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June 23, 2009


WASHINGTON, D.C. – Today, Senator Jim Inhofe (R-Okla.) spoke on the Senate floor in regards to the nomination of Harold Koh, President Obama’s nominee to the position of legal advisor at the State Department.

Inhofe Full Statement (As Prepared For Delivery):

MR. INHOFE. Mr. President, I understand that cloture has been filed on Harold Koh, President Obama’s nominee to the position of legal advisor at the State Department. I wanted to come and register my strong opposition and assure the American people that their representatives in Congress are not going to let this nominee sail through unopposed, and to let them know that there are some of us here in the Senate who will require full and extensive debate before this nominee receives a vote.

As legal advisor at the State Department, Koh would be advising the Secretary of State on the legality of U.S. action in the international forum, and interpreting and advocating for international law and treaties. The significance of this position and its effect on our sovereignty and security should not be underestimated.

Koh is a self proclaimed “transnationalist.” Adherents to this school of thought believe that international law is equal to or should take precedence over domestic law, and international court rulings have equal authority to the decisions of a representative government. Koh’s transnational principles could have serious implications on U.S. sovereignty, especially regarding the authorization of the use of force, the prosecution of the War on Terror, gun rights, and abortion. Koh believes a nation who goes to war must have UN Security Council authorization, going as far as writing that the U.S. was part of an “axis of disobedience” by invading Iraq. In October 2002, Koh wrote, “I believe…that it would be a mistake for our country to attack Iraq without explicit U.N. authorization, because such an attack would violate international law.” Additionally, he supports ratification of the International Criminal Court, which could subject our troops to prosecution in a foreign court.

Implementation of this interpretation of international law raises a number of alarming questions. If the U.S. is required to gain U.N. authorization for military action, what punitive actions might the U.S. be subject to if it unilaterally uses pre-emptive force? Would our Navy Seals have had to wait for authorization from an international body before rescuing the American being held hostage off the Horn of Africa?

In 1992, George Will said, “There may come a time when the United States will be held hostage to…the idea that the legitimacy of U.S. force is directly proportional to the number of nations condoning it.”  I hope that day never comes. The decisions made to protect our great nation should not be made by members of an international body but by men and women who were elected by the people. 

Equally concerning is Koh’s treatment towards the Department of Defense’s recruiting efforts. In October 2003, Koh led a team of Yale Law faculty in filing an amicus brief in support of a lawsuit against the U.S. Department of Defense, claiming the Solomon Amendment was unconstitutional.  The Supreme Court rejected Koh’s arguments unanimously.  Writing for the Court, Chief Justice Roberts stated: “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”

Further, Koh supports accession to the International Criminal Court (ICC), the United Nations Convention on the Law of the Sea (LOST), the United Nations Convention on the Rights of the Child, and the Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms (CIFTA). All of these treaties will greatly impact the lives of everyday Americans, and will require the United States to alter its domestic law to meet their respective parameters.

In 2002, Koh spoke at Fordham University Law School on “A World Drowning in Guns.” His speech was published in the Fordham Law Review. Koh’s topic was the international arms trade, but as usual his analysis had serious domestic implications.  Koh wrote that “American legal scholars” should pursue “the analysis and development of legal and policy arguments regarding international gun controls” through “constitutional research on the Second Amendment.” Restated, Koh believes that the best way to regulate guns in America is through international law, through a global gun control regime.

As legal adviser, Koh would be in a position to pass judgment on whether a proposed treaty would raise legal issues for the United States, including issues related to the Second Amendment.  He would therefore be able to endorse treaties that could be used by the courts to restrict the individual right to bear arms, an idea that he is clearly and openly in favor of.

It is simply not true to say that his beliefs about gun control, or the Second Amendment, don’t matter because he’ll be in the State Department advising on international law.  On the contrary, he wants to use international law to restrict Constitutional freedoms in this country.  In his position, he will have the power to advise the administration and to testify before the Senate about what reservations might be needed when ratifying a treaty to protect Constitutional freedoms.  However, he has a history of advocating for treaties without conditions, and cannot be trusted to express reservations with treaties that I believe will negatively impact everyday Americans. The fact that he’s in the State Department doesn’t make him safe, it makes him dangerous.  It is exactly where, with the possible exception of the Supreme Court, he wants to be.

This is not an accident.  It is his strategy.  He realizes he cannot achieve his goals through legislation, so he has turned to international law.  If he can establish that international law is binding on the U.S., regardless of whether the Senate has ratified the treaty in question, activists can avoid Congress and work the issue through the courts. If you believe that the Second Amendment confers an individual right to bear arms up on the American people, then I urge you to reaffirm that principle by voting against Harold Koh. And if you believe that our nation should be subjected by a variety of treaties that threaten our national sovereignty and American way of life, then I urge you to reaffirm those values by voting against this nominee.

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