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April 03, 2009

The Koh Firestorm

Jeffrey Laurenti

Americans' repudiation last November of bankrupt conservative dogma that had failed so disastrously, at home and abroad, should have discredited right-wing fantasists and empowered moderate realists in the Republican party.  But the crescendo of hysterical attacks on President Obama's selection of Harold Hongju Koh as top legal advisor to the State Department makes discouragingly clear that, in foreign policy at least, the Grand Old Party's wiser heads remain marginalized and on the defensive. 

Koh is dean of the Yale Law School.  He served as assistant secretary of State for human rights in the Clinton administration, and outside of government has won wide recognition for his legal scholarship and advocacy of human rights.

The conservative blogosphere, however, sees these not as qualifications for the State Department's top lawyer but as proof of perfidy.  And conservative ideologues have not lost their clout with Republicans in Congress, as their success in mobilizing Senate opposition to Dawn Johnsen's comparable appointment to the Justice Department shows.

Human rights, after all, are merely "a euphemism for left-wing extremism," as one conservative commentator fumes (and we all know that Yale is a cesspool of leftist indoctrination).  Koh has "extremely radical views" about subordinating U.S.government behavior to the obligations of "so-called international law," warns another. 

From a leading conservative institute comes the charge that Koh represents "international imperialism," eager to impose international law "regardless of what Americans said about the matter."


Oh, and did I mention that Koh will also impose Islamic Sharia in American courts?  Was there perhaps something in the Quran about stoning bankers for usurious lending?


Such high dudgeon is particularly unconvincing from ideologues who have forcefully insisted that the president can abrogate American law in the name of national security.  The fervent opponents of Harold Koh turn out to be enthusiastic defenders of John Yoo. 


So it should not be surprising that they frame their arguments against Koh not in terms of respect for American law, but of guarding American sovereignty.  It is not the rule of law that excites them, but the power to rule.  And Americans have been burned repeatedly by conservatives in the White House favoring power over law – with Watergate, with Iran-contra, and with Guantanamo-Iraq.

It is no coincidence that the strongest resistance inside the Bush administration to the champions of torture, detention, and invasion came from the State Department’s (Republican) legal advisors whom Koh is to succeed.  With their understanding both of law and of international relations, they foresaw exactly the Waterloo to which White House Napoleons were leading America.

Alas, Koh's opponents still don't get it.  They continue to deride what the redoutable senator Jesse Helms unfailingly called "quote-unquote 'international law'," obstinately deny that congressionally ratified treaty law has any legal force, and remain firmly oblivious to how arrant contempt for international law has shattered America’s credibility and global leadership.


Elsewhere I have argued that it was Washington’s growing estrangement from the mutual obligations of international law over the past quarter-century, spiking during the Bush years, that gnawed like termites at the foundations of America’s leadership and power. That erosion led to their sudden crumbling with the most flagrant breach of all, the unprovoked invasion of Iraq.

A conservative movement still frozen in the ideological verities of the 1920s still cannot acknowledge the centrality of international law to America’s leadership and alliances.  Convinced that the flexing of U.S. military power was all it would take to lock in global dominance, conservatives cannot explain the abrupt collapse of America’s worldwide influence – just as they remain uncomprehending of its economic collapse.

Dean Koh’s nomination provides a helpful test for practical politicians puzzling out how to reposition their right-of-center coalition to regain electoral competitiveness.  Will they embrace the rule of law internationally, affirming the worldview of not only Koh, but the State Department legal advisors of the Bush years, Will Taft and James Bellinger?


Or, even in the ashes of the failed conservative project for a new American century, will they continue to see “international law” as a bogeyman?


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Sally McMillan

Excellent article and an excellent appointment. Koh spoke at UNM a couple years ago and I (and others) was very impressed. Unfortunately, with this and other policies, the Republicans don't seem to get it - they lost the election. American people voted for a change.

Jeffrey Laurenti

The country has to hope that a critical mass of "practical politicians" in the G.O.P. does indeed get it. The "it" ones hopes they "get" is not that their party lost an election (you always win some and lose some), but that the illusionist Right that has hijacked control of their debate is locked into dogmas that would only intensify the debacles of recent years. Recognizing obligations in duly ratified treaties as legally binding should not be an object of controversy in a state that presumes to lead in the international community.

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