Harold Koh's opinions on sharia, campus military recruitment draw criticism

The list of controversial appointments made by President Barack Obama just got longer. According to critics, jurist and self-described “activist” Harold Koh’s controversial opinions should raise red flags about the man pegged to become the State Department’s top legal advisor.

Until recently, Harold Koh served as the head of Yale Law School. In that prominent and influential position, Koh offered opinions that indicate his staunch “transnationalist” views; that is; Koh believes that distinctions between U.S. law and international law should be eliminated – inevitably in favor of the latter’s latest anti-American whims.

For example, explained Meghan Clyne in the New York Post, “If Canada, the European Human Rights Commission and the United Nations all say gay marriage should be legal -- well, then, it should be legal in California too, regardless of what the state's voters and elected representatives might say.”

Vocal critics such as Frank Gaffney Jr. of the Center for Security Policy say that Koh “favors U.S. submission to the International Criminal Court.”

According to Gaffney, Koh “has been an unalloyed enthusiast” for the “lawfare” being practiced abroad by provocateurs like Spanish judge Baltasar Garzon, who wants to prosecute former Bush advisors for allegedly permitting “torture” at Guantanamo Bay prison.

“Koh insisted that Guantanamo Bay be closed, coercive interrogation techniques be halted,” Gaffney has written, “and trials in civilian U.S. courts be afforded to captured enemy combatants.”

According to his writings, Harold Koh thinks it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” when “American legal rules seem to parallel those of other nations”; when “foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances”; and “when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard”.

Koh has condemned President Bush’s “war on terror” as “obsessive” and referred to North Korea, Iraq and America as “the axis of disobedience” due to their alleged flouting of international law.

In one particularly disturbing statement in 1994, he described his ideal SCOTUS Justice: “I'd rather have [former Supreme Court Justice Harry] Blackmun, who uses the wrong reasoning in Roe [v. Wade] to get the right results, and let other people figure out the right reasoning.”

Koh is also against the death penalty, writing in 2002:

“The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason, the death penalty should, in time, be declared in violation of the Eighth Amendment.”

One alleged statement of Koh’s has attracted considerable attention this week, as the New York Post reported on Koh’s supposed support of employing Islamic “sharia” law to decide American cases:

A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that “in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States.”

Prominent scholar of Islamic extremism Daniel Pipes took particular interest in this reported statement and elaborated on the incident at his website, writing:

“The day may have arrived when Americans, like Britons and the Dutch, have to stave off their establishment advocating Shari'a. It's a dark day, indeed. The Senate must reject Harold Koh as State's legal advisor.”

Columnist David Limbaugh did some digging and found a letter that added some credence to Stein’s claims, and added that Stein's representations of Koh's remarks were “certainly consistent with Koh's writings that I reviewed.”

Steven Groves, Bernard and Barbara Lomas Fellow at the Heritage Foundation’s Margaret Thatcher Center for Freedom, told me that Koh would be a “problem” as the top legal advisor at the State Department, “because of the nature of the job.”

The position, Groves explained, “is not a desk job where someone writes legal opinions for the President. He travels the world as the voice of America in terms of legal issues. He goes to conferences and large UN gatherings, and helps negotiate treaties."

As the de facto public face of American jurisprudence for the rest of the world, Koh would be in a sensitive and highly influential position, and his controversial transnational views would come to be seen as those of the White House and of America as a whole.

“Koh believes in the integration of international legal norms into U.S. domestic law,” says Koh. “He feels it is all right for the Supreme Court to look to the opinions of mankind and foreign courts on reaching their decisions on constitutional issues, rather than just US common law and our legal tradition. Making decisions on delicate social issues and human rights issues is difficult enough without international voices chiming in, and having as much say as U.S. cultural and social norms.”