Conservatives pundits and media have been sounding alarm bells about President Obama’s nomination of transnationalism-touting Yale Law School Dean Harold Koh to be the State Department’s top legal adviser. But even Newsweek’s balanced piece on the Koh nomination (April 27 issue), which concludes that he should be confirmed, enumerates plenty of reasons to be alarmed. Consider the following excerpts:
Koh argues that American law should reflect "transnational" legal values.
Were his writings to become policy, judges might have the power to use debatable interpretations of treaties and "customary international law" to override a wide array of federal and state laws.
[T]aken to their logical extreme [Koh’s views] could erode American democracy and sovereignty.
Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment's guarantee of free speech—to better conform to the laws of other nations.
He has campaigned to write into U.S. law the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," … A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles").
Adoption of his ideas could expose U.S. companies to multibillion-dollar liabilities merely for doing business in countries run by human-rights violators … [and could mean] extraditing American officials to be tried as war criminals.
In 2004, Koh asserted that President Bush (by invading Iraq and flouting the Geneva accords) had put the United States into an "axis of disobedience" to international law along with North Korea and Saddam Hussein's Iraq.
Koh and the other "transnationalists" are using their legal theories to advance a political agenda. The international legal norms they wish to inject into American law by and large reflect the values of Social Democratic Europe and liberal American academics. Koh is not suggesting, for instance, that American judges adapt Islamic law that discriminates against women.