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Letter from Leitner Center Endorsing Harold Hongju Koh’s Nomination for Legal Adviser of the US State Department

Dear Chairman Kerry and Senator Lugar,

We write on behalf of the Leitner Center for International Justice at Fordham Law School in New York, New York, and associated Fordham law faculty to express support for the nomination of Harold Hongju Koh as the 22nd Legal Adviser of the Department of State. The Leitner Center’s mission is to promote justice around the world by encouraging knowledge of, and respect for, international law and international human rights. The Center, founded in 1997, advances these goals by supporting scholarship, sponsoring human rights advocacy and providing opportunities for law students, scholars and human rights defenders to collaborate to address human rights issues both domestically and abroad.

A respected and accomplished colleague, Dean Koh is committed to professionalism, public service and the rule of law. He is eminently qualified to serve in the State Department, where he will promote these values as the Administration’s top international lawyer. Throughout his distinguished career in both the public and private sector, Dean Koh has demonstrated the utmost integrity and intelligence. Serving on the Yale Law School faculty for twenty-four years, Dean Koh has worked tirelessly to engage young lawyers and to promote principled legal analysis across a variety of topics, including international law, national security, human rights and international business transactions. The American Bar Association, the American Political Science Association and Columbia Law School are among the many institutions that have recognized Dean Koh’s academic achievements. In addition, Dean Koh has argued forcibly in front of the Supreme Court and testified at numerous congressional committee hearings.

Dean Koh not only has a brilliant legal mind, he also has a demonstrated ability to work across partisan lines to address complex domestic and international problems. Dean Koh has labored in both vineyards as a public servant, working in the Justice Department during the Reagan Administration and the State Department during the Clinton Administration. As a testament to his qualifications, several high-level appointees from the Administrations of Ronald Reagan, George H.W. Bush and George W. Bush have endorsed Dean Koh’s nomination, in addition to the many top appointees from Democratic former Administrations who support him. For example, former Solicitors General Theodore Olsen and Kenneth Starr have endorsed Dean Koh’s nomination.

Dean Koh’s sterling character and unparalleled professional accomplishments speak for themselves. The baseless and base criticisms against Dean Koh in recent weeks are ideologically driven attacks that have no bearing on his qualifications and his ability to tender sound legal advice to the Secretary of State in the national interest. While critics have characterized Dean Koh as seeking to replace the U.S. Constitution and domestic democratic processes with international and foreign law, the criticism falls wide of the mark. Throughout his career, Dean Koh has always maintained that construing the Constitution is a domestic endeavor. His belief that international law can serve as a useful guide in the interpretive task for the branches of Government and all the citizenry is consistent with the Constitution itself and the original intent of the Framers. Dean’s Koh’s position that the Executive is subject to checks and balances is also grounded in the Constitution. These principles are well within the mainstream of legal thinking and judicial precedent. While Dean Koh has at times criticized certain acts of the Executive Branch, his criticisms result from searching legal analysis, without regard to whether or not his judgments are popular or politically expedient.

We now turn briefly to recent criticism levied against Dean Koh based upon his position on the domestic impact of customary international law — international rules developed through the practice of nation-states when this practice reflects a sense of legal obligation. This criticism mischaracterizes Dean Koh’s work and disregards well-recognized and long-standing practice.

For over two centuries, all three branches of our national Government have recognized the authority of the judiciary to incorporate certain rules of customary international law (or, the law of nations) as federal common law. Customary international norms include basic rules regulating international commerce, foreign state and official immunities, and the treatment of combatants and non-combatants during armed conflicts.

As in other areas, such as admiralty and interstate boundary disputes, in foreign relations, the federal courts occasionally “make” binding rules in areas of high federal interest, even though Congress has not spoken or has spoken ambiguously. As Justice Scalia has observed “a few areas, involving ‘uniquely federal interests,’ are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced … (absent explicit statutory directive) by the courts-so-called ‘federal common law.” Boyle v. United Technologies Corp. Article III of the Constitution not only grants the national courts judicial power in cases arising under the Constitution, U.S. statutes and treaties, it also extends judicial power to the international arena: cases affecting Ambassadors, public Ministers and consuls, admiralty and maritime cases, and cases involving foreign states, citizens, or subjects. In 1900, the Supreme Court found that customary international law “is part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction” in the Paquete Habana case. Courts have routinely followed this commonsense approach, applying customary international law in domestic cases in the exercise of their judicial power.

Some critics have attacked Koh’s nomination based on his reasonable support for judges’ routine application of customary international law, claiming these judges are undermining the democratic processes. Indeed, customary international law bears the hallmark of democratic legitimacy. The United States is a key participant in the consensus building process inherent in the creation of customary norms, and so prevailing customary international norms are fashioned with the input of both elected and appointed officials, who represent their constituents at home. Because the political branches have the opportunity to contribute to the formation of customary law, according to historical practice, federal courts can incorporate a customary norm into federal common law. As with other areas of federal common law, the judicial incorporation of customary international norms into U.S. law supplements federal legislation — it does not usurp legislative power or contravene democratic principles. In any event, as Dean Koh acknowledges, Congress may override a customary international law norm (at least where the norm has not obtained jus cogens status) where Congress’s intent is clear, thereby addressing any concern regarding democratic oversight.

Across party lines, the Executive Branch has provided ongoing support for this conception of customary international law. During the Nixon, Carter, and Clinton Administrations the United States filed amicus briefs urging courts to adopt a rule of customary international law as a federal rule of decision in certain cases. This well-established formulation of customary international law has shaped judicial precedent and federal policy since our nation’s founding. Indeed, the most recent Bush Administration has also relied on principles of customary international law. Dean Koh’s predecessor as Legal Adviser, John Bellinger, has stated that “the immunities of foreign government officials generally derive from federal common law as informed by international custom.” Bellinger further confirmed that this approach is “consistent with the position taken by the United States on behalf of its own official when they are sued abroad.”

In addition to being the accepted, mainstream view across party lines, Dean Koh’s position that customary international law has the status of federal law is deeply rooted in history, tradition and judicial precedent. The Supreme Court has recently reaffirmed the role of customary international law in Hamdan v. Rumsfeld, recognizing that the legal process afforded to Hamdan had to comply with customary international law norms. In particular, the Court found that the text of Common Article 3 of the Geneva Convention had to be interpreted “to incorporate at least the barest of trial protections recognized by customary international law.” The Convention requires that trials provide “all the judicial guarantees which are recognized as indispensable by civilized peoples” but does not define those guarantees. Looking to customary international law to play a practical gap-filling function, the Court held that the Military Order at issue did not allow Hamdan to be present for his trial or to access evidence against him, “principles which are indisputably part of customary international law.” The majority noted that there may be legitimate reasons to withhold evidence, but absent a statutory provision to the contrary, information used to convict a person of a crime must be disclosed to him.

If anything, Dean Koh’s approach to the incorporation of customary international law norms into federal common law has been cautious and prudent. Koh supports the incorporation of “bona fide rules of customary international law,” where there is consensus around these norms and where “norms that have sufficiently crystallized,” noting that “insofar as customary international law rules arise from traditional State practice, the United States has been, for most of this century, the world’s primary maker of and participant in this practice.” Such a principled approach prevents the incorporation of nascent or outlier norms. Indeed, the recognized customary international law rules regarding human rights are few and compelling, including such egregious violations as genocide, extrajudicial murder, torture, and slavery.

The complex economic problems we face today are of unprecedented scope and require principled and balanced solutions from steady, seasoned hands. Harold Koh is the ideal candidate to guide the State Department in shaping these solutions in a manner consistent with the rule of law and justice. By confirming Harold Koh as Legal Adviser, you will take a much needed step in securing the rule of law at home and abroad and restoring the United States’ reputation as a moral world leader.


Sincerely,


Martin Flaherty
Leitner Family Professor of International Human Rights; Co-Director, Leitner Center for International Law and Justice

Tracy Higgins
Professor of Law; Co-Director, Leitner Center for International Law and Justice

Jeanmarie Fenrich
Executive Director, Leitner Center for International Law and Justice

Paolo Galizzi
Clinical Associate Professor of Law; Director, Sustainable Development Legal Initiative

Chi Mgbako
Clinical Associate Professor of Law, Walter Leitner International Human Rights Clinic

Thomas H. Lee
Leitner Family Professor of International Law; Director, Center for International Security and Humanitarian Law

Catherine Powell
Associate Professor of Law
Director, International Law and the Constitution Initiative

Gráinne de Búrca
Professor of Law

Jim Leitner
Alumni Trustee, Leitner Center for International Law and Justice


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