Wednesday, March 25, 2009

Shocked, shocked

Casablanca's Captain Renault (below) would have put it this way*:

I'm shocked, shocked to find that an expert in transnational law might advise the State Department!

That in a nutshell is how 3 National Review Online bloggers attacked Harold Hongu Koh the day after his nomination to become State's Legal Adviser.
Koh, as we posted yesterday, is the Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School. His list of other achievements includes service as the Assistant Secretary of State for Democracy, Human Rights and Labor, as a member of the Secretary of State's Advisory Committee on Public International Law, and as an Attorney-Adviser in the Office of Legal Counsel at the Department of Justice.
Yet these 3 bloggers seem to see Dean Koh not as an accomplished and respected legal expert. He is, rather, a "transnationalist." And they mean that in a bad way.
One wrote:

Koh is a leading proponent of transnationalism, which would subordinate American national interests to perceived global interests. In his new post, Koh would be well positioned to turn his academic theories into reality—threatening severe damage to American sovereignty and subjecting American citizens to rule by a transnational elite of left-wing lawyers appointed to various international bodies.

In an apparent effort to signal a like-minded groundswell, that post then pointed the reader to posts by 2 others -- without mentioning that all 3 appear on the same NRO site.
One post stated that the Constitution by its own terms, and not a treaty, is the supreme law of the land. Given that this is a given for any international lawyer operating within the framework of U.S. law, the effort to use the principle as a trump card against transnationalism confounds the reader. So too the suggestion that a state's sovereignty is "sapped" simply because the state engages in consensual cooperation with other sovereign states.
As for these bloggers' "T" word (not "torture," which Koh has condemned in no uncertain terms, but rather "transnationalism"):
It is no novel idea, but rather a concept that traces to lectures published a half-century ago by Dr. Philip C. Jessup, himself an American diplomat, scholar, and judge. Jessup's 1956 insight was about reality, not theory. He observed that the categories of private and public law were blurring, and that law increasingly was crossing borders. "Transnational" law was worth study for the simple reason that it trained attorneys to spot these developments and thus to adapt their practice, to make choices of law. Koh's work -- including his co-authorship of a casebook containing judgments that illustrated these developments -- built upon this recognition of the world as it is.
In essence these 3 bloggers thus claim that expertise in the real world of law disqualifies someone from advising our government about the law.
Now that is shocking.

* Forgive the transnational cultural reference to the utterance of a French officer played by an English-born naturalized American in an American-made movie set in Morocco during a global war in which America won a leading role.

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