When Yale Law School Dean Harold Koh was chosen as chief legal counsel to the State Department, we editorialized that it was an “offensive nomination.” We explained that “Mr. Koh’s repeatedly stated agenda is contrary to the American tradition of law originating in the ‘consent of the governed.’ ” Little did we know that Mr. Koh would trample on the consent of the governed in other countries, too.
Now we discover that it was Mr. Koh’s legal opinion that supported the Obama administration’s wrongheaded, and indeed immoral, decision to punish the nation of Honduras. The administration bizarrely objects to Honduran legislators and judges enforcing their own constitution against the would-be dictator, Manuel Zelaya, who tried to shred a key constitutional restraint against a Honduran president trying for a second term in office.
In August, the Law Library of Congress concluded that “the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya … in accordance with the Honduran legal system.” Yet not only did the Obama administration object, but it imposed unilateral sanctions against Honduras. Even James Kirchick of the liberal New Republic magazine wrote that “U.S. policy has become a mistake in search of a rationale.”
Sen. Jim DeMint, South Carolina Republican, reports that when he and Reps. Aaron Schock, Peter Roskam and Doug Lamborn (Republicans of Illinois, Illinois and Colorado, respectively) went on a fact-finding mission to Honduras, the only person there from any party or interest who said Mr. Zelaya should still be in power was U.S. Ambassador Hugo Llorens. The only source Mr. Llorens could cite for his stance was a legal opinion by Mr. Koh.
As it happens, Mr. DeMint and 15 other senators have been asking since July 8 for the State Department to cite the source of its legal analysis. Their letter protesting the administration’s stance was mailed to Secretary of State Hillary Rodham Clinton. In an unmerited slap in the face, the department’s response came not from Mrs. Clinton, but - a slow 14 days later - from Richard R. Verma, the assistant secretary for legislative affairs. Mr. Verma’s letter completely ignored the request for legal analysis. Mr. DeMint reports that all subsequent congressional attempts to see legal analyses written by Mr. Koh or anybody else have been rebuffed as “privileged communications.” This is, to put it bluntly, illegal. No such vague privilege exists.
Legal scholar Miguel Estrada, who was born in Honduras, has asked why Mr. Koh appears to “not have the gumption to expose his reasoning process and conclusions to public scrutiny.” Perhaps it’s because Mr. Koh’s conclusions undermine a Honduran government that even Mr. Verma acknowledges is “an important trading partner [and] an ally in the fight against drug-trafficking cartels and organized crime.”
Former top federal prosecutor Andrew C. McCarthy, writing for National Review, put the problem best: “Now, under Obama rules, we have to tell al Qaeda what our interrogation tactics are but we can’t tell the American people why the Obama administration has made a political determination to support a [Marxist] thug at the expense of Honduras’ rule of law.” The stonewalling is unacceptable. So is the policy it supports.