This column originally appeared in American Thinker on April 19, 2009
The pain of facing criminal prosecution in Spain has ended for six senior Bush administration officials who allegedly provided “legal cover for the torture of terror suspects at Guantanamo Bay,” according to The Washington Post. What remains of greater concern for all Americans is the core legal philosophy behind the prosecution and Harold Hongju Koh, President Barack Obama’s nominee to be legal advisor to the U.S. Department of State.
No. 1: On January 22, Obama signed an executive order to close the U.S. military detention center at Guantanamo Bay, Cuba. He has repeatedly accused or implied that the Bush administration routinely “tortured” suspected terrorist detainees at Gitmo in violation of U.S. and international law.
No. 2: On March 31, Obama nominated Koh, dean of Yale Law School. Koh served as Assistant Secretary of State for Democracy, Human Rights and Labor in the Clinton administration. Koh’s extensive writings, lectures, legal work, and deanship at Yale are those of a committed and aggressive advocate of “transnationalism.” Koh’s jurisprudence is fully supported by Obama and Sec. of State Hillary Clinton.
Koh wants “customary international law,” and “customary international norms” to be “internalized” into our foreign policy, federal statutes and our Constitution. In his essay, How International Human Rights Law is Enforced, 74 Ind. L.J. 1397, 1409 (1999), Koh argues that “internalization” of foreign law into U.S. law can be accomplished “through executive action, legislative action, judicial interpretation, or some combination of the three.” Koh explained his theory in a lecture at Fordham Law School. [Forward video to 13 minutes.]
Koh is a fervent critic of the Bush administration, and has pushed to close Gitmo for several years. According to Fox News, Koh wrote in an article published in May 2006 in the Indiana Law Journal: “We should resist the claim that a War on Terror permits the commander in chief’s power to be expanded into a wanton power to act as torturer in chief.” Koh “told a 2005 Senate hearing that a Justice Department memo authorizing harsh interrogation methods was, a stain on our law, a stain on our national reputation.'”
Ed Whelan’s series about Koh posted on National Review’s “bench memo” blog, quotes Koh on the contrast between our American political and legal system and transnationalism. John Fonte, senior fellow at the Hudson Institute, characterizes Koh’s nomination as an assault on American sovereignty:
The Transnational Progressive assault on the sovereignty of the American liberal democratic nation-state has just kicked into high gear with the nomination by the Obama administration of Yale Law School Dean Harold Koh to be the Legal Advisor to the U.S. State Department. Dean Koh wants to “trigger a transnational legal process” that will “generate legal interpretations that in turn can be internalized into domestic law.” Put simply, he favors opening a transnational legal space beyond the Constitution and the democratic decision-making process of our liberal democracy.
In Fonte’s essay, Global Governance vs. the Liberal Democratic Nation-State: What Is the Best Regime?, he expands on Koh’s radicalism, and explains Koh’s strategy to transnationalize the U.S. system:
Koh’s proposed remedy to American exceptionalism is for “American lawyers, scholars and activists” to “trigger a transnational legal process,” of “transnational interactions” that will “generate legal interpretations that can in turn be internalized into the domestic law of even resistant nation-states.” For example, Koh suggests that, “human rights advocates” should litigate “not just in domestic courts, but simultaneously before foreign and international arenas.”
No. 3: On March 28, “Madrid” lawyer, Gonzalo Boye, filed a complaint in Spain accusing former Bush advisors, Attorney General Alberto Gonzales, Undersecretary of Defense Douglas Feith; former Vice President Dick Cheney’s chief of staff, David Addington; Justice Department officials John Yoo and Jay S. Bybee; and Pentagon lawyer William Haynes, of enabling the torture of five Spanish citizens or residents while they were held at Gitmo. Boye claims Bush’s advisors violated international law by “approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.”
Andrew McCarthy’s column, “Spain’s Universal Jurisdiction’ Power Play,” for NRO exposes Boye as an ex-felon, Chilean terrorist sentenced to 10 years in prison for kidnapping and holding for ransom a Spanish businessman for 249 days.
No. 4: Judge Baltazar Garzón investigated Boye’s complaint, and sought an indictment in Spain claiming “universal jurisdiction,” which is consistent with Koh’s transnationalism. Both Garzón and Koh have sought closure of Gitmo for years.
Garzón had indicted the same five complainants for terrorism who are accusing Bush’s advisors. However, Garzón dismissed the cases after Spain’s Supreme Court ruled that evidence obtained under torture was not admissible because it’s unreliable.
Since none of Bush’s advisors is alleged to have tortured or ordered anybody to be tortured, Spanish prosecutors rightly kicked Boye’s kangaroo court complaint into a legal twilight zone. The reasons to dismiss the complaints based on U.S. law are even more compelling:
On June 3, 1994, the U.S. advised the UN Secretary General that “… nothing in this Convention [Against Torture] requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.” [Italics in original].
By Feb. 5, 2001, the U.S. had reserved its obligation under The Convention Against Torture to prevent or punish “cruel, inhuman or degrading treatment or punishment,’ only insofar as the term cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
Section 2340 of the federal criminal code defines torture as a government act “specifically intended to inflict severe physical or mental pain or suffering.”
Section 1003 of the Detainee Treatment Act of 2005 incorporates the same definition as the Convention, which “shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.”
Put simply, Bush’s advisors couldn’t “abandon” or “violate” a definition of torture that the U.S. hasn’t adopted. The U.S. Constitution is the “supreme law of the land,” not treaties, foreign law, or customary international law or norms.
On Thursday, “Obama assured CIA operatives they would not be prosecuted for their rough interrogation tactics, and his attorney general offered them legal help if anyone else takes them to court over methods approved by the Bush administration.” The offer didn’t include Bush’s advisors.
A few hours after the Spanish prosecutors announced their decision, “Garzon formally handed the case to a board of National Court magistrates that will decide which judge should handle the matter.” Nonetheless, we shouldn’t be surprised, if Boye or Garzón seek an indictment in the International Criminal Court, which would be consistent with Koh’s “transnationalism”:
Supporters of the International Criminal Court should, Koh recommends, “provoke interactions between the United States government and the ICC” that might lead to the US becoming enmeshed in the ICC process (by, for example, having the US provide evidence in ICC trials). These interactions with the ICC would show cooperation with the tribunal and therefore “could be used to undermine” the official US “unsigning” of the treaty because it might “constitute a de-facto repudiation” of the “act of unsignature.”
During his confirmation process, U.S. Senators should ask Koh at least one of the questions raised by his former law student, Julian Ku:
Universal jurisdiction has also been the basis for or potential prosecutions of Israeli officials involved in military operations in the Gaza Strip. Given your past advocacy of transnational legal processes and the invocation of universal jurisdiction in the United States under the Alien Tort Statute, do you believe it is appropriate for Spain to open that investigation into U.S. officials? At what point would it be appropriate for the United States to protest such an investigation?
Perhaps, like Eliza Doolittle, Americans will get it, and defeat Koh’s confirmation. His anti-nationalist legal theories should remain chiefly in Koh’s brain, away from the plain of American law and foreign policy.