A Teleconference With Andy McCarthy and Ed Whelan About Harold Koh

Barack Obama has nominated Harold Koh to be the State Department legal adviser to the full Senate. Koh’s views are virulently anti-American and run directly counter to the Constitution, but unless something changes, a man who does not have this country’s best interests at heart is going to be in a position where he can do tremendous damage to this nation. The only suggestion I can make is to call your senators, whether Republican or Democrats, and tell them to vote “no” on Koh.

What follows are the notes, not quotes from the teleconference.

Opening Statement

Andy McCarthy: Dean Koh is a post-sovereign transnationalist. I believe American jurisprudence is built on national sovereignty and Koh would mark a radical shift. He views are the US as just one nation out of 192, governed under the whims of human rights law.

Ed Whelan: Koh is a radical transnationalist. He wants to supplant American law with foreign law. He wants the Supreme Court to interpret the Constitution to allow foreign law to apply. He wants to erode our rights. He also wants to create new liberal rights in the constitution that don’t exist. He wants to use self-executing treaties to limit American rights. Koh believes that even if we reject the terms of a treaty, that the treaty can be enforced on us anyway.

He rejects the idea that Americans can promote our own interests. He’s fine with allowing foreign countries to prosecute American officials. As the State Department’s top lawyer, he would have the ability to implement these views. He would be a major player in intragency disputes.

The Q & A Session

In light of the events of the day, with the desire to bomb a Jewish synagogue, what do you think?

The threat is still real. If people want to say we no longer have a problem because we haven’t had a major attack, this reminds us it’s because our policies have kept us safe. Harold Koh has opposed many of those policies.

Explain Harold Koh’s views on foreign policy.

He has said he believes national sovereignty is obsolete. He has written critically about the very idea of American exceptionalism.

How does he deal with the views across the world that don’t match up with his political views? Why isn’t the Senate making a bigger stink?

He has a selective approach. He is interested in advancing foreign law only when it helps with a leftist agenda. There is only one Republican in the Foreign Relations Committee who voted him out: Richard Lugar. The key is to get some of the moderate Democrats to ask if they think he’s fit for his position.

Harold Koh’s position is that the invasion of Iraq is a violation of international law; therefore, it should follow that the senators that voted for it, participated in war crimes. Maybe they should think about that before they confirm him.

What’s the best way to stop what looks like a rubber-stamped nomination of Harold Koh?

I would say Ed’s work on Koh needs to get out there more. Get in touch with your representatives. When we have Republican nominees, Democrats have no problem making policy the be all and end all of the argument. They will even go for personal attacks to stop it — but, we can no longer go along with this traditional notion that as long as someone is intellectually accomplished, that should be enough for us. These policies, particularly in a time of war, are of monumental importance. We can’t tolerate a situation where we say, “We disagree with him fundamentally, but we’re going to vote for him anyway.”

(Whelan)…I don’t think Obama knows what he has with Koh. He’s Hillary Clinton’s pick and he is going to pose real problems for Obama. I think if push comes to shove, Obama is not going to fight for this guy.

Can we get on an alert email list on this one?

nokoh.com. Go there. You can get everything there.

In 2003, Harold Koh gave a speech saying he left global gun control on the table, but he wanted to get back to it. How does he impact gun rights?

Koh is extremely hostile to 2nd Amendment rights & the death penalty.

…The 5 justices from Heller are not going to be there forever and Obama may get to replace some of them. This transnational approach is a way to erode our laws and make us more like Europe.

Cheney just talked about prosecuting officials. Could Koh play a role in that?

Most of that talk has come from a talk over waterboarding. I have trouble thinking any competent prosecutor would bring a case against a Bush official over waterboarding. Three weeks ago, Holder’s Justice Department filed a brief saying you can’t be guilty of torture unless you have motive to torture the victim.

…When this Spanish judge wanted to go after our soldiers, what did the Obama Administration have to say? Nothing. That reflects their transnationalist mentality.

What does this say about Obama and what does it say about the upcoming Supreme Court fight?

(McCarthy) I think Koh is very simpatico with Obama. Obama has very transnationalist roots and radical associations. It’s not that much of a surprise. I’m not surprised he selected Koh. I think they’re on the same page on those issues.

(Whelan) I think Obama’s instincts are all bad. I don’t think he understands you can be a full citizen of the US and the world without some extreme tensions there.

On the Supreme Court, I think the Left is looking for justices who want to use transnational law to redefine the Constitution and they are likely to get that.

On the 2nd Amendment, he will claim there is an international right to gun control. He also thinks federal courts in the US have to obey international law.

I think he is willing to do that.

Do we know his views on Shariah Law?

I think his comments there are not clearly established. I think he’s blind to the threat and blind to what the weakening of American sovereignty can do.

I think you can make the point on that by pointing to the UN case on the Israeli fence. That’s the sort of thing Koh wants us to do. Israel was hauled in without its consent and they issued a decision that a fence that reduced terrorist attacks 95% was a violation of international law and a war crime.

Let’s stick to our best arguments and put out nothing that allows Koh to present himself as a false victim of a Shariah attack.

Where is the Senate going on this?

I think there are 20-30 senators who will probably reflexively oppose him, but whether there are significant numbers beyond that who will oppose Koh and maintain a filibuster is unknown. We are hoping to get him filibustered.

…I hope we get 51 votes against him. To do that, we need to get moderate Democrats voting against him.

How would Koh mean that our troops would be put under control of the UN? How would this also influence our work with foreign intelligence agencies?

Koh is savvy, determined, he will play hardball and the results will be ugly.

With foreign intelligence agencies, Koh can’t help. Koh is even more extreme about putting terrorists into the legal system than Obama. It would be an information treasure trove for terrorists and that will prevent foreign intelligence agencies from cooperating with us covertly.

Would having Koh in there benefit the Global Jihad?

They have been trying to kill us and will continue to try to kill us.

Summary: Call both of your senators. Tell them that you would be very upset if they voted to confirm a man like Harold Koh.

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