The Demonization of Harold Koh

Conservatives are rallying against Harold Koh’s nomination as legal adviser to the State Department. They are right to see it as a key position. Koh would be the nation’s decisive spokesman on the rule of law in foreign affairs. While the Supreme Court speaks rarely and reluctantly in this area, the opinions of the legal adviser have an immediate impact throughout the entire domain of our international relations.

“President Obama has selected one of the few lawyers who has probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled.”

It’s perfectly appropriate, then, to scrutinize Koh’s views—and especially important to prevent right-wing criticism from obscuring Koh's distinctive contribution to the Obama administration.

The opening round has been dominated by baseless charges that Koh would have American courts impose Shariah law. Even the National Review has distanced itself from these claims. Nevertheless, they will serve their purpose if they help more respectable commentators, like John Fonte of the Hudson Institute, paint Koh as an extreme advocate of “international imperialism. Under Koh’s plan, the Constitution would become secondary and international law would take precedence….”

It’s true that Koh has condemned the Bush administration’s violations of international law. But so has President Obama, and we should expect him to nominate a man who will carry through on his commitment. Conservatives should recognize that they lost the election, and that the State Department will indeed return the country to its traditional role as a leading advocate of international law.

While Koh’s internationalism is mainstream, his truly distinctive views deal with the relationship between Congress and the presidency in developing foreign-relations law. His landmark book, The National Security Constitution, is a sobering review of the historical process through which the imperial presidency has broken from congressional oversight. Koh’s work represents the most thoughtful effort to restore Congress to its rightful role as a check on presidential power in foreign affairs.

In contrast to most legal critics, Koh doesn’t succumb to the illusion that the Supreme Court will take the lead in insisting upon a robust congressional role. He calls for the legislative enactment of a National Security Charter that would require the president to consult Congress on key issues. Reflecting on the failures of earlier efforts, like the War Powers Resolution and the National Emergency Act, he proposes new structures that might effectively operate to check presidential unilateralism in the decades ahead.

Koh published his book in 1990, and its distinctive mix of visionary possibility and hard-headed practicality earned him a professorship at the Yale Law School.

Over the years, he won the broad respect of his peers, who gave him their solid support when the time came to select a new dean.

Koh’s scholarly work has stood the test of time. Indeed, the excesses of the war on terror only make his call for a realistic restoration of effective congressional oversight more relevant now than in 1990.

This is the real importance of the Koh nomination. President Obama has selected one of the few lawyers who probed deeply into the constitutional implications of presidential unilateralism and how it might be controlled. Koh would be taking his position as legal adviser at one of the rare moments when it might be politically possible to consider a National Security Charter that aims to restore an effective system of checks and balances.

The abuses of the Bush years are still fresh in the public mind. Both Congress and the president have pledged to restore the rule of law. There won’t be a better time for America to confront the profound structural problems that allowed President Bush to keep the facts about torture, and other illegalities, from Congress and the American people. Koh is precisely the person who might help the House, Senate, and the president reach a consensus on framework legislation that will prevent similar abuses in the future.

It would be a great shame if the right-wing assault on Koh were allowed to deprive Americans of this opportunity.

Bruce Ackerman is a professor of law at Yale University.