled toward this excellent nominee. So what is your position on the appropriate relationship between the executive and legislative branches when it comes to foreign affairs decision making?
MR. KOH: Well, I said in discussing this issue with Senator Lugar the Constitution's framework, while defining the powers of Congress and Article I and the president and Article II, 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's both constitutionally required and it's also smart in the sense that the president makes better decisions when Congress is involved. If they're in at the take off they tend to be more supportive all the way through the exercise.
SEN. 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've said many things. The thing about Sharia law as you pointed out is not something that I said. So I -- I guess that if -- if you're 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's 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' experience, the more likely that that outcome will be sustainable over time. A war that's begun with congressional support will maintain that support longer than one that started without congressional approval.
At the international level, the arguments I've made are the same -- that working with other countries, agreeing on how we ought to operate within the 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're going to be less safe and we won't be able to protect our sovereignty.
SEN. FEINGOLD: Thank you, Dean. Thank you, Mr. Chairman.
SEN. LUGAR: Thank you very much, Senator Feingold. Senator Eric (sic) Isakson?
SEN. JOHNNY ISAKSON (R-GA): Thank you, Mr. Chairman. Again, it's a pleasure to meet you and your lovely family.
MR. KOH: Thank you.
SEN. ISAKSON: After we met the other day, I remember telling my wife over the phone that night when I called her to report on the day that I may have talked to the most skillful attorney I'd ever talked to when you were in my office. And then I read an April 27th 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 non-lawyers. (Laughter.)
I then realized why I was so impressed. I'm a non-lawyer -- (laughter) -- and so I just wanted to -- I thought that was a good description. But there are some hard questions I want to (answer ?) because of the hard questions that are out there, you know, our advice and consent -- it's 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 other, 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'm 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's 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.
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 versus 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 versus 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're the only nation to do it, it's unusual. And the words of the Constitution say cruel and unusual punishments should be prohibited.
So I don't consider that a campaign. I think that was following the precedence of the U.S. Supreme Court and following the words of the Constitution itself.
SEN. ISAKSON: This is a hard question, but I think it's 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 two weeks over the opinions that were given by advisers to the last administration with regard to torture, including some who have called for a prosecution of those lawyers who were asked to opine on various treatments of interrogation.
Do you think a lawyer hired by the government, confirmed by the Senate, asked 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 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. By taking this job, I'm buying myself lawsuits and prosecutions. Obviously that wasn't part of the original plan.
SEN. 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.
SEN. ISAKSON: One last question. This, again, is a question that has been written about some with regard to President Bush's decision to go into Iraq and opinions you have spoken about, which I have not read precisely, so I don't know. Do you think the president 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, 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's the only point that I made in that article.
SEN. ISAKSON: Thank you for your time and attention.
MR. KOH: Thank you, Senator.
SEN. LUGAR: Thank you very much, Senator Isakson.
SEN. JEANNE SHAHEEN (D-NH): 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.
SEN. 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 may be quite different.
With regard to the security contractor issue, Senator, the issue has obviously arisen in Iraq, where there's 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 -- (inaudible) -- Square, which was a great tragedy. There has been a prosecution brought against employees of Blackwater there under the so-called MIJA, Military Extraterritorial Jurisdiction Act. That case is currently before a court. And there's been a challenge made there to jurisdiction, but a district judge has allowed that case to go forward.
So I think 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's 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.
SEN. SHAHEEN: Thank you.
Some have argued that the Geneva Conventions, which set the standards for treatment of prisoners of war, non-combatants, 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's not controlling law of the United States.
On other issues -- for example, general treatment questions -- two 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 the executive order. So it's a description of something that's been happening and will continue to happen.
SEN. SHAHEEN: Thank you.
SEN. LUGAR: Thank you very much, Senator Shaheen.
SEN. JOHN BARRASSO (R-WY): Thank you very much, Mr. Chairman.
Dean Koh, thank you for taking the time to visit with me. And I want to congratulate your mother on having two sons -- that's 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've been so instrumental in your success.
Senator Isakson talked about constitutional issues. You, in your opening statement, talked about defending our Constitution. And I would like to switch from -- he talked mostly about First Amendment. I want to talk about Second Amendment constitutional issues.
You had argued that the U.S. could support global gun control without committing itself to a regime that would affront legitimate Second Amendment concerns.
(END OF TODAY'S COVERAGE. COVERAGE WILL RESUME TOMORROW.)