Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - June 25, 2009)

NOMINATION OF HAROLD HONGJU KOH TO BE LEGAL ADVISER TO THE DEPARTMENT OF STATE

The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will proceed to executive session to resume consideration of the following nomination, which the clerk will report.

The assistant legislative clerk read the nomination of Harold Hongju Koh, of Connecticut, to be Legal Adviser of the Department of State.

The Senator from Missouri.

Mr. BOND. Madam President, I rise today to express my strong opposition to the nomination of Mr. Harold Koh to be the Legal Adviser to the Department of State. My concerns with Mr. Koh arise primarily from his own statements, writings, and testimony before Congress. In my opinion, he seems more comfortable basing his legal conclusions on partisan political opinions and trendy arguments rather than the facts and the law. We do not need more legal theorists in government. We need more legal realists in government, someone who pays attention to the hard work we do in this body to pass laws. The Department of State and the country deserve better than that kind of advice.

Let me provide a few quick examples. On September 16, 2008, Mr. Koh testified before the Senate Judiciary Subcommittee on the Constitution. His written testimony included the following statement:

A compliant Congress repeatedly blessed unsound executive policies by enacting nominal, loophole-ridden ``bans'' on torture and cruel treatment and rubberstamping without serious hearings presidentially introduced legislation ranging from the PATRIOT Act to the Military Commissions Act to the most recent amendment of the Foreign Intelligence Surveillance Act.

In the same testimony, he argued that Congress should revisit the hastily enacted FISA Amendments Act with less emphasis on the issue of immunity for telephone and Internet service providers. He obviously was not paying attention.

Besides his condescending and inappropriate tone, I think his statements reflect a poor understanding of some of the most important pieces of national security legislation that have been passed since the September 11 terrorist attacks and passed on a bipartisan basis in both Houses.

As my colleagues may know, I was heavily involved in the legislative process surrounding the passage of the FISA Amendments Act. I can assure you that certainly was not the result of a congressional rubberstamp that was enacted hastily. We began working on the first one, the Protect America Act, debated it, and passed it in the summer of 2007. When we came back in the fall, the Senate Intelligence Committee went to work on a bipartisan basis, and we worked for months to get a truly bipartisan bill that came out of the committee. In that bill, we added many additional protections to American citizens to assure their rights would be protected from warrantless surveillance, even if they were overseas. We added that. And we added further protections. That bill passed the Senate. It went to the House, and it was stalled for months.

In the spring of 2007, I sat down with the Republican whip and the Democratic whip in the House of Representatives--Steny Hoyer of Maryland and Mr. Roy Blunt of Missouri. We went through and took account of all of the concerns they had on both sides in the House of Representatives. We worked with lawyers from the Department of Justice, from the intelligence community, and lawyers for the majority staff in the House of Representatives. It took us several months. What we finally came up with was a piece of legislation that overwhelmingly passed the House on a bipartisan basis and came back and passed the Senate on a bipartisan basis.

Another key aspect of the FISA Amendments Act was to ensure the intelligence community could continue to collect timely intelligence that could be used to prevent future terrorist attacks. Another key aspect of the legislation was the carrier liability provisions that were designed to end frivolous litigation against companies alleged to have responded to requests for assistance from the highest levels of government. I don't know what planet Mr. Koh is living on, but if he thinks we can accept electronic communications without being able to give legitimate orders to the carriers of those communications, he doesn't understand the real world. That is where we find out what the terrorists' plans are, who the terrorists are, and where they are likely to strike. If we cannot say we are not going to have frivolous lawsuits against those who respond to lawful orders from the Federal Government, then we are not going to be able to have access to that information.

I am happy to report that earlier this month, the U.S. District Court for the Northern District of California, which had raised questions and entertained legislation, rejected the constitutional challenges to the carrier liability provisions and dismissed all but a few of the lawsuits involved in the multidistrict litigation. They found that, contrary to Mr. Koh, they were constitutional, and a well-reasoned opinion said they were right. A bipartisan majority in both Houses of Congress said they were right.

Let me be clear, the FISA Amendments Act was a necessary and important piece of national security legislation that is keeping us all safe. But despite the overwhelming bipartisan approval, apparently Mr. Koh does not see it that way. I urge my colleagues, even those who voted for cloture, to go back and think again, to see if legislation worked on for a year in this body on a bipartisan basis and passed by this and the other body should be dismissed as hastily approved.

In his book, he condemns the Democratic leaders in the Senate who played a leading role in making the improvements to the FISA Act. And to the Republicans, he condemned everybody who worked on it. Apparently, decisions need to be made in the Department of Justice, not through the elected will of those of us who represent the people of America. I think his charges and his disregard of Congress warrant a hard look at him.

Another example of Mr. Koh's partisan legal scholarship can be found in his May 2006 article in the Indiana Law Journal, where he wrote:

We should resist the claim that a War on Terror permits the commander in chief's power to be expanded into a wanton power to act as torturer in chief.

While that might appear to be a nice media sound bite in winning partisan plaudits, I think it is a bit premature to conclude that the United States illegally tortured detainees. We know the Department of Justice's Office of Legal Counsel reviewed the proposed interrogation procedures on several occasions and found them to be lawful.

We in the Senate Intelligence Committee are conducting a review of those practices to make sure what was done complied with the law. Where American soldiers violated all standards--not only of law but of decency--and performed unspeakable acts on detainees at Abu Ghraib prison, they were rightfully punished and sent to prison, as they should have been. That is what we do even with our brave soldiers who step out of bounds.

Here is another clever sound bite from Mr. Koh. In an article for the Berkeley Journal of International Law back in 2004, he wrote:

What role can transnational legal process play in affecting the behavior of several nations whose disobedience with international law has attracted global attention after September 11--most prominently, North Korea, Iraq, and our own country, the United States of America? For shorthand purposes, I will call these countries the ``axis of disobedience.''

To my fellow colleagues, I ask: Do you accept the fact that the United States is part of an ``axis of disobedience''? Do you really think fighting back against the terrorists who struck us on 9/11 was disobedience? Do you think we should have a Legal Adviser in the State Department who believes international law--ill-defined, not applicable--should be applied to affect his political judgments on America?

The Legal Adviser for the State Department should be an advocate for the Nation not a detractor. If I remember correctly, after September 11, by a vote of 77 Members in the Senate, plus a majority in the House, we made the determination to go to war in Iraq to make sure we didn't suffer further attacks. It was in compliance with a U.N. resolution. Oh, I say, by the way, that was a legal international resolution.

A lot of people will say Mr. Koh had a distinguished career in government service and legal academia. I am concerned he spent a little too much time in the ivory tower, and I wish he would return to that jurisdiction.

Given my previously stated concerns, I cannot and will not in good conscience vote in favor of his nomination. I recognize that Mr. Koh may be headed for confirmation, but I would ask those who may have previously voted for cloture to go to this nomination and think about what he said about Congress, about the work we have done, and about what he has said about America. Are you comfortable having him as a Legal Adviser to the State Department after what he said about America being part of the ``axis of disobedience''? Are you comfortable with what he said about those of us who voted for the war resolution, about those of us who voted for the FISA Amendments Act? I certainly am not.

If he is confirmed, I would hope for his and our country's sake, if he returns to the State Department, his legal advice will be based on facts rather than political rhetoric.

I yield the floor, and I suggest the absence of a quorum.

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