- The Washington Times - Tuesday, April 28, 2009


This afternoon, members of the Senate Foreign Relations Committee will have an opportunity to demonstrate why the Framers gave the Senate the constitutional power to confirm presidential appointees.

If they fail to exercise that power vigorously with respect to the nomination of Harold Koh to be the top State Department lawyer, they will not only have been derelict. They will be accomplices to an assault on our Constitution that ultimately will result in an unprecedented, and likely permanent, derogation of the Senate’s vital role and responsibilities.

After all, Mr. Koh is one of the nation’s most prominent - and aggressive - proponents of a set of hoary notions that, for shorthand, can be described as “universal jurisprudence.” Reduced to its essence, Mr. Koh’s school of transnationalism thinks the Constitution of the United States and the laws that flow from it must be “improved” continuously in extraconstitutional ways.

To be sure, transnationalists profess to find support for their desire to morph our statutes and rulings so as to conform them to the international “norms” and judicial rulings with which they are at odds by citing the very Founders whose handiwork and clear purpose they treat with such contempt.

On the grounds that the Declaration of Independence exhibited a “decent respect to the opinions of mankind,” they contend we are obliged to do so today as well. This requires, in Mr. Koh’s words, that we “internalize” into our domestic legal code and policies whatever dictates should, in the opinion of others, govern.

In this way, Mr. Koh and his fellow transnationalists - who evidently include one-time University of Chicago professor of constitutional law Barack Obama - seek to amend our Constitution and statutes. They would do so through means that afford none of the representative government, checks and balances or judicial review that have been the essential engine behind the hugely successful American experiment.

In this way, they can promulgate laws and judicial rulings that simply would never pass muster with the American people or a majority of their elected representatives.

In light of all this, the following are among the questions that cry out for Senate examination before any vote on Mr. Koh’s nomination:

c How would Mr. Koh square the oath of office he must take if confirmed as State Department legal adviser to uphold and protect the Constitution with his insistence that international law and norms must take precedence if there is a conflict between them?

c Our Constitution recognizes Americans’ inalienable right to freedom of expression. Does Mr. Koh believe that right should be trumped by what amounts to Shariah blasphemy laws being written into international norms at the insistence of the Organization of the Islamic Conference so as to prohibit and criminalize speech that offends Islam and its adherents? Does he favor hate-speech legislation recently approved by the House Judiciary Committee that would set the stage for such an infringement and associated penalties?

c Speaking of Shariah, does Mr. Koh’s interpretation of the phrase “decent respect to the opinions of mankind” require the United States to internalize more generally the brutally repressive, misogynistic and seditious theo-political-legal program to which authoritative Islam gives that name? Once he asserts that the Constitution is not necessarily the supreme law of the land, on what basis would the nominee say other legal codes, such as Shariah, can be excluded from use?

c Does the nominee believe that foreign judges and/or international tribunals should be permitted to prosecute U.S. officials who, in the course of their duties, provide the president and his subordinates with legal or other opinions on policy matters? Is he willing to be subjected to such inquisitions in the event memorandums he might author as legal adviser wind up giving legal grounds for, say, Predator drone attacks on suspected Pakistani terrorist bases or Somali pirate operations that wind up killing innocent civilians? Or would he find it unimaginable that he would ever authorize such strikes?

c The State Department has issued green cards for many tens of thousands of Somali “refugees” who have been basically unceremoniously dumped on mostly rural communities around the United States. The department has determined that fraudulently obtained family-reunification visas have gone to as many as 80 percent of those who now constitute a socioeconomic blight on the host communities; serious health risks of tuberculosis and other communicable diseases - especially on the part of those working in chicken-processing plants and other food-supply-related facilities; and an apparent petri dish for terrorist operatives. Does the nominee think the U.S. obligation to take in such refugees must take precedence over the national interest in security?

Based on his past writings and public pronouncements, if Mr. Koh is truthful in his answers to these and similar interrogatories, he should be disqualified from serving as the top State Department lawyer.

In the first 100 days, Team Obama clearly set its sights on changing the United States in myriad ways, many of them ominous. The Senate - and the rest of us - will rue the day if a majority of its members blindly allow the new administration to adopt the anti-constitutional theories espoused by the likes of Mr. Koh and allow him to implement them in brazen violation of an oath of office with which they explicitly conflict.

Frank J. Gaffney Jr. is president of the Center for Security Policy.

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