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S. HRG. 111–931 

NOMINATION 

HEARING 

BEFORE THE

COMMITTEE ON FOREIGN RELATIONS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

APRIL 28, 2009 

Printed for the use of the Committee on Foreign Relations 

( 

Available via the World Wide Web: 

http://www.fdsys.gpo.gov 

COMMITTEE ON FOREIGN RELATIONS

JOHN F. KERRY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut 

RUSSELL D. FEINGOLD, Wisconsin 

BARBARA BOXER, California 

ROBERT MENENDEZ, New Jersey 

BENJAMIN L. CARDIN, Maryland 

ROBERT P. CASEY, JR., Pennsylvania 

JIM WEBB, Virginia 

JEANNE SHAHEEN, New Hampshire 

EDWARD E. KAUFMAN, Delaware 

KIRSTEN E. GILLIBRAND, New York 

RICHARD G. LUGAR, Indiana 

Republican Leader designee 

BOB CORKER, Tennessee 

JOHNNY ISAKSON, Georgia 

JAMES E. RISCH, Idaho 

JIM DEMINT, South Carolina 

JOHN BARRASSO, Wyoming 

ROGER F. WICKER, Mississippi 

DAVID MCKEAN, Staff Director

KENNETH A. MYERS, JR., Republican Staff Director

(II)

C O N T E N T S 

Page 

Kerry, Hon. John F., U.S. Senator from Massachusetts ...................................... 1 

Lugar, Hon. Richard G., U.S. Senator from Indiana ............................................ 3 

Lieberman, Hon. Joseph I., U.S. Senator from Connecticut ................................ 5 

Prepared statement .......................................................................................... 5 

Dodd, Hon. Christopher J., U.S. Senator from Connecticut ................................

Koh, Hon. Harold H., Nominated to be Legal Advisor to the Department 

of State .................................................................................................................. 9 

Prepared statement .......................................................................................... 10 

Responses of Legal Adviser-Designate Koh to Questions Submitted for the 

Record by Members of the Committee ............................................................... 33 

(III)

(1) 

NOMINATION 

TUESDAY, APRIL 28, 2009 

U.S. SENATE, 

COMMITTEE ON FOREIGN RELATIONS, 

Washington, DC. 

Harold H. Koh to be Legal Adviser to the Department of State 

The committee met, pursuant to notice, at 2:20 p.m., in room 

SD–419, Dirksen Senate Office Building, Hon. John F. Kerry 

(chairman of the committee) presiding. 

Members present: Senators Kerry, Dodd, Feingold, Shaheen, 

Gillibrand, Lugar, Corker, Isakson, Barrasso, and Wicker. 

Also present: Senator Lieberman. 

OPENING STATEMENT OF HON. JOHN F. KERRY, 

U.S. SENATOR FROM MASSACHUSETTS 

The CHAIRMAN. This hearing will come to order. 

We are here today to consider the nomination of Dean Harold 

Koh to be the legal adviser to the Department of State. 

Dean Koh, thank you so much for being willing to take this on 

and for joining us here today. 

We thank our colleague, Senator Lieberman, for being here and 

I will call on momentarily. 

I see you also have a number of members of your family here, 

and we look forward to your introducing them to the committee in 

a few moments when you give your opening remarks. 

And again, I apologize. I mentioned to Dean Koh before we came 

in here that I have to go down to the White House for a meeting, 

and I have asked Senator Lugar to chair during my absence. And 

I appreciate his willingness to do that and again underscore the 

good bipartisan way in which the committee works. 

Dean Koh is one of the foremost legal scholars in the country, 

and he is a person of the highest intellect, integrity, and character. 

Frankly, we are very fortunate to have such an extraordinarily 

well-qualified candidate for this critical position. 

If confirmed, Dean Koh will be the Secretary of State’s chief legal 

counsel and the top adviser within the executive branch on legal 

matters related to our foreign policy. He will advise on the legal 

aspects of the most complex and important national security matters facing the country, covering issues from detainee policy to 

arms control negotiations. 

Dean Koh brings a very impressive record of achievement to this 

post. He received his law degree from Harvard, where he was an 

2 

editor of the Law Review; two master’s degrees from Oxford University, where he was a Marshall Scholar. And as a young lawyer, 

he clerked on both the D.C. Circuit Court of Appeals and the U.S. 

Supreme Court. 

He served with distinction in both Democratic and Republican 

administrations, beginning his career in Government in the Office 

of Legal Counsel in the Reagan administration. 

Dean Koh left government to teach at Yale Law School, where 

he went on to serve as dean until his nomination to serve in the 

current administration. And as a renowned scholar and leading expert on international law, he has published or coauthored 8 books 

and over 150 articles. 

In addition to his impressive academic resume, Dean Koh comes 

to this nomination and to the job with a firsthand understanding 

of how the State Department works. He served as Assistant Secretary of State for Democracy, Human Rights, and Labor in the 

Clinton administration, a post for which he was unanimously confirmed by the Senate in 1998. 

Throughout his career, Dean Koh has been a fierce defender of 

the rule of law and human rights. A letter in support of Dean Koh 

from former high-ranking military officers was eloquent on this 

point. They wrote, ‘‘Dean Koh understands that it is not a rule of 

law if it is invoked only when it is convenient, and it is not a 

human right if it applies only to some people. He knows that our 

Nation is stronger and safer when our Government adheres to fundamental American values.’’ 

Dean Koh understands that the United States benefits as much 

or more than any country from an international system governed 

by the rule of law. He also recognizes the United States must play 

its part by respecting its international obligations. 

At the same time, his personal commitment to America’s security 

and to the defense of our Constitution are indisputable. It is no 

surprise that not everyone will agree with Dean Koh, who often 

tackles controversial issues. But accusations that his views on 

international or foreign law would undermine the Constitution, 

which some have suggested, are simply unjustified. 

As Dean Koh explained in response to a question from Senator 

Lugar on the use of foreign law in constitutional interpretation, 

‘‘My family settled here in part to escape from oppressive foreign 

law, and it was America’s law and commitment to human rights 

that drew us here and have given me every privilege in my life 

that I enjoy. My life’s work represents the lessons learned from 

that experience. Throughout my career, both in and out of Government, I have argued that the U.S. Constitution is the ultimate controlling law in the United States, and the Constitution directs 

whether and to what extent international law should guide courts 

and policymakers.’’ 

While disagreements on legal theory are perfectly legitimate, 

frankly, some of the attacks against Dean Koh on the Internet and 

in some media outlets are beyond the pale. Some have actually alleged that he is against Mothers Day. Now I am sure that Professor Koh’s mother, who is here in the front row, will be very, very 

happy to set the record straight on that. [Laughter.] 

3 

Regardless of any policy differences, we should all be able to 

agree on Dean Koh’s obvious competence to serve in the post for 

which the President has chosen him. In fact, we have received an 

outpouring of support from this nomination from all over. We have 

heard from over 600 law professors, over 100 law school deans, 

over 40 members of the clergy, 7 former State Department legal advisers, the Society of American Law Teachers, the Lawyers Committee for Human Rights, and many others. 

Perhaps most remarkable has been the enthusiastic support from 

those who don’t necessarily see eye to eye with Dean Koh but still 

felt compelled to speak out publicly on his behalf, including former 

Solicitor General Ted Olson and former White House Chief of Staff 

Joshua Bolten. 

In fact, no less a conservative legal authority than Kenneth Starr 

wrote that, ‘‘The President’s nomination of Harold Koh deserves to 

be honored and respected. For our part, as Americans who love our 

country, we should be grateful that such an extraordinarily talented lawyer and scholar is willing to leave the deanship at his beloved Yale Law School and take on this important, but sacrificial 

form of service to our Nation.’’ 

I hope we can minimize the sacrificial component of that. 

[Laughter.] 

So while I understand there will be healthy debate on Dean 

Koh’s nomination, it is really clear that Dean Koh is widely respected across the legal and political spectrum. He is unquestionably qualified for this position, and I urge my colleagues to support 

his nomination. 

With that, I turn over to Senator Lugar for his opening statement, and then we will welcome Senator Lieberman. I don’t know 

if Senator Dodd is coming over or not. 

And Dean, I hope you will sort of keep your summary—I think 

it would be best just to give Senators an opportunity to have a 

question period, and we look forward to hearing from you, too. 

Thank you. 

Senator Lugar. 

STATEMENT OF HON. RICHARD G. LUGAR, 

U.S. SENATOR FROM INDIANA 

Senator LUGAR. Mr. Chairman, today the committee meets to 

consider the nomination of Harold Koh to be legal adviser to the 

Department of State. 

As you have pointed out, he has had a distinguished career as 

a scholar, teacher, and advocate. He is dean of one of the Nation’s 

leading law schools. He has written widely on issues of constitutional and international law. 

Dean Koh has been a strong advocate on questions of human 

rights, including representing Haitian and Cuban asylum seekers 

and filing numerous friend of the court briefs in a range of cases 

involving human rights issues. 

He enjoys support from lawyers he has worked with on these 

matters, as well as those including former Solicitor General Kenneth Starr, whom he has litigated against in these cases. He has 

also worked on human rights issues in Government, having served 

4 

as Assistant Secretary of State for Democracy, Labor, and Human 

Rights from 1998 to 2001. 

If confirmed, Dean Koh will be the principal source of legal advice for the Secretary of State and other State Department officials. 

This will involve a different kind of role from that of a professor 

or an issue advocate. 

A legal adviser’s primary role is to provide objective advice on 

legal issues, not to advocate for particular policy outcomes. A legal 

adviser must be prepared to defend the policies and interests of the 

U.S. Government even when they may be at odds with his personal 

preferences or positions he has taken in a private capacity. 

In applying laws applicable to the State Department’s work, the 

legal adviser must take account of and respect prior U.S. Government interpretations and practices under those laws rather than 

considering each such issue as a matter of first impression. A legal 

adviser must also be a practical problem solver, employing legal 

tools and methods to assist policymakers in achieving desired policy goals in our national interest. 

These considerations are particularly critical in light of the range 

of important issues that will face the next legal adviser. He will advise on questions of U.S. and international law applicable to ongoing military operations in Iraq and Afghanistan and broader U.S. 

efforts to combat terrorism. 

He will provide guidance to U.S. treaty negotiators involved in 

efforts to conclude an extension of the START treaty with Russia 

and a potential multilateral instrument to address global climate 

change. He will also have a lead role in interpreting and promoting 

implementation of the broad range of treaties and international 

agreements to which the United States is already a party. 

In the course of these responsibilities, the next legal adviser 

must work closely with this committee and with other Members of 

the Senate. On treaty matters in particular, effective cooperation 

between the administration and this committee is essential to the 

development, adoption, and implementation of agreements that will 

advance United States interests. 

The power to make treaties is shared between the executive 

branch and the Senate, and prospects for securing Senate advice 

and consent to treaties are greatly enhanced when the executive 

branch consults with the Senate early and often in the treaty process. 

The committee also has an important role in overseeing the executive branch’s application of treaties to which the Senate has already provided advice and consent, including any proposed changes 

in the interpretation of such treaties. In all of these areas, the legal 

adviser must actively engage with the Senate and with this committee to ensure a smooth treaty process. 

I have had the opportunity to meet with Dean Koh last week as 

part of his confirmation process. I have submitted a series of 40 

questions for the record that he has answered in advance of this 

hearing and which has been made available to committee members 

today. 

I appreciate very much his diligence in answering these extensive questions in a timely manner. His responses to these questions 

were posted on my Web site last Friday and have been made availVerDate Nov 24 2008 12:26 Apr 01, 2011 Jkt 062931 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\HEARING FILES\111TH CONGRESS\NOMINATION HEARINGS THAT WE WILL PRINT\0
5 

able to all members of the committee. I hope this material will be 

helpful to members as they consider Dean Koh’s nomination, and 

I look forward to our discussion with our distinguished nominee 

today. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Lugar. 

Senator Lieberman, thanks so much for being here with us. I 

know you care passionately about the Yale Law School, among 

other things, and so we welcome your comments of introduction. 

STATEMENT OF HON. JOSEPH I. LIEBERMAN, 

U.S. SENATOR FROM CONNECTICUT 

Senator LIEBERMAN. Thanks, Mr. Chairman. 

As they said in the Dartmouth College case, it is a small law 

school, but there are those of us who love it. Or something like 

that. [Laughter.] 

Mr. Chairman, Senator Lugar, members of the committee, I am 

honored to be before you to introduce Harold Hongju Koh of New 

Haven, CT. 

Mr. Chairman, Senator Lugar, you have spoken so well and 

made many of the points that I wanted to make, I am going to, 

with your permission, include my full statement in the record and 

just speak to you a bit about Harold Koh. 

[The prepared statement of Senator Lieberman follows:] 

PREPARED STATEMENT OF HON. JOSEPH I. LIEBERMAN, 

U.S. SENATOR FROM CONNECTICUT

Mr. Chairman, Senator Lugar, honored members of the Senate Foreign Relations 

Committee, thank you very much for the opportunity to join my senior colleague, 

Senator Dodd, today, in introducing Dean Harold Hongju Koh, the President’s nominee to be Legal Adviser to the State Department. 

I have known Dean Koh as both a friend and a neighbor around New Haven for 

many years. He is a truly extraordinary individual and a highly qualified choice for 

this position. 

To state the obvious, Dean Koh is a brilliant scholar—one of the great legal minds 

of his generation—as well as a wonderful teacher, who has inspired countless students to pursue a cause greater than their own self-interest. 

He also has a distinguished record of service in our government, having worked 

in both Democratic and Republican administrations, and consistently won the highest regard from people across the political spectrum for his remarkable intellect and 

ability. It is a reflection of the bipartisan respect for Dean Koh that, when President 

Clinton nominated him to be Assistant Secretary of State for Democracy, Human 

Rights, and Labor 11 years ago, he was unanimously confirmed by a then-Republican-controlled Senate. 

Clearly, Dean Koh will bring extraordinary experience and knowledge of international law to the Office of State Department Legal Adviser. But that is not all 

that he will bring to this position. 

Perhaps even more importantly, Dean Koh will bring an extraordinary devotion 

and dedication to our country and an appreciation of the fundamental values for 

which we stand, drawn from his own personal experience and the experience of his 

beloved family. 

Dean Koh understands the meaning of freedom and the evil of dictatorship. This 

is a lesson that he learned from his parents, who grew up under Japanese colonial 

rule in Korea and then fled from the repressive military government that emerged 

there to the United States. 

It is this experience that helped forge in Dean Koh his lifelong fidelity to democracy and the rule of law, and that inspired him to devote his own life to the cause 

of equality and justice as a lawyer and a law professor. 

In the course of his distinguished career, Dean Koh has authored or coauthored 

eight books and more than 150 articles. He has also occasionally exercised his right 

of free speech. And to tell the truth, in the course of my long friendship with Dean 

6 

Koh, he and I have occasionally come out on opposite ends of an issue. But this has 

never interrupted my respect for him, and his intelligence, his honor, his experience, 

and his good judgment, which will serve him well in the position for which he has 

been nominated. 

And there is absolutely no doubt in my mind that Harold Hongju Koh is profoundly qualified for this position and immensely deserving of confirmation. He is 

not only a great scholar, he is a great American patriot, who is absolutely devoted 

to our Nation’s security and safety. 

Dean Koh is also, as everyone who knows him can attest, a person of surpassing 

warmth, civility, and good humor. 

I think it is worth noting that no one who has ever had the pleasure to work with 

Dean Koh has offered anything other than praise for him personally and support 

for his nomination to this position. In fact, he has won the endorsement of a remarkable bipartisan coalition, including such Republican luminaries as Ted Olson, 

Josh Bolten, and Ken Starr. 

These endorsements reflect the fact that, even those who might not always agree 

with Dean Koh nonetheless recognize and appreciate the integrity, honesty, and graciousness that he will bring to this position. 

As the distinguished members of this committee know, we cannot afford to think 

about the rule of law as a Republican mission or a Democratic mission. It is a 

quintessentially American mission, and for that reason, I very much hope that you 

will favorably report on the nomination of Harold Hongju Koh—a great American— 

to this important post. 

I thank you, Mr. Chairman. 

Senator LIEBERMAN. I have what I take to be the advantage of 

having known Harold as a neighbor and a friend in New Haven for 

a lot of years before he became the famous person at the State Department, the dean of Yale Law School, and now the once more famous and slightly more controversial than I have ever thought of 

him nominee to be the legal adviser to the State Department. 

So I want to say, personally knowing Harold and his family for 

many years, that this is a person of extraordinary warmth, civility, 

honor, graciousness—I mean all of the values that we seek in 

friends and neighbors. And I think while we may not always think 

of those kinds of personal qualities, to me, they are quite relevant. 

And knowing members of this committee, I would guess, in the 

end, they are to you as well. 

Second, as the record speaks, he is a brilliant legal scholar, a 

real authority in the area for which he has been nominated to 

serve as legal adviser. He is one of the world’s foremost experts on 

international law. Harold may actually be qualified for this position! 

Second, on that part, he has a distinguished record of service already in our Government, having worked in both Democratic and 

Republican administrations and consistently won the highest regard from people who worked with him across the widest political 

spectrum. 

Both of you touched, I believe, on another personal factor about 

Harold Koh. He is from an immigrant family, and he has the characteristic immigrant family’s love for America. He is, to use a word 

that we don’t use enough anymore, a patriotic American, both to 

the country and the values that the country is based on. 

His parents came here, like so many before and since, seeking 

freedom, running from the evils of dictatorship. They lived under 

Japanese rule in Korea, which was harsh, and then fled the repressive military Government of Korea for democracy here in America. 

And I think his life’s work, whether you agree or disagree with 

7 

him, on everything he has said about rule of law springs from that 

loyalty and belief in the fundamental values of our country. 

Harold has coauthored or authored 8 books and written more 

than 150 articles. He has also occasionally exercised his right of 

free speech. And there have been occasions when Harold has said 

things or written things that I didn’t agree with. 

I would dare say that—though he is such a gracious man, he 

hasn’t said this to me too often—there have been occasions when 

I have said or done things that he has not agreed with. But this 

has never interrupted my respect for him, for his intelligence, for 

his honor, for his experience, for his good judgment, which will 

serve him well in this position. 

I think anybody who has worked with him, no matter whether 

they have agreed with him or not, have emerged with those same 

good feelings about Harold Koh. And any of you who have the opportunity to get to know him will do the same as well. A person 

of integrity, honesty, and graciousness, couldn’t do better in this 

particular position. 

And I think he will remind us always as we understand that 

there is a lot of partisanship in a lot of different areas that we debate. But there really is no partisanship about the importance of 

the rule of law to our country, and that is what Harold Koh’s service and career has been about. And it is that surpassing priority 

that he will bring to the position of legal adviser to the State Department. 

So I am proud to recommend that you recommend to the full 

Senate that we confirm the nomination of Harold Hongju Koh. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Lieberman. We 

really appreciate that. 

And Senator Dodd, thanks so much for taking time to be here. 

And as a longtime member of this committee, nobody understands 

this task better than you do. So we are delighted to have your 

words of introduction also. 

STATEMENT OF HON. CHRISTOPHER J. DODD, 

U.S. SENATOR FROM CONNECTICUT 

Senator DODD. Well, thank you very much, Mr. Chairman. 

This will be very much an echo in a sense. Having listened to my 

colleague Senator Lieberman speak of Harold Koh, I would just 

want to add my words to his. 

This is an extraordinary opportunity. I think we ought to be 

deeply grateful to the President and to Harold Koh for his willingness to take this on. Rarely do we have an opportunity to have 

someone assume this responsibility with as much talent and ability 

and proven experience in this particular area that Harold Koh 

brings to this nomination. 

As Joe has pointed out, Dean Koh has served in both Democratic 

and Republican administrations. At Yale Law School, Harold Koh 

invited people to campus who represented a wide spectrum of 

views, and this is an indication of the kind of diversity of thought 

he welcomes. This is something that is critical to the role of legal 

adviser to the State Department—to be welcoming of the diversity 

of thought that ought to be brought to the table as we consider the 

8 

role of our country in the ever-growing, more complex global environment that we all operate in. 

Your nomination is an important one, particularly as we confront 

the genocide in Darfur or address Iran’s nuclear programs, the violence on our southern border, or the issue we are all talking about 

today, the swine flu issue. All of these issues that the legal adviser’s office must be ready for, and have the ability to bring all of 

those questions together. 

It is a major law office in the State Department. This is no small 

department that requires the kind of leadership and understanding 

that Harold Koh brings to that job. 

As Joe has pointed out so rightfully, Dean Koh has a remarkable 

family history. There are obviously millions of those stories, but I 

think you must add that story to what this individual has done 

with his life and the difference he has made in the lives of others 

through his service to our country. 

Maybe the word ‘‘patriotic’’ gets used too frequently to describe 

too many people. It appropriately applies to Harold Koh. This is 

truly an American patriot who has taken his life experience, his 

family’s experience, and then applied those experiences to the public service of our Nation, leading a major academic institution on 

which we depend in no small measure, and for promoting the diversity of thought that springs from that institution. 

And so, it is a remarkable chance for all of us to have someone 

with as much talent as Harold has to serve our country. Along the 

way we have gotten to know each other very, very well. I am not 

purely objective about this. 

I have worked with Harold on human rights issues in Connecticut. The institute named for my father at the University of 

Connecticut, which is dedicated to the human rights discipline, is 

one example. Harold has been tremendously helpful and influential 

in shaping that. And so, beyond just a professional awareness of 

someone, I have gotten to know this man personally and well on 

these questions. 

About 20 years ago, we worked together on issues in Haiti, and 

I have worked closely with Dean Koh on this and other issues 

going back many years. So I don’t come to this table in support of 

this nomination based on geography or the fact that we live in the 

same State. I am here because I believe this is a unique opportunity for us to welcome and to celebrate someone who is willing 

to help serve our Nation at a critical moment. 

And so, I am delighted to join Joe in this endorsement of a nomination and would hope the committee in a resounding voice would 

support this nomination. It sends a very important signal at a critical moment that we welcome someone of this ability and talent. 

It doesn’t mean, as Joe has said, you are going to agree with 

every statement or every word that Harold Koh has written. That 

would be silly to suggest so. But to respect that kind of thought 

and that willingness to listen to others and to be a part of shaping 

that debate is something all of us embrace and want to see in people who would assume the job of being legal adviser to the Secretary of State. 

And I thank you for listening. 

9 

The CHAIRMAN. Well, we thank you, Senator Dodd and Senator 

Lieberman, for very personal and important statements of support 

for the nominee. And I know you are both unbelievably pressed 

schedule wise. So we will excuse you at this time. 

Senator DODD. I didn’t introduce your family. Joe, I presume you 

mentioned the family. Did you? 

Mr. KOH. I said a little, but I am going to leave it—— 

Senator DODD. You are going to leave that to Joe. I apologize. 

Nice to see you again. 

The CHAIRMAN. Thanks so much for being here. 

So, Mr. Koh, if you would, we would love to have you introduce 

your family and have a chance to be able to recognize them here, 

and then we look forward to your testimony. 

Thanks. 

Mr. KOH. Thank you, Senator. 

My wife, Mary-Christy Fisher, is the deputy director of New 

Haven Legal Assistance. Senator Dodd was at her office last week. 

My daughter, Emily Koh. My mother, Dr. Hesung Chun Koh. My 

sister, Professor Jean Koh Peters of the Yale Law School. And my 

nephew, Daniel Koh. 

His father, Howard, my brother, is actually nominated to be Assistant Secretary of Health and Human Services. So we are hoping 

that I will be able to come to his confirmation hearing in due 

course. 

The CHAIRMAN. Wow, that is impressive. [Laughter.] 

Well, we look forward to your testimony. Thanks very much. 

Welcome, all of you. We are really delighted to have you here. 

It is a great story, and we are really pleased that you could share 

in this moment. 

Go for it. 

STATEMENT OF HON. HAROLD H. KOH, NOMINATED TO BE 

LEGAL ADVISOR TO THE DEPARTMENT OF STATE 

Mr. KOH. Senator, thank you so much for the opportunity to 

come before you for this hearing. 

Thank you to Senators Dodd and Lieberman. I thank President 

Clinton and—President Obama and Secretary Clinton for entrusting me with this task. And especially my friend of more than 30 

years, Senator Feingold, who has given me such friendship in this 

process. 

I have introduced my family, and I can only say that you have 

recounted my life story. Returning to Government service would 

help me to repay a debt for a life of opportunity that could only 

have happened in America. 

The moment that most brought this home was the summer of 

1974 when President Nixon resigned. I was a college student visiting Seoul. When someone tried to assassinate the President of 

South Korea, army tanks rolled into the streets. And I called my 

father, and I marveled that South Korea had never enjoyed a 

peaceful transition of government, but the world’s most powerful 

government had just changed hands without anyone firing a shot. 

And my father said, ‘‘Now you see the difference. In a democracy, 

if you are President, then the troops obey you. But in a dictatorship, if the troops obey you, then you are President.’’ And it was 

10 

the first time that I fully understood what John Marshall meant 

in Marbury v. Madison, when he said that the Government of the 

United States is a government of laws and not men. 

Promoting a government of laws and serving the Constitution of 

the United States has been the subject of my career to this point, 

which has included four times taking the oath to serve the U.S. 

Government—twice as a law clerk, as an attorney at the Office of 

Legal Counsel, and as Assistant Secretary of State for Democracy, 

Human Rights, and Labor. 

My new assignment, I hope, would continue these lifelong commitments. If confirmed, I would seek to provide to the President 

and to the Secretary the very best legal advice possible and urge 

both our country and others to uphold the rule of law. 

My professor, former legal adviser Abe Chayes once said, ‘‘There 

is nothing wrong with a lawyer holding the United States to its 

own best standards and principles.’’ And I believe that as we confront new challenges showing respect for international law and institutions will make us stronger and safer. 

President Obama pointed this out in his inaugural address. 

When Secretary Clinton recently appeared before this committee, 

she said that U.S. foreign policy should use what she called ‘‘smart 

power, the full range of tools at our disposal,’’ which includes commitment to the rule of law. 

I have spent my career as a scholar and Government lawyer. I 

understand the difference between those roles. For 30 years, I have 

worked with talented and dedicated attorneys from the Legal Advisor’s Office, which I consider to be the preeminent international 

law firm in the world. 

And as I have argued in my scholarship, energy in the executive 

must be accompanied by genuine respect for the constitutional 

function of advice and consent. 

Mr. Chairman, if confirmed, I would be honored once again to 

take the oath to support and defend the Constitution of the United 

States. I assure you, Senator, those are not just words. They are 

my most deeply held convictions. This country gave my family refuge. It gave me the chance to spend my life promoting our commitment to law and to human rights. 

I have learned several crucial lessons. These are the ones which 

have suffused my scholarship. First, that obeying the law is both 

right and smart for nations as well as individuals. Second, respecting constitutional checks and balances in foreign affairs defends 

our Constitution and leads to better foreign policy. Third, making 

and keeping our international promises promotes our sovereignty. 

It does not surrender our sovereignty. It promotes our sovereignty, 

and it makes us safer in a global world. 

Thank you. I look forward to answering your questions. 

[The prepared statement of Mr. Koh follows:] 

PEPARED STATEMENT OF HAROLD H. KOH, NOMINATED TO BE LEGAL

ADVISER, U.S. DEPARTMENT OF STATE

Mr. Chairman, Ranking Member Lugar, and members of the committee, I am 

honored to come before you today as the President’s nominee to serve as Legal 

Adviser of the United States Department of State. I am deeply grateful to President 

Obama and Secretary Clinton for entrusting me with this challenging assignment. 

I would also like to thank Senators Dodd and Lieberman, from my lifelong home 

11 

of Connecticut, and my friend of more than 30 years, Senator Russ Feingold of Wisconsin, for their friendship during this confirmation process. 

Mr. Chairman, let me introduce my wife, Mary-Christy Fisher, my daughter 

Emily, my mother Dr. Hesung Chun Koh, my sister Professor Jean Koh Peters of 

Yale Law School, and my nephew Daniel Koh, who all join me here today. Only my 

son William could not be here, as he will soon enter exam period at his university. 

My family’s love sustains me in all I do, and strengthens my resolve to do the very 

best job I can to serve our country. 

Returning to Government service would help me repay a debt for a life of opportunity that could only have happened in America. Sixty years ago, my parents, Dr. 

Kwang Lim Koh and Dr. Hesung Chun Koh, came to this country as students from 

South Korea. My father, an international lawyer, served South Korea’s first freely 

elected government as its Permanent Representative to the United Nations and 

charge ́ d’affaires in Washington. But when a military coup overthrew the South 

Korean Government, my father refused to swear loyalty to a regime that did not 

respect human rights, democracy, and the rule of law. We took refuge here, and as 

we grew, my parents told us daily how lucky we were to live in America, a nation 

founded on these values. They urged me and my siblings—including my older 

brother Howard, who has just been nominated to be Assistant Secretary of Health 

in the Department of Health and Human Services—to serve our Nation by upholding its principles. 

During the summer that President Nixon resigned, I was a college student visiting Seoul. After someone tried to assassinate South Korea’s President, army tanks 

rolled in the streets. I called my father and marveled that South Korea had never 

enjoyed a peaceful transition of government, even while the world’s most powerful 

government had just changed hands without a shot. My father said, ‘‘Now you see 

the difference: In a democracy, if you are President, then the troops obey you. But 

in a dictatorship, if the troops obey you, then you are President.’’ It was the first 

time that I fully grasped what Chief Justice John Marshall meant, when he said 

that the Government of the United States is ‘‘emphatically . . . a government of 

laws, and not of men.’’ 

My parents’ teaching inspired me toward a career promoting America’s commitment to law and human rights. After law school, I served as a law clerk for Justice 

Harry A. Blackmun and Judge Malcolm Richard Wilkey, and in both Republican 

and Democratic administrations: As an attorney at the Office of Legal Counsel in 

President Reagan’s Department of Justice, and as Assistant Secretary of State for 

Democracy, Human Rights, and Labor under President Clinton. When I became a 

professor at Yale in 1985, the guiding themes of my teaching and scholarship became respecting human rights and the rule of law and preserving checks and balances. Since 1989, these ideas have also inspired the human rights work that I have 

pursued with my students. And during these past 5 years, these themes have been 

the driving principles of my time as dean of Yale Law School. 

My new assignment would continue these lifelong commitments. If confirmed, I 

would seek to provide the President and the Secretary of State with the very best 

legal advice possible and urge both our country and others to uphold the rule of law. 

As my professor, former Legal Adviser Abe Chayes once said: There is ‘‘nothing 

wrong’’ with a lawyer ‘‘holding the United States to its own best standards and best 

principles.’’ 

As America confronts a new set of global challenges, showing respect for international law and institutions will make us stronger and safer. As President Obama 

reminded us in his inaugural address, ‘‘earlier generations faced down fascism and 

communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions.’’ When Secretary Clinton recently appeared before this committee, she called on American foreign policy to ‘‘use what has been called ‘smart 

power,’ the full range of tools at our disposal.’’ To strengthen America’s position of 

global leadership, commitment to the rule of law will be an essential element of 

American ‘‘smart power,’’ and energetic diplomacy must go hand in hand with 

accomplished lawyering. 

Having spent my career as a scholar and a government lawyer, I fully understand 

the difference between those two roles. For nearly 30 years, I have worked with the 

talented and dedicated attorneys from the Legal Adviser’s Office, which I have always considered one of our Government’s very finest law offices, as well as the preeminent international law firm in the world. And I firmly believe, as I have argued 

in my scholarship, that energy in the executive must be accompanied by genuine 

respect for the constitutional function of advice and consent and executive-legislative partnership in foreign affairs. 

Mr. Chairman, if confirmed, I would be honored once again to take the oath to 

support and defend the Constitution of the United States. To me, those are not just 

12 

words, but deeply held convictions. This country gave my family refuge, and gave 

me the chance to devote my life to promoting America’s commitment to law and 

human rights. From my life experiences, I have learned several crucial lessons that 

I would bring to this task if confirmed: That obeying the law is both right and 

smart, for nations as well as individuals; that respecting constitutional checks and 

balances in foreign affairs defends our Constitution and leads to better foreign policy; and that making and keeping our international promises promotes our sovereignty and makes us safer. 

Thank you. I now look forward to answering any questions that you may have. 

The CHAIRMAN. Thank you very much, Dean Koh. Appreciate it. 

Let me sort of cut right to it, if I can. Obviously, since the President nominated you, there has been some discussion of your views 

on the interaction of international, foreign, domestic law. And perhaps that includes the theory of transnational legal process, and 

you have described that as a kind of shorthand description for how 

state and nonstate actors in Iraq. 

Would you just perhaps share with us, maybe you could clarify 

to the committee right up front here your views? Can you explain 

how you view the use of international law and foreign law by U.S. 

courts? What is the proper weight and procedure? 

Mr. KOH. Senator, transnational legal process, which is an academic idea, just says what we all know—that we live in an interdependent world that is growing increasingly more interdependent. 

It is now new, and it is not radical. It is not an ideology. It is a 

description of a world in which we live, and we see it every day. 

We know that our economies are interdependent. We know that 

our communications are interdependent. And we know that our 

laws are interdependent. So if President Obama is going to Europe 

to manage the G20, economic interdependence. If our health officials are working on interdependence of our response to swine flu, 

it makes sense to have a State Department who has lawyers working to manage the interdependence between the U.S. law and laws 

around the world. 

This is not new. It is from the beginning of the republic. It is the 

basic views of Thomas Jefferson and Ben Franklin, who called for 

us to give decent respect to the opinions of mankind. 

And most importantly, it is necessary and unavoidable that we 

be able to understand and manage the relationship between our 

law and other law. You would not, in this day and age, have a general counsel of Microsoft who did not know anything other than the 

law of the State of Washington. And in the same way, you need a 

general counsel at the State Department, if confirmed, who had a 

similar kind of knowledge. 

On the question of foreign law and courts, obviously, I am not 

being nominated to be a judge. I am being nominated to be the 

legal counsel of the State Department. And so, knowing foreign 

law, it seems to me, is absolutely critical. What is the exposure of 

U.S. entities in different parts of the world? What does foreign law 

require? 

At home, it has been said by many justices going back, and seven 

justices on our current Supreme Court, that we must look to foreign law. We are not bound by it. It is not controlling on us, but 

it is something we can look to as a source of instruction. And if we 

look at law review articles in making decisions, we can look to 

precedents from other countries as well. 

13 

The CHAIRMAN. So when, if ever, would you counsel that an 

international and/or a foreign law should be binding in our court? 

Are there circumstances where it would be? 

Mr. KOH. They are only binding in our court, international and 

foreign law, when judges make them so, the President suggests 

that they should be so, or Congress embodies them into an act of 

Congress that is signed by the President. 

International and foreign law don’t become our law unless they 

are brought into our law by an act of American legal institutions. 

Now that describes what our Constitution creates as the channels 

for bringing these bodies of law into our law. 

The CHAIRMAN. Could that happen outside of a treaty that is 

ratified by the U.S. Senate? 

Mr. KOH. The treaty is the most obvious way. And as you know, 

we have an extensive constitutional process for making treaties 

part of our law and then the supreme law of the land under article 

6 of the Constitution. 

There is also a body of law known as customary law, customary 

international law, which is determined by looking at the practice 

of states followed from a sense of legal obligation. In certain interstitial cases, that can be part of what Federal courts have called 

Federal common law, and that has been held by repeated Supreme 

Court decision going back to the 1900s. 

The CHAIRMAN. Well, perhaps you could share with us sort of in 

practical terms how you think the understanding of and recognition 

of some of this—of the international rules of the road would affect, 

for instance, dealing with the Somali pirates or swine flu, two current examples? 

Mr. KOH. Those are two excellent examples, Senator, of where 

international law is not the problem. It is the solution. And if we 

don’t have international law, we have no solution. 

You do not have a national law that can address the problem of 

pirates off the coast of Somalia. What we need is an international 

regime, which has been created. Such a regime now involves U.N. 

Security Council resolutions, a multinational naval deployment 

force, a contact group that meets with Europeans and Africans. 

Secretary Clinton announced a four-part strategy for addressing 

this, including private-public partnerships. There have been prosecutions in courts both in Kenya and most recently an indictment 

brought in the New York Federal court. And so, pirates are an 

issue. It is a global challenge. And to address it, you need global 

law. 

Swine flu, the same. We have a World Health Assembly. We 

have international health regulations. We have an executive committee, which is considering the question of whether there is a public health emergency of international concern. And all of these 

issues can only be addressed by international cooperation within a 

framework of law. Again, international law is the solution, not the 

problem. 

The CHAIRMAN. Some make the argument that that might challenge, that acceptance of that international law might undermine 

our sovereignty or our national security. Could you address whether there is any way in which you believe that can occur? 

14 

Mr. KOH. If there is a challenge to our sovereignty, it should be 

protected by the way in which we engage those regimes. Obviously, 

we can’t enter treaties that violate the Constitution. The Constitution is the controlling law. Obviously, we have to agree only to 

international commitments that we can keep and that protect our 

foreign policy interests. 

It is not a one-size-fits-all. It has to be done on a case-by-case 

basis. But I think the point that you made, which is so important, 

Senator, is our sovereignty in an age of interdependence doesn’t 

mean staying out of these regimes. It means engaging with them 

within a framework of law and making them serve our national interests. 

The CHAIRMAN. Thank you very much, Dean Koh. I appreciate it. 

And Senator Lugar, I am going to turn the gavel over to you 

and—I think because both of our Senators have another thing they 

have to go to after a while. 

Thank you very much. 

Senator LUGAR. We will do our best. 

The CHAIRMAN. Senator, you are a proven act in this city. 

[Laughter.] 

Senator LUGAR [presiding]. Mr. Chairman, I want to start by 

bringing at least to the attention of our nominee what seems to be 

the crux of much criticism. This may not be the most specific or 

dramatic quote, but Time magazine published an article by 

Massimo Calabresi on Friday, April 24 in which he says, ‘‘The battle began in late March when Fox News firestarter Glenn Beck said 

Harold Koh, Obama’s nominee to be the State Department top lawyer, supported Muslim sharia law. ‘Sharia law over our Constitution,’ Beck said in amazement. 

‘‘When that unlikely charge was debunked, Beck switched tacks 

and asserted that Koh, the outgoing dean of the Yale Law School 

and a former official under President Reagan and Clinton, wanted 

to subjugate the U.S. Constitution to foreign law. 

‘‘All of which would be fairly standard ratings-chasing melodrama except that the prominent members of the GOP, like Karl 

Rove and former U.N. Ambassador John Bolton, began signing onto 

versions of Beck’s critique. At that point, conservative heavy hitters, including former Solicitor General Theodore Olson and Clinton tormentor Ken Starr, spoke up in favor of Koh. The dispute 

soon spread to the blogosphere, and Republicans across the country 

took sides, calling each other ‘fruitcakes’ and ‘windbags.’ 

‘‘With a committee vote on Koh’s controversial nomination coming Tuesday, both camps are lobbying Senators in what has become 

a proxy fight for the Republican Party’s approach to life in political 

exile.’’ 

Now without going into the problems of the Republican Party 

any further, there is some substance to this type of atmosphere 

that has been created not only in the blogosphere, but in Time 

magazine and elsewhere. And as you are aware, Dean Koh, from 

our own conversation, while you recognize and are not ultra sensitive to the fact that you are reading unusual criticisms of your 

record and your outlook, particularly along the lines that Senator 

Kerry has approached in a much more refined manner than this 

particular quote, this is a source of concern for many Americans. 

15 

There are many Americans, as we have treaties coming before 

this committee, who are very suspicious of international law, particularly obligations the United States undertakes with regard to 

other nations. And that usually is the substance of treaties. This 

is why in my opening statement I suggested, respectfully, that as 

the President approaches treaties, your consultation with our committee will be of the essence early on and frequently. 

We have had such consultation in the past when there have been 

very substantial treaties. For example, following the problems of 

our country with the former Soviet Union, President Reagan appointed an arms control observer group of the leadership of the 

Senate in both Republican and Democratic parties headed by Robert Byrd and Robert Dole, who went with many of us to Geneva, 

Switzerland, in 1986. 

The treaty didn’t happen right away. But President Reagan surmised quickly that we had not been through a treaty with the Soviet Union before. And as a matter of fact, when one finally came 

to the fore about 3 years later, a two-thirds majority was obtained 

with majorities in both parties who had had sort of a 3-year study 

period of what this meant in terms of international law. 

How do you enforce all of this? What does it mean to Soviets as 

opposed then to Russians who came along after the Soviets? And 

these are always problems. We have gone through this with regard 

to the treaty on nuclear material with India in the past year, a 

very complex situation for many of us who are in the nonproliferation camp to say why is India gaining leave from certain obligations other countries have had to meet? 

And nevertheless, President Bush felt that that relationship was 

tremendously important politically and strategically. India is a 

very large country. And whether it signed onto the nonproliferation 

treaty or some of those aspects or not, he felt was less essential. 

Whereas, many who are more legalistic about it felt this is very essential, sort of first things first. 

I mention these pragmatic situations because this is not the only 

advice that you will be asked for from colleagues in the State Department, but it really gets to the heart of the matter in terms of 

essential relations of our country in terms of our strategic security. 

And so, I mention all of these things because you have been involved in discussions of these in previous roles in the State Department and, I suspect, informally even as dean of the Yale Law 

School now. 

But would you speak again to the problems as you see pragmatically regarding international law, the kind of advice you must give, 

in this case as a political appointee, as one who is going to be dealing with Republicans and Democrats, who is going to need twothirds majorities for significant changes in international law which 

we are debating? 

Mr. KOH. Senator, that is a very thoughtful question. Thank you 

for reviewing the cultural history of my nomination, which has 

been interesting for me to observe myself. 

I would say that the key point which you make is that we cannot 

engage global challenges without global commitments. Someone 

who is in the business world might want to avoid making contracts 

because you would be then utterly self-sufficient. But if you didn’t 

16 

make contracts in which you have traded something for something 

else, you couldn’t accomplish much in this world. 

And the same goes for making agreements. And you yourself, 

Senator, have been a great leader in this area, and in the nuclear 

area in particular, these tremendously important agreements and 

some more of which are coming before this committee have posed 

these issues. 

The only solution, which I have written about in my own academic writing, is a partnership between the Congress and the 

President. You use the word ‘‘a power shared’’ in your opening remarks. It was actually the first title of my book, the National Security Constitution. Then they forced me to change it away from that 

to ‘‘A Power Shared,’’ which now allows you to use that title. 

But I think that is the basic idea, that our Constitution requires 

that the foreign affairs power be a power shared. You can’t get a 

two-thirds vote for a treaty without a significant number of members of the opposing party supporting the activity. 

So that requires any—what is required in any good partnership—consultation, respect, honesty, and close working together. 

And then the partnership extends not just between the executive 

and the legislative branch, but the partnership between the United 

States and our treaty partner to make sure that we are on the 

same page. 

And the basic theme of all of my writing is that a partnership 

between the President and Congress protects our foreign policy and 

supports our Constitution and that a partnership with our allies 

done well, correctly, within the law protects our sovereignty and 

makes us safer. 

Senator LUGAR. I thank you very much. And I thank you again 

for your response to the 40 questions that I submitted to you, 

which I felt comprised some of the most controversial questions 

that could be asked. 

Mr. KOH. They were helpful, Senator. It was like a test—— 

Senator LUGAR. I asked you to put them in writing before we 

came to this hearing. 

Mr. KOH. I am used to taking exams in May, Senator. So it came 

a little earlier this year. 

Senator LUGAR. Very well. 

Senator Dodd. 

Senator DODD. Thank you very much, Senator Lugar. 

It is possible that the question I will ask may have been one that 

was submitted by Senator Lugar, and I should have looked at your 

questions and answers before asking this. So maybe it has already 

been addressed, but let me raise the issue of the International 

Criminal Court with you, if I can, Dean Koh. 

We currently have, as you know, I think the first case where a 

head of state has been indicted by the ICC in the case of Omar alBashir of Sudan. We in this country have taken a very—at least 

historically a position of nonparticipation in the ICC. And certainly 

while the previous administration had very strong feelings about 

the head of state in the Sudan—I don’t want to suggest that they 

in any way were not deeply concerned about the atrocities committed under the leadership of the Sudan—but were very opposed 

17 

to the idea of United States participation in the International 

Criminal Court. 

And I wonder if you might share with us your views on whether 

or not we should, as a nation, become a more active member? And 

if so, what conditions should we, as a nation, place on our participation in the court in the coming years? 

And again, I know, because we have talked about this a great 

deal, and I know you know, that in 1945 and 1946, my father was 

the associate executive counsel under Robert Jackson at the Nuremberg trials. And that experience was a life-altering experience 

for him and set in many ways the moral tone for about 60 years 

or more in terms of our nation being the only nation to really actively participate or at least actually support, I should say, that tribunal. 

While the Soviets and the British and the French, obviously, 

were very engaged, it was the leadership of the United States, 

more so than anything else. The greatest advocate of the trial was 

Henry Stimson, the only Republican in Roosevelt’s Cabinet, the 

Secretary of War, I might point out. It was rather ironic in a way, 

but nonetheless, he was very, very supportive of the Nuremberg 

trials. 

So I wonder if you might share with us your views on the ICC? 

Mr. KOH. Thank you, Senator. 

As you know from my work at the Dodd Center, the Dodd Center 

at the University of Connecticut on Human Rights is in some sense 

a tribute to a man, your father, but more fundamentally, the review of a history of an idea with which the United States has tried 

to engage, which is international justice as a basis for supporting 

peace and security. 

Indeed, President Clinton, Bill Clinton went to the Dodd Center 

in 1995 and called for an international criminal court, if it could 

be designed in a way that would serve our national interests. 

At the Rome conference in 1998, the United States decided to not 

sign the treaty because of concerns about whether American 

servicemembers would be subjected to the jurisdiction of the court 

unfairly. But by the end of the Clinton administration, December 

2000, the Clinton administration had worked back to the notion of 

signing the treaty with ratification in the future, it was hoped at 

the time, because, ultimately, international justice could be used to 

serve our interests. 

The last 8 years have really led to two policies. An announced 

policy of hostility to the court, but then a de facto policy which, as 

you have described, could be described as coexistence with the 

court. And indeed, the previous legal adviser to the State Department under President Bush, John Bellinger, said that the United 

States has accepted the reality of the court. And so, we permitted 

the Darfur referral to go forward. 

Now there are a set of issues facing the new administration how 

to reengage with the court at a time in which the prosecutor, Luis 

Moreno-Ocampo, has gotten approval to proceed against the sitting 

head of state of Sudan, Mr. Bashir. It is a complicated situation in 

which international justice, I believe, could play an important role 

in bringing a better outcome in Sudan than we have now. 

18 

On the other hand, I don’t think that we should reengage without fully protecting American interests. So in my answer to Senator 

Lugar’s question on this issue, I identified a series of issues that 

would need to be examined. Whether the so-called unsigning of the 

treaty in 2002 should be reexamined. How to make sure we stay 

within the framework of the American Service Members Protection 

Act. Do we engage with the 2010 conference on the definition of the 

crime of aggression? Are there ways to support the prosecutor without running afoul of various restrictions? All of these need to be addressed. 

If I am confirmed, I would be delighted to participate in these 

conversations. There are many others in the administration who 

have lots of knowledge, particularly those in the military. I would 

very much look forward to engaging with them and hopefully having another chance to come back before this committee to discuss 

the next steps and to consult with all the members of this committee about your particular concerns. 

Senator DODD. Thank you very much. 

Thank you, Mr. Chairman. 

Senator LUGAR. Thank you very much, Senator Dodd. 

Senator Corker. 

Senator CORKER. Thank you. 

Welcome. I have heard from numbers of people that I respect regarding their respect for you, and I know of your tremendous accomplishments. As I have mentioned to you in our office, it is pretty incredible the background that you have and the many things 

that you have done. 

That, combined with my sort of presense that elections have consequences and that a President ought to have the ability to appoint 

mostly people that they wish, I expected the meeting that we had 

in our office to go quite well. And to be candid, I left there somewhat disappointed, and I think you sensed that when you were in 

the office. 

And I told you I would not blindside you, but I would like to— 

and I am not going to do that. But I would like to just sort of go 

back over a few questions. And again, I ask these questions out of 

respect for both your life story, which I find to be pretty incredible, 

and also the many accomplishments that you have been able to 

achieve in your life. 

And I will just start with the first question we asked. Do you believe that the President has the power to invoke customary international law to preempt State law? 

Mr. KOH. I don’t know of an occasion in which the President has 

done that. But I do think that the President has, on occasion, invoked customary international law to declare a uniform rule. For 

example, the 12-mile limit was declared by President Reagan offshore. 

Now there was no contrary State law there. And so, I don’t know 

of a case in which the State law was preempted. 

Senator CORKER. I quoted a press statement that I think all of 

us have probably read, and they quoted you—maybe fairly or unfairly, I don’t know—regarding some remarks you made in Berkeley in 2004, and I will just read this so that I can get the quote 

just right. 

19 

You said, ‘‘Several nations whose disobedience of international 

law has attracted global attention after 9/11, most prominently 

North Korea, Iraq, and our own country, the United States of 

America. And for shorthand purposes, I will call these countries the 

axis of disobedience.’’ 

I am just wondering if you might explain to us exactly what you 

were thinking? 

Mr. KOH. Well, Senator, I am delighted to, and I am grateful to 

you for having this conversation. 

As you know from my life story, there is no way that I would 

consider the United States and North Korea in some way to be 

morally equivalent. I have visited North Korea. I was appalled by 

the conditions there. I spoke out about the human rights abuses, 

and I consider them to be one of the great international law violators in the world. 

Nevertheless, I believe that if we can bring them into the community of nations and engage them in international law, we could 

be safer. The point I made in the article was a simple one. It is 

harder for the United States to encourage countries that are lawless to obey if it can itself be accused of being lawless. 

They can turn around and charge us with being part of their 

same axis of disobedience, and that is not the kind of company that 

we want to keep. And I was encouraging us to see ways in which 

the United States could be on the right side of the law so that it 

could exert the kind of moral leverage on other nations who are so 

radically out of compliance with international law as North Korea. 

Senator CORKER. And in which areas would you refer to us being 

lawless as a country? 

Mr. KOH. Well, what I was referring to is ways in which the 

United States I said I felt had fallen below international legal 

standards, for example, with regard to torture of detainees, with 

regard to treatment of detainees on Guantanamo. 

Senator CORKER. Was torture of detainees in the public sphere 

in 2004? 

Mr. KOH. It very much was, Senator. 

Senator CORKER. OK. OK, so in the areas of torture and what 

other areas did you deem us to be at that time lawless? 

Mr. KOH. A failure to respect the Geneva Conventions, which I 

thought was damaging and dangerous to our own troops, who need 

the protections of the Geneva Conventions. 

Senator CORKER. OK. As I was watching the body language when 

Senator Kerry was asking you questions, I noticed that in his first 

question, which had to do with the rub between international law 

and U.S. law, it appeared to me that you were reading the answer. 

And I am just wondering if that is an area that you have tenuously 

had to walk down because of previous comments that you have 

made publicly? 

You know, you are the dean of Yale Law School and probably one 

of the most knowledgeable people to ever come before this group as 

it relates to law. But it did appear to me that you were reading 

that answer, and I am just wondering if you might speak to that? 

Because typically when people do that, they are sort of tight-roping down an issue that they are concerned there may be some baggage on. Maybe I saw wrong? 

20 

Mr. KOH. Senator, I respect you so much I wanted you to hear 

it exactly as I could put it most cogently. But I am happy to reply 

again now. My view—— 

Senator CORKER. Well, is that an area then that you have felt 

some degree of liability as it relates to taking on this position? 

Mr. KOH. Not at all, Senator. I stand by everything I have written. I have exercised my free speech rights. I am an academic. The 

job of an academic is to put ideas into the marketplace of ideas. 

But I have also been a Government official, and when I am a 

Government official, I act in a role. I play the role of counselor to 

a client. The counselor to the client looks to the client to give direction and to try to get that person to serve the law and the best interests of the country. 

So that is exactly what I would say the question that Senator 

Kerry asked me was about the role of a judge applying foreign law. 

I am not nominated to be a judge. What I am being nominated to 

be is the general counsel of the State Department. 

And in that job, Senator, you have to know foreign law. It is not 

controlling, but you need to understand it. It would be malpractice 

for me to be general counsel of the State Department and not have 

a firm understanding of foreign law and how it affects American 

interests. 

Senator CORKER. Well, just for the record then as we close out, 

I have actually sensed among nominees that the area that we need 

to be most concerned about are those that are in the legal areas 

because, especially in your case, you are giving advice to someone 

that would be otherwise a layman in the areas that you would be 

advising them. And your point of view is very important, and the 

way you direct the law staff. 

I was talking to you about a similar type thing in our office that 

there is no use getting into today. So I have actually sensed that, 

actually, if an administrator can sort of function OK, that is of lesser concern than some of the judiciary and some of the areas of legal 

where you are giving advice to someone in an area that they really 

don’t know much about. And certainly, international law is something that most people are not experts in. You certainly are, and 

I respect that. 

But I guess I would ask just a final question for the record, and 

that is that do you have the ability—because I know you have 

shared some personal thoughts that might not fully line up with 

everybody here. And certainly, no one could do that. But can you 

separate those personal views that you have from just giving absolutely neutral advice as it relates to the law to the Secretary of 

State and those involved? 

Mr. KOH. Senator, I have been very inspired by the words of Herman Phleger, who was the legal adviser for John Foster Dulles. He 

said the job of the legal adviser is to speak law to power. 

And I should say that the President of the United States, President Obama, is an outstanding lawyer. The Secretary of State Hillary Clinton is an outstanding lawyer. The Deputy Secretary of 

State Jim Steinberg is an outstanding lawyer, both from our law 

school. 

They will challenge the legal views that would be offered by the 

person in my position, if confirmed, and the lawyers in the office, 

21 

as they should, for the purpose of getting the best possible legal advice. This is the greatest country in the world. You need the greatest legal, the best legal advice that could be given. And if confirmed, I would intend to give that advice. 

Can I separate my role? I have in the past. That is the job for 

which I have been nominated, and that is what I would intend to 

do. 

Senator CORKER. Thank you. 

Senator LUGAR. Thank you very much, Senator Corker. 

Senator Feingold. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

I am also, of course, very pleased to be here in support of my old 

friend, Harold Koh, nominee to be legal adviser to the State Department. I have known Dean Koh for more than 30 years, dating 

back to our time together at Oxford University. 

So, of course, it gives me a great pleasure to see him here and 

nominated. But I assure you, Dean Koh is an excellent choice for 

this position, regardless of how long I have known him. Harold is 

one of the most ethical and hard-working individuals I have ever 

met. He also happens to be one of the brightest legal minds in the 

country. 

Dean Koh has dedicated his life to upholding the rule of law and 

strengthening American values because, as he said in his testimony, he believes that obeying the law is both right and smart. So 

I have only the greatest respect for Dean Koh and, of course, want 

to reiterate what the chairman said—the incredible number of letters of support that have poured into my office over the last few 

weeks from a wide range of people that includes Ken Starr and 

Rabbi David Saperstein, these letters are a critical testament not 

only to how qualified Dean Koh is for this position, but to his ability to work in a nonpartisan manner in defense of the Constitution 

and to promote the rule of law and human rights. 

And these are some of the core values on which this country was 

founded, and they have been an important source of our country’s 

power. Our ability to influence other countries to achieve our international and national security priorities actually depends on a 

principled approach to foreign policy, which includes a commitment 

to these principles. 

And so, as I listen to some of the certainly appropriate questioning already, I want to just observe—especially with regard to 

Senator Corker’s question—first of all, listen to the way Harold 

Koh responded to the question about customary law. He gave a 

crisp answer. He gave a specific example of where President 

Reagan actually invoked customary law, and I want to note for the 

record there was no rejoinder. There was no followup question because the answer was typical Harold Koh—precise, to the point, 

and effective. 

Second, when the issue came up of the question of comments 

made with regard to the so-called axis of disobedience, the notion 

that somehow Harold Koh would cite these examples as a way to 

denigrate the United States is, frankly, absurd. What he was doing 

is a great service to us, to say that when we somehow get in a category that allows people in other countries to compare us to those 

countries that are such bad actors, it is at that moment that we 

22 

pay a real price. And we have paid that price, Mr. Chairman. We 

have paid that price in this world. 

So Harold Koh is warning us in a patriotic way that we cannot 

allow ourselves to even have the perception of that, let alone the 

reality, and I think that is a service. And, frankly, a distortion of 

his words to suggest that he really believes that we belong in that 

category. 

And finally, the notion that somehow that Harold Koh presumably reading an answer regarding the sharia law issue—you know, 

I just read part of my statement. That doesn’t mean I didn’t mean 

it. That doesn’t mean I don’t get it. And I had Harold Koh respond 

to me several times without any notes, eloquently indicating that, 

of course, he doesn’t believe that sharia law could control in our 

country. 

So, frankly, I am pleased that some of these things are coming 

up because they show the weakness of the criticisms that have 

been leveled toward this excellent nominee. 

Mr. Koh, what is your position on the appropriate relationship 

between the executive and legislative branches when it comes to 

foreign affairs decisionmaking? 

Mr. KOH. Well, as I said in discussing this issue with Senator 

Lugar, the Constitution’s framework while defining the powers of 

Congress in article 1 and the President in article 2, creates a 

framework in which the foreign affairs power is a power shared. 

Checks and balances don’t stop at the water’s edge. 

It is both constitutionally required, and it is also smart in the 

sense that the President makes better decisions when Congress is 

involved. If they are in at the takeoff, they tend to be more supportive all the way through the exercise. 

Senator FEINGOLD. And could you say a little more, Dean Koh, 

about the main themes of your scholarly writings and your 

thoughts on the main differences between what it is to be a scholar 

versus a lawyer? 

Mr. KOH. My scholarly work is extensive. I have said many 

things. The thing about sharia law, as you pointed out, is not something that I said. So I guess that if you are looking for something 

to disagree with, you need to look to something that I didn’t say. 

What I did say is very simple. Obeying the law is right and 

smart, both domestically and internationally. It is smart in the 

sense that it gives you the kind of moral legitimacy, the soft power 

that you need to influence and lead on a multilateral basis. 

So this means that with regard to domestic affairs, the more the 

President can work with Congress, consult and get the value of 

Congress’s experience, the more likely that that outcome will be 

sustainable over time. A war that is begun with congressional support will maintain that support longer than one that is started 

without congressional approval. 

At the international level, the arguments I have made are the 

same. That working with other countries, agreeing on how we 

ought to operate within a framework and then acting within that 

framework of law protects our sovereignty in the sense of allowing 

us to assert our interests within an international framework and 

can make us safer. 

23 

There are so many global challenges, Senator. Every day there 

is a new global challenge, whether piracy or swine flu or economic 

crisis. On each of those, the United States cannot address that 

problem alone. It needs to cooperate. And in cooperating, it needs 

to cooperate within a framework of international law. If we don’t 

have that framework, we are going to be less safe, and we won’t 

be able to protect our sovereignty. 

Senator FEINGOLD. Thank you, Dean. 

Thank you, Mr. Chairman. 

Senator LUGAR. Thank you very much, Senator Feingold. 

Senator Isakson. 

Senator ISAKSON. Thank you, Mr. Chairman. 

Again, it is a pleasure to meet you and your lovely family. 

Mr. KOH. Thank you. 

Senator ISAKSON. After we met the other day in my office, I remember telling my wife over the phone that night that I may have 

talked to the most skillful attorney I had ever talked to. 

And then I read an April 27 article in Newsweek, which described you as the following. ‘‘A tweedy, brainy legal scholar who 

writes brilliant law review articles that are carefully reasoned, if 

more or less impenetrable to nonlawyers.’’ [Laughter.] 

I then realized why I was so impressed. I am a nonlawyer. And 

so, I thought that was a good description. 

But there are some hard questions I want answered. Because of 

the hard questions that are out there, our advice and consent is our 

responsibility not only to the Constitution, but to the constituents 

that we represent. 

In that same article, it says that, ‘‘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, 

for instance, pushed for a more expansive view of what constitutes 

cruel and unusual punishment under the eighth amendment.’’ 

Would you address those two questions? 

Mr. KOH. Senator, first, for the record, let me say I don’t own 

any tweed jackets. [Laughter.] 

But again, that article that you mentioned is one in which I had 

trouble recognizing myself. I believe that the Constitution is controlling law. I am not on a campaign. My job is to try to understand how the Constitution should be interpreted. 

There is certainly no campaign to shrink any provision of the 

Constitution. The claim that was being made was that where the 

United States has a free speech tradition that is different from the 

free speech tradition of another country, how do we enter a treaty 

in which that free speech might be implicated? 

The answer is quite simple. When the United States ratified the 

genocide convention, there was a provision about incitement to 

genocide being a crime. Then Assistant Attorney General William 

Rehnquist, later Chief Justice, recommended a reservation to protect America’s first amendment interests. So we entered the treaty, 

and our first amendment rights were unaffected. 

On cruel and unusual punishment, as I gave citations in a specific question asked by Senator Lugar, since 1958, the U.S. Supreme Court has, in a case called Trop v. Dulles, said that you deVerDate Nov 24 2008 12:26 Apr 01, 2011 Jkt 062931 PO 00000 Frm 00027 Fmt 6633 Sfmt 6602 S:\HEARING FILES\111TH CONGRESS\NOMINATION HEARINGS THAT WE WILL PRINT\0
24 

cide what is unusual, for the cruel and unusual punishments 

clause, by looking at evolving standards of human decency, not just 

standards within a particular part of the United States. 

In a case called Atkins v. Virginia, the case raised the question 

whether the State of Virginia could execute a person who had mental retardation, and the brief that I filed on behalf of a group of 

distinguished diplomats, including Tom Pickering and Madeleine 

Albright, simply said the United States is the only country in the 

world that engages in this practice. A minority of States within the 

United States engage in this practice. And that is unusual. 

If we are on the only nation to do it, it is unusual. And the words 

of the Constitution say cruel and unusual punishments should be 

averted. So I don’t consider that a campaign. I think that was a 

following the precedents of the U.S. Supreme Court and following 

the words of the Constitution itself. 

Senator ISAKSON. This is a hard question, but I think it is one 

that needs to be answered because I listened closely to your answers, and you referred to your role and your job as an adviser to 

the Secretary of State, a legal adviser to the Secretary of State and 

the fact that you are going to be asked to opine on what your opinion is based on your beliefs of the law and your beliefs. 

There has been a lot of controversy in the Senate in the past 2 

weeks over the opinions that were given by advisers to the last administration with regard to torture, including some who have 

called for the prosecution of those lawyers who were asked to opine 

on various treatments that ended up in interrogation. 

Do you think a lawyer hired by the Government, confirmed by 

the Senate, asked for his or her opinion to advise the administration in their role should subsequently be held legally prosecutable 

for having given their very best opinion and judgment on that 

question? 

Mr. KOH. Well, Senator, as you know, the decisions about prosecution are made by the Attorney General, not by the Secretary of 

State. As you also know, as someone who is seeking confirmation 

to be a lawyer for the Government and to seek confirmation to supervise an office of almost 200 lawyers, I have to be extremely concerned about whether someone who gives legal advice in a certain 

circumstance will be prosecuted. 

If by taking this job, I am buying myself lawsuits and prosecutions, obviously, that wasn’t part of the original plan. 

Senator ISAKSON. You didn’t sign up for that. 

Mr. KOH. That having been said, there is a process unfolding 

which I am not a part of. If confirmed, I might be a voice, but one 

of many voices. 

The lead voice obviously is that of the President. The President 

has indicated that these decisions are in the hands of the Attorney 

General. The Secretary of State repeated in testimony last week 

before the House Foreign Affairs Committee that the President has 

laid out some basic guidelines, and I assume that those will evolve. 

Senator ISAKSON. One last question, and again it is a question 

that has been written about your opinion regarding President 

Bush’s decision to go into Iraq, which I have not read precisely. So 

I don’t know, do you think that President Bush violated the law or 

violated his authority in doing that? 

25 

Mr. KOH. Well, I wrote about two decisions by two different 

President Bushes to go into Iraq. In 1990, I said that President 

Bush 41’s decision to do Desert Storm was lawful under domestic 

law and was lawful under international law because it was approved by a resolution of—a joint resolution of the Congress and 

by a U.N. Security Council resolution. 

The other intervention in Iraq, which happened in 2003, I had 

no challenge to the domestic legal basis of it. But in looking closely 

at the U.N. Security Council resolutions that were invoked, I found 

that the wording of those resolutions didn’t give the necessary support under international law. 

I think the consequence of that was that the intervention into 

Iraq in 2002 did not have the kind of broad support that we would 

have preferred, and that is the only point that I made in that article. 

Senator ISAKSON. Thank you for your time and attention. 

Mr. KOH. Thank you, Senator. 

Senator LUGAR. Thank you very much, Senator Isakson. 

Senator Shaheen. 

Senator SHAHEEN. Thank you, Mr. Chairman. 

Dean Koh, thank you very much for being here and for your willingness to consider public service again. 

Mr. KOH. Thank you. 

Senator SHAHEEN. And I very much appreciate your pointing out 

the distinction between being an academic and being a public servant, having worked in academia for a while—sadly, at Yale’s rival 

institution, Harvard. I do appreciate that they are very different 

roles and am reassured by your pointing out that if you are serving 

in a public position, you would treat that as such. 

The State Department has turned to private security contractors 

in Iraq and Afghanistan because of insufficient numbers of State 

Department security personnel in some cases. Is it your understanding that foreign governments have legal jurisdiction over contractors that operate in those countries? 

Mr. KOH. Well, Senator, first let me thank you for your comments about the role of an academic. As an academic, you speak 

in your own voice. When you are in the Government, you are one 

of many voices working as part of a team. And what you may personally think may be factored into the equation, but the outcome 

maybe quite different. 

With regard to the security contractor issue, Senator, the issue 

has obviously arisen in Iraq, where there has now been a change 

of legal status so that at this moment, security contractors are 

under the jurisdiction, civil and criminal, of Iraq. There has been, 

of course, the famous case about Nissour Square, which was a 

great tragedy. There has been a prosecution brought against employees of Blackwater there under the so-called MEJA, Military 

Extraterritorial Jurisdiction Act. 

That case is currently before a court, and there has been a challenge made there to jurisdiction. But the district judge has allowed 

that case to go forward. 

So I think that you are absolutely right about the overall problem, which is that an effort like Afghanistan and Iraq involves 

many, many, many people. And to ensure that those individuals 

26 

are bound by the same rules of law that govern U.S. Government 

officials in those circumstances is a complicated jurisdictional issue. 

And that is precisely why knowledge of foreign law and international law is necessary for us to try to sort these issues out. And 

if I am confirmed, I look forward to working with you on that issue. 

Senator SHAHEEN. Thank you. 

Some have argued that the Geneva Conventions, which set the 

standards for treatment of prisoners of war and noncombatants, 

don’t apply to members of the Taliban or al Qaeda. Do you share 

that view? And if not, would you assume that the conventions 

apply to both groups? 

Mr. KOH. Well, it depends, Senator, very much on the context in 

which the issue is being addressed. The Supreme Court held in the 

Hamdan case that common article 3 of the Geneva Conventions 

sets minimum standards for those who are being detained on 

Guantanamo, and that is now controlling law of the United States. 

On other issues—for example, general treatment questions—on 2 

days after he took office, President Obama issued an Executive 

order, which called for a 30-day review of conditions on Guantanamo to ensure compliance with the Geneva Conventions, and the 

other Executive orders issued on that day incorporated compliance 

with the Geneva Convention into the Executive order. 

This, by the way, is an example of what I was calling 

transnationalism. These are rules of U.S. law as embodied in an 

Executive order. So it is a description of something that has been 

happening and will continue to happen. 

Senator SHAHEEN. Thank you. 

Senator LUGAR. Thank you very much, Senator Shaheen. 

Senator Barrasso. 

Senator BARRASSO. Thank you very much, Mr. Chairman. 

Dean Koh, thank you for taking the time to visit with me. I congratulate your mother on having two sons—that is a remarkable 

accomplishment—two sons nominated at the same time to serve 

our Nation. So thank you for your commitment and your service. 

I want to thank your family and congratulate all of them who 

have been so instrumental in your success. 

Senator Isakson talked about constitutional issues. Mr. Koh, in 

your opening statement, you talked about defending our Constitution. I would like to switch from what Senator Isakson discussed 

regarding the first amendment. I want to talk about second amendment constitutional issues. 

You had argued that the United States could support global gun 

control without committing itself to a regime that would affront legitimate second amendment concerns. I wanted to talk to you about 

these concerns in the context of multilateral gun control treaties. 

Please explain your views on what are legitimate second amendment concerns and what concerns you might consider illegitimate 

second amendment concerns. 

Mr. KOH. Well, thank you, Senator. And thank especially your 

kind words about my mother. As you know, she is hoping that if 

both of her sons get confirmed, that will be her Mothers Day 

present. 

The point you raise has to do with the international effort to regulate gun transfers, firearm transfers across borders. It is an effort 

27 

which is at a very early stage, and let me make clear the goal is 

to prevent child soldiers in places like Somalia and Uganda from 

having AK–47s transferred from the former Soviet Union. It is not 

to in some way interfere with a legitimate hunter’s right to use a 

hunting rifle in a national or State park. 

At the time that the issue first arose, some second amendment 

concerns were raised that it might interfere with the right to bear 

arms. In an article I wrote, I pointed out that exports of arms have 

always been subject to regulation, the Arms Export Control Act. 

But it did not interfere with domestic possession of these arms, 

which is obviously a domestic concern. 

Subsequently, the Supreme Court, in a case called Heller, reaffirmed and strengthened the second amendment position. That 

was before—that came after I wrote the article. I have not redone 

the analysis of the article in light of the Heller decision. 

But I would say again that a regime that is designed to regulate 

illegal and illicit transfers of certain kinds of assault weapons to 

foreign countries, which are already regulated, is very distinct from 

the kinds of concerns that animate the second amendment, and I 

do not see that there would be a conflict. If there were, obviously, 

the Constitution would control. And obviously, if confirmed, I would 

be consulting with members of this committee on how the core interests of the United States should be protected. 

Senator BARRASSO. Well, you raised the Heller case and the decision by the Supreme Court because in a 2003 Fordham Law Review article you wrote that ‘‘revisionist’’ readings of the second 

amendment give greater weight to the individual’s right to bear 

arms. Could you discuss that a little bit? 

Mr. KOH. Yes, I was referring to writings by my colleague Akhil 

Amar of Yale University and Professor Laurence Tribe of Harvard. 

The question that I was asking was whether they are finding 

more protection, constitutional protection for individual right to 

bear arms gave the second amendment a different meaning than 

it had been given in the case of United States v. Miller, which was 

the prior Supreme Court interpretation of the issue. I think that 

the Supreme Court’s decision last term went even beyond the statements of those scholars with regard to the second amendment. 

Nevertheless, I don’t think that the issue will affect the treaties 

that are under discussion. There are two treaties. There is a Latin 

American treaty, which last week the President announced that he 

would support. There has been discussion of an arms trade treaty, 

but there is no text. And so, it is obviously premature to analyze 

whether it is constitutional or not until we see a text. 

Senator BARRASSO. The Latin American treaty, which was signed 

by President Clinton in 1997, has not been ratified by the United 

States Senate. It would take 67 votes for ratification. The President 

described it as a high priority item for him. 

When you closely read the treaty, I know there are some issues 

that are very concerning to people that own guns in the United 

States, people that participate in gun shows, and people who reload 

their own ammunition. So I know that there are still significant 

concerns related to that specific treaty. 

So I would just like to ask you do you believe the second amendment protects the individual right of ordinary Americans to keep 

28 

and bear arms? I mean, forget about the hunting part. Just to keep 

and bear arms unrelated to militia service? 

Mr. KOH. The decision of the Supreme Court in Heller is the law 

of the land. Obviously, I respect that. And to the extent to which 

those ideas are captured in that decision, yes, I do completely 

agree. 

Senator BARRASSO. Will you commit to working with the Senate 

to ensure that any international agreement that the administration 

considers will not subvert our second amendment right to bear 

arms? 

Mr. KOH. I will go further than that, Senator. Any treaty that 

comes before this committee that raises a constitutional question, 

I will work with members of the committee, if confirmed, to ensure 

that those constitutional interests are protected, whether it is first 

amendment, second amendment, eighth amendment, or anything 

else. 

Senator BARRASSO. Thank you, Dean Koh. 

Thank you very much, Mr. Chairman. 

Senator LUGAR. Thank you, Senator Barrasso. 

Senator Wicker. 

Senator WICKER. Thank you. 

Dean Koh, I very much enjoyed our informal chat the other day. 

And like so many other members of the committee, I would observe 

that although I haven’t known you, you and I do have a lot of mutual friends. And many of them have called with great endorsements of your candidacy and great admiration. And I respect that 

and consider that. 

Let me also just observe that I don’t think you want to abolish 

Mothers Day. I don’t think you want to impose sharia law in the 

United States. By the same token, I don’t think there is anyone 

within the sound of my voice who believes that the United States 

can act unilaterally without some sort of international agreements 

and cooperations. 

And then, finally, before I get to my question, I would observe 

in response to Senator Kerry’s statement about why your family 

left Korea, it seems to me that actually they left North Korea to 

escape an oppressive domestic law that didn’t appreciate the rights 

of individuals there. 

Having said that, let me get to the question about the axis of disobedience. Surely you must have realized that that would be a provocative statement. And based on my conversation with you earlier, 

it is clear to me that that is your legal opinion. So the disobedience 

would be disobedience to international law. Is that correct? 

Mr. KOH. Yes, Senator. What I was saying there was that it is 

harder for us to get other nations to obey international law if we 

are ourselves perceived as disobeying international law. 

Senator WICKER. OK. Well, let me then follow up on Senator 

Isakson’s point because he asked you about the United States decision to invade Iraq, and you answered in the context of an article 

that you wrote. But you and I had a conversation also in which we 

discussed this a little further. 

Clearly, your article suggested that President Bush 41 did better 

than President Bush 43, and I think that is a debate that certainly 

we can have. But I did understand your answer to my question in 

29 

our private conversation to be, when pressed, that indeed our invasion of Iraq was a violation of international law. Is that a correct 

characterization of your answer to me last week when we visited? 

Mr. KOH. Senator, I did not quibble with the domestic legal basis 

for the intervention in Iraq in 2003, which was supported by a resolution of this Congress. What I did say was that the necessary 

legal authorization by the Security Council had not been secured 

and that, therefore, it put us in the awkward position of an intervention which was lawful domestically and unlawful internationally. That has, I think, created a problem in our gaining the support of other nations subsequently and in our efforts in Iraq. 

Senator WICKER. So, in your opinion, our invasion of Iraq was 

unlawful internationally? 

Mr. KOH. Yes. 

Senator WICKER. And so, let me then ask you this. You stated 

with regard to piracy, which we are going to have to deal with in 

this committee and in this Congress and in this administration, 

that there is no solution to piracy short of international law. Was 

that your testimony today? 

Mr. KOH. By its nature, piracy is an act that cuts across borders. 

Even if almost every country acts effectively against pirates, if one 

country does not, they can seek safe haven there. So it is a problem, a global problem that requires a global solution. 

Senator WICKER. Well, there is no question about it. But the 

troubling part of your answer, which I do believe was that there 

is no solution to piracy short of international law, does that mean 

that absent some international agreement, which we might or 

might not be able to obtain, that the United States, of its own volition as a matter of national defense, is powerless to take action 

against piracy? The only solution is to rely on the agreement of 

other countries? 

Mr. KOH. That wasn’t my point, Senator. My point was that 

there are limits to how effectively we can act against pirates in the 

absence of the international legal framework. With the international legal framework, we are on the strongest basis, and that 

was the same point I made with regard to Iraq. 

Understand, Senator, the servicemembers in Iraq, the effort that 

is going on there is something which is of major concern to every 

American. There are many, many legal issues that would arise, if 

I were confirmed, that I would need to address, and my goal would 

be to act in the best interests of our country, our soldiers, and our 

interests in Iraq. 

That having been said, I do believe that the absence of the international law justification that I would have hoped to see in 2003 

has left us in a weaker position, which is why I believe that with 

regard to pirates, it is very important to get an international legal 

framework organized so that we could marshal the most effective 

and acting using the maximum of what Secretary Clinton has 

called our smart power in this circumstance. 

There is no problem with doing it alone. It is just that it is not 

nearly as effective. If there are 193 countries in the world, one 

country can’t stop all pirates. 

Senator WICKER. Let me ask you this. You remember when the 

nation of Israel attacked the Iraqi nuclear installation? 

30 

Mr. KOH. At Osirak. Yes, Senator. 

Senator WICKER. Was that a violation of international law? 

Mr. KOH. Senator, that has often been cited as an example of a 

preemptive act of self-defense. In fact, it is often cited as the quintessential example of extending the basic principle of self-defense 

to one in which you are heading off a future attack. This is one of 

the items that I addressed in Senator Lugar’s question for the 

record on this subject. 

Senator WICKER. In your legal opinion, Israel’s action against the 

Iraqi sites was not a violation of international law? 

Mr. KOH. Senator, my view is that unilateral uses of force, when 

they are not in self-defense, should be avoided. Sometimes there 

may be no alternative. Sometimes a multilateral use of force can 

be organized in a way that puts our response on the strongest possible basis. 

I think that scholars can debate and do debate the lawfulness of 

the Israeli attack on the Iraqi nuclear reactor. Does it fit within 

the test put forward, which is that an attack be imminent, that the 

response be necessary and proportional? And people debate—— 

Senator WICKER. And you are not prepared to give a definitive 

answer to that at this juncture? 

Mr. KOH. I don’t have the information, Senator, that the Israeli 

officials had about what was the likelihood of an imminent attack 

before they made their decision. If I were confirmed, I would be in 

a position where I could ask for information, particularly in the 

context of being asked to give legal advice to the Secretary and to 

the President. 

Senator WICKER. One last thing, Mr. Chairman, if I might? Having an effective solution based on international cooperation is one 

thing. It seems to me a violation of international law is another 

thing. 

Is there a remedy out there for people in other countries to the 

alleged violation that the United States engaged in, in your legal 

opinion, of international law in invading Iraq? Do we need to be 

fearful of a remedy at law in some court because we violated international law, which in your opinion we did? 

Mr. KOH. Well, I don’t mean to go to Latin in this circumstance, 

but the great Myres McDougal of Mississippi, who was a professor 

of international law at our law school, talked about the difference 

between jus ad bellum, which the law of going to war, and jus in 

bello, which is the law in war. So whatever may have been the defects of the lawfulness of the original intervention, if we conduct 

the war in a lawful fashion, those are the incidents for which there 

would be exposure. 

I don’t know, Senator, of any exposure that we have for the original intervention. I will say that some of the difficulties the United 

States has had in obtaining cooperation in bringing about the Iraq 

intervention and the subsequent efforts to make Iraq an independent and democratic nation have been ways in which other nations have been responding to what they perceive to be our failure 

to cooperate within the framework of international law. 

Senator WICKER. Thank you very much, Mr. Chairman. 

Senator LUGAR. Thank you very much, Senator Wicker. 

Let me ask if Senators have additional questions? 

31 

Senator FEINGOLD. Mr. Chairman, just briefly, if I may? 

Senator LUGAR. Yes, Senator Feingold. 

Senator FEINGOLD. I just want to review a couple of the items 

that have been discussed by my colleagues on the other side of the 

aisle because each of them highlights Dean Koh’s commitment to 

law and following the law as opposed to a political view. 

First is the one that Senator Wicker just brought up. The issue 

of whether the Iraqi invasion in 2003 was lawful or unlawful under 

international law. Dean Koh clearly stated as a legal matter that 

under the international regime that had acted on this matter 

through the Security Council and otherwise, that this certainly appeared to be illegal under that regime. 

However, the dean has highlighted that there are situations— 

correct me if I am wrong. You are the dean. I am not. But I think 

under article 51 of the United Nations charter, there is the opportunity to act in cases of self-defense. 

So his answer, when he talks about the regime that had been put 

forward by the Security Council, spoke to that regime. It did not 

preclude the possibility that in certain situations, such as the one 

you raised—the Israeli decision to take out the Iraqi nuclear 

plant—may well have been, as I understand the dean, within article 51. 

So I assume the analysis would be the situation in 2003 is one 

that could legitimately be put under article 51? My view, obviously, 

is that it could not. I take it that would be a fair statement of your 

view as well? 

Mr. KOH. My impression was that the conditions that existed at 

the time that led the Israelis to attack the Iraqi nuclear reactor 

were different from the conditions that existed which led the 

United States to engage in its international intervention in Iraq in 

2003. 

There were Security Council resolutions. My reading of those resolutions were they authorized us to contain Saddam Hussein, not 

to go in and remove him. And it was after Security Council Resolution 1441, where some were pressing for an additional resolution 

and others were satisfied to go forward on the resolution that existed, and that disagreement has lived with us to the present day. 

Senator FEINGOLD. Now going back to another subject that I 

think you and I and our friends started debating about 1975. There 

was one guy in the room who was asserting, a guy from Wisconsin, 

that the second amendment was an individual right. And not all 

of my friends agreed with me, but we debated it back and forth. 

And the dean here has acknowledged that for the first time, the 

U.S. Supreme Court finally ruled what I thought was right. In a 

close decision, where I filed an amicus brief with many from the 

other side of the aisle saying I believe it is an individual right. 

But I believe I heard you say that you have no doubt in your 

mind, despite the criticism that has been raised with regard to the 

Heller decision, that it is, in fact, the law of the land. Is that correct, Dean? 

Mr. KOH. Well, Senator, in 1975, you called this one better than 

I did. [Laughter.] 

32 

Senator Lugar, you may not know that Senator Feingold’s undergraduate dissertation was about the second amendment, and I 

think it was 400 pages long. 

Senator FEINGOLD. Only 300. [Laughter.] 

With footnotes. 

Mr. KOH. He forced me to read it, which I did. And frankly—— 

Senator FEINGOLD. And fell asleep. 

Mr. KOH. No. I had no idea at the time that there was such an 

extensive basis. And over the years, I have watched as this particular approach to the second amendment has gained various academic adherence and then was adopted in good measure by the Supreme Court’s opinion in Heller. So I think that it is a constitutional analysis which has carried the day. 

Senator FEINGOLD. Finally, with regard to the death penalty in 

the cruel and unusual standard, obviously, many of us have our 

own views. And frankly, I have been very disappointed that the Supreme Court moved away from what I thought was a trend to declare the death penalty inherently unconstitutional. It was a great 

disappointment to me and something I wish would change. 

But I asked you in my office whether you believe that the death 

penalty as a general matter is permitted under the eighth amendment, and I believe you said that is clearly the law of the land. Is 

that correct, Dean? 

Mr. KOH. That is correct, Senator. 

Whatever my personal views about the death penalty might be, 

if confirmed, and if I took an oath to uphold the Constitution and 

laws of the United States of America, that would include the administration of the death penalty. 

Senator FEINGOLD. Mr. Chairman, thank you for the additional 

time. I think what the dean, of course, has demonstrated here is 

he clearly understands his role as legal counsel is very different 

from that as an academic and would be a true adherent to our Constitution and our laws. 

Thank you, Mr. Chairman. 

Senator LUGAR. Well, these additional questions gave the dean 

an opportunity to mention 1975 and your thesis. And so, that has 

embellished our hearing. [Laughter.] 

Senator Wicker, do you have additional questions? 

Senator WICKER. Well, I am tempted to ask that that dissertation be attached to the record, but I think I will withhold on that. 

Mr. KOH. Senator, then three of us would have read it. [Laughter.] 

Senator FEINGOLD. You know, I thought I was for your nomination, Dean Koh. 

Senator LUGAR. Perhaps we better end the hearing before there 

are further—— 

Senator Shaheen. 

Senator SHAHEEN. No. 

Senator LUGAR. Well, I thank the Senators. I thank you very 

much, Dean Koh, for your testimony, and for your response to our 

questions both before the hearing and during the hearing. 

I would just observe that simply as a general editorial opinion 

that, as you have noted, this comes before the Judiciary Committee 

much more frequently than before this committee. But there are 

33 

enormous debates in the Senate as well as the American people 

about various legal principles, even discussion of various constitutional amendments and their meaning for each one of us. 

And as a rule, thank goodness the Judiciary Committee deals 

with this and witnesses who are hoping to become judges and at 

various levels, and these are serious issues in which many Americans believe the judiciary is often making law as opposed to interpreting and judging it. 

However, the dilemma obviously for us today is that the State 

Department does require a legal counsel—not a judge, as you pointed out, but a counsel—and hopefully, someone of experience and 

wisdom who has seen a great deal of American foreign policy as 

well as judicial principles. So we appreciate very much your preparation for the hearing. 

Let me just indicate, as Senator Kerry has requested, that it 

would be helpful that the record remain open until the end of the 

day tomorrow—and that would be Wednesday—for members to 

submit additional questions for the record. And we would ask you, 

Dean, to respond as rapidly as possible to those questions so the 

record can be completed. 

Then our chairman, Senator Kerry, at some appropriate moment 

will call for a business meeting of the committee to consider your 

nomination at that point. 

We thank you again, and we thank all who have come to support 

you today. And the hearing is adjourned. 

Mr. KOH. Thank you so much, Senator. 

[Whereupon, at 4:00 p.m., the hearing was adjourned.] 

Responses to Additional Questions Submitted for the 

Record by Members of the Committee 

RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED FOR THE RECORD

TO HAROLD KOH BY SENATOR LUGAR

Question No. 1. The United States has historically taken the position that the 

International Covenant on Civil and Political Rights does not apply to U.S. actions 

outside the territory of the United States, including extraterritorial actions undertaken during the course of armed conflict. If confirmed as Legal Adviser, do you intend to recommend any change in this position? If so, please explain the changes 

you intend to propose and the reasons for them. 

Answer. I recognize that the question of the extraterritorial scope of the International Covenant on Civil and Political Rights has received particular attention 

during the last several years. But it would be premature for me to suggest what 

interpretation I would recommend until I have had the opportunity to review fully 

the U.S. Government’s rationale of its position and to engage in full discussions of 

this issue with all relevant U.S. Government legal offices. If confirmed, I would look 

forward to doing so, as well as to consulting further with members of this committee 

and other interested Members of Congress on this important issue. 

Question No. 2. In a 2007 article in the Journal of International Economic Law, 

you criticized positions taken by the Bush administration in litigation under the 

Alien Tort Statute and stated, inter alia, that ‘‘there has been no change in the 

wording of either the Alien Tort Statute (ATS) or the Torture Victim Protection Act 

(TVPA), and thus, no apparent legal reason why the United States should suddenly 

depart from the positions of the Carter and Clinton administrations supporting the 

use of U.S. courts for Filartiga-type recovery under these two statutes.’’ 

• Under what circumstances do you believe the executive branch may appropriately change its interpretation of treaties or statutes from those taken under 

prior administrations? 

34 

Answer. I firmly believe in the value of continuity in legal interpretation of treaties and other legal obligations. Our legal system is based on a deep respect for legal 

precedent, although it does allow for evolution of the law to address new issues and 

challenges. My view is that the executive branch should seek to offer consistent interpretations of treaties and statutes and, to promote this continuity, should give 

significant weight to the legal judgments and precedents of prior administrations. 

This is particularly true of statutes such as the Alien Tort Claims Act and the Torture Victims Protection Act, where Congress assigned a task not to the executive, 

but to the courts. In all cases, I would apply a presumption that an existing interpretation of the executive branch should stand, unless a considered reexamination 

of the text, structure, legislative or negotiating history, purpose and practice under 

the treaty or statute firmly convinced me that a change to the prior interpretation 

was warranted. 

Question No. 3. If confirmed as Legal Adviser, to what extent will you consider 

yourself bound in providing advice to the Department of State on questions of statutory or treaty interpretation by prior executive branch interpretations of the statute 

or treaty in question? 

Answer. If confirmed as Legal Adviser, on statutory and treaty matters, as with 

all legal standards, I would begin by undertaking a full and careful review of the 

views of previous administrations. I would give significant weight to legal judgments 

and precedents of prior administrations. I would look first to prior judicial and executive branch interpretations of the treaty or statute in question, with the presumption that the existing executive branch interpretation should stand, unless a considered reexamination of the text, structure, legislative or negotiating history, purpose 

and practice under the treaty or statute firmly convinced me that a change to the 

prior interpretation was warranted. 

Question No. 4. In a 1994 article in the Yale Law Journal discussing the U.S. 

Supreme Court’s decision in Sale v. Haitian Centers Council you wrote that ‘‘Haitian Centers Council takes its place atop a line of recent Supreme Court precedent 

misconstruing international treaties. In the past few years, the Court has sanctioned the emasculation of a range of treaties governing service of process, taking 

of evidence, bilateral extradition, and now nonrefoulement.’’ 

• Under what circumstances, if any, do you believe the executive branch may 

adopt a different interpretation of the legal effect of a treaty than that adopted 

by the U.S. Supreme Court in a case interpreting the treaty? 

Answer. Under our Constitution, the Supreme Court has the final duty to interpret a particular treaty and to say what it requires as a matter of domestic law. 

Where the Supreme Court has spoken definitively on the legal effect of a treaty, its 

rulings are obviously controlling. Where the Court has not spoken definitively, the 

executive branch should provide its best interpretation of the legal effect of the 

treaty by looking to the Court’s and lower courts’ rulings and prior executive branch 

interpretations of the treaty in question, as well as to the text, structure, negotiating history, object and purpose, and practice under the treaty, as well as any reservations, understandings and declarations that accompany the advice and consent 

of the Senate. 

Question No. 5. If confirmed as Legal Adviser, to what extent will you consider 

yourself bound in providing advice to the Department of State on questions of treaty 

interpretation by interpretations of the treaty in question adopted by the U.S. 

Supreme Court? 

Answer. As my writings reflect, my long-held view is that a Supreme Court ruling 

on a matter of treaty interpretation is authoritative as U.S. law and binds the political branches of the Federal Government, lower courts, and the states. If confirmed, 

when advising the Department of State on questions of treaty interpretation, I 

would defer to the Supreme Court’s interpretation whenever the Court has spoken 

definitively on the particular question of treaty interpretation at issue. 

Question No. 6. In testimony before this committee in 2002 on the Convention on 

the Elimination of All Forms of Discrimination Against Women (CEDAW) you 

stated that ‘‘The United States can and should accept virtually all of CEDAW’s obligations and undertakings without qualification . . . Although past administrations 

have proposed that ratification be accompanied by certain reservations, declarations, 

and understandings, only one of those understandings, relating to limitations of free 

speech, expression, and association, seems to me advisable to protect the integrity 

of our national law.’’ 

• Under what circumstances, if any, do you believe the executive branch may 

adopt a different interpretation or application of a treaty’s provisions than those 

35 

reflected in reservations, understandings, and declarations accompanying the 

Senate’s advice and consent to the treaty? 

Answer. My long-held view is that the executive branch is bound to comply with 

the reservations, understandings, and declarations that accompany the Senate’s 

advice and consent to ratification of a treaty. As I have noted in my writings, it is 

clear that the Senate may give its consent to treaty ratification subject to conditions 

ranging from reservations to declarations to understandings of what particular 

treaty terms mean. If the President and our treaty partner choose to make a treaty 

by exchanging instruments of ratification, they can only make the treaty to which 

the Senate has advised and consented. Accordingly, under U.S. law, the President 

is bound, not only at the time of ratification but after, to honor the conditions on 

which the Senate has based its consent. 

Question No. 7. If confirmed as Legal Adviser, to what extent will you consider 

yourself bound in providing advice to the Department of State on questions of treaty 

interpretation and application by reservations, understandings, and declarations 

accompanying the Senate’s advice and consent to the treaty in question? 

Answer. Should I be confirmed as Legal Adviser, I would consider myself bound 

to honor the reservations, understandings, and declarations that accompany the 

Senate’s advice and consent to a treaty. I have expressed in my writings my belief 

that the President is bound to honor the conditions upon which the Senate has 

based its consent. Under such circumstances, it follows that the President’s subordinates, including the Legal Adviser to the Secretary of State, would be bound to 

honor those conditions as well. 

Question No. 8. You have been Counsel of Record in amicus briefs filed in the U.S. 

Supreme Court urging the Court to consider the law and practice of foreign jurisdictions when interpreting rights-bearing provisions of the U.S. Constitution. If confirmed as Legal Adviser, what role, if any, do you expect to have in the Obama 

administration’s decisions on the interpretation of rights-bearing provisions of the 

U.S. Constitution, and on positions the Obama administration takes on such issues 

in litigation? 

Answer. Since the President nominated me, much has been said about my views 

on this question. If confirmed, I would be taking the oath to support and defend the 

Constitution of the United States. My family settled here in part to escape from oppressive foreign law, and it was America’s law and commitment to human rights 

that drew us here and have given me every privilege in my life that I enjoy. My 

life’s work represents the lessons learned from that experience. Throughout my 

career, both in and out of government, I have argued that the U.S. Constitution is 

the ultimate controlling law in the United States and that the Constitution directs 

whether and to what extent international law should guide courts and policymakers. 

Within the executive branch, the Department of Justice has been assigned the primary responsibility for interpreting the rights-bearing provisions of the U.S. Constitution. It is my understanding that the Department of Justice consults with the 

Department of State on the interpretation of a rights-bearing provision of the U.S. 

Constitution in cases where that interpretation implicates the foreign relations of 

the United States. If confirmed, I would expect, as prior Legal Advisers have done, 

to participate in such discussions with the Department of Justice and other relevant 

agencies in the U.S. Government when those cases arise. 

Question No. 9. A December 12, 2008, Memorandum of Understanding between 

the William J. Clinton Foundation and the Obama Presidential Transition Foundation governs certain fundraising activities of the Clinton Foundation during the 

period of Hillary Rodham Clinton’s service as Secretary of State. The Memorandum 

of Understanding provides, inter alia, for the State Department’s designated agency 

ethics official to review and advise on ethics issues potentially raised by certain proposed contributions to the Clinton Foundation. 

• The State Department’s designated agency ethics official is employed within the 

Department’s Bureau of Legal Affairs, over which you will have management 

responsibility if confirmed as Legal Adviser. If confirmed, what role, if any, do 

you expect to play with respect to the functions performed and the advice provided by the designated ethics official on issues addressed by the Memorandum 

of Understanding? 

Answer. Under the December 12, 2008, Memorandum of Understanding between 

the William J. Clinton Foundation and the Obama Presidential Transition Foundation, the Department of State’s Designated Ethics Official, who also serves as a Deputy Legal Adviser in the Office of the Legal Adviser, has been given specified ethics 

duties with respect to reviewing and advising on certain foreign government conVerDate Nov 24 2008 12:26 Apr 01, 2011 Jkt 062931 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 S:\HEARING FILES\111TH CONGRESS\NOMINATION HEARINGS THAT WE WILL PRINT\0
36 

tributions. I believe that this official as well as other career government attorneys 

must be allowed to provide their considered, independent judgments on ethics matters to senior Department officials. If confirmed as Legal Adviser, I would take all 

necessary steps to support that goal. 

Question No. 10. In a number of law review articles, you have developed a theory 

of ‘‘transnational legal process’’ in which you seek to explain ways in which states 

comply with rules of international law through the internalization of such rules into 

domestic law and processes. In a 2004 law article in the Berkeley Journal of International Law addressing this theory you wrote: ‘‘Some have asked me, ‘Is your 

notion of transnational legal process an academic theory? Is it an activist strategy? 

Or is it a blueprint for policymakers?’ Over time, my answer has become, ‘It is all 

three.’ ’’ 

• In what sense do you consider your theory of transnational legal process a blueprint for policymakers? 

Answer. U.S. policymakers frequently use transnational legal process as a tool to 

urge other nations to obey international law. As I explain in the 2004 article, 

‘‘transnational legal process’’ is a shorthand description for how state and nonstate 

actors interact in a variety of domestic and international fora to encourage nations 

to obey international norms as a matter of domestic law. For example, U.S. policymakers encouraged China to join the World Trade Organization and then to modify 

Chinese domestic law to conform with international rules on intellectual property, 

an objective that is important to U.S. economic and other interests. When designing 

legal rules, U.S. policymakers may take into account all available enforcement 

mechanisms, with an eye toward furthering U.S. foreign policy objectives. 

Question No. 11. What aspects of your theory of transnational legal process do you 

believe are relevant to the role of the Legal Adviser to the Department of State and, 

if confirmed, what guidance do you expect to draw from this theory in performing 

the functions of the Legal Adviser? 

Answer. My approach to transnational legal process assumes that U.S. Government officials, including those in the State Department, must first and foremost uphold the Constitution and laws of the United States of America. When U.S. foreign 

policy decisions are supported by the law, they enjoy the legitimacy that comes from 

compliance with the law and reflect America’s commitment to the rule of law as a 

guiding value. Government lawyers enable policymakers to achieve policy objectives 

within the confines of the law and urge policymakers to reexamine any policy objective that cannot be achieved lawfully. Thus, when the Legal Adviser helps to negotiate a treaty, for example, he helps to guide policy choices by both our government 

and its treaty partner into a lawful channel that promotes the rule of law. 

Question No. 12. In a 2007 comment in Michael Doyle’s book ‘‘Striking First,’’ you 

wrote ‘‘[I]f you look at some of the yielding lawyers with whom the current President has surrounded himself, at the White House counsel’s office, as attorney general, and as general counsel of the Defense Department, you quickly conclude that, 

sadly, these are not the kind of strong-willed, independent-minded attorneys who, 

in a unilateral situation, are likely to impose restraints upon the President’s will, 

based on the rule of law.’’ 

• In the context of these comments, please discuss the general approach you 

would intend to take, if confirmed, in providing legal advice to the Secretary 

of State and other Department officials, and the role you believe the Legal 

Adviser should play in assisting policymakers to achieve desired policy objectives. 

Answer. If confirmed as Legal Adviser, my highest priority would be to provide 

the best possible legal advice to the Secretary of State and other State Department 

officials that is consistent with the Constitution and laws of the United States. 

Legal advisers should give policymakers honest and accurate advice about what 

obligations and opportunities the United States faces under international law, what 

room exists for good faith interpretation of legal terms, and what consequences the 

United States might expect from taking positions that are inconsistent with its 

international obligations. If confirmed, I would work to help client officials achieve 

desired policy objectives, but only so long as those objectives are consistent with the 

Constitution and our laws. 

During nearly 30 years of working alongside government lawyers—including my 

own time working in the Reagan administration as an attorney-adviser at the Office 

of Legal Counsel and in the Clinton administration as Assistant Secretary of State 

for Democracy, Human Rights and Labor—I have found that the best government 

legal counsel do not either ‘‘just say yes’’ or ‘‘just say no.’’ The first approach too 

37 

easily lends itself to lawyers bending the law to allow the administration to do 

whatever what it wants to do; the second approach, without more, too easily lends 

itself to lawyers who do not present policymakers with all available lawful options. 

A third approach, which I favor, involves the legal counsel working closely with policymakers throughout the policy process to develop alternative, lawful means of obtaining smart, sensible policy objectives. In all cases, though, a government lawyer 

must be prepared to hold policymakers to their oaths to support and defend the 

Constitution of the United States. If confirmed, that is what I would intend to do. 

Question No. 13. In a 2004 law article in the Berkeley Journal of International 

Law you wrote the following: ‘‘Turning to the United States, the final member of 

the ‘axis of disobedience,’ our greatest surprise should be how quickly after September 11 we turned the story from the noncompliance of others with international 

law, to our own noncompliance. Examples abound: First and most obviously, the 

U.S. unsigning of the International Criminal Court Treaty; second, the U.S. attitude 

toward the Geneva Conventions—including its actions in Abu Ghraib, its decision 

to create zones in Guantanamo in which people are being held without Geneva Convention rights as well as to designate certain U.S. citizens within the United States 

as enemy combatants; and third, the death penalty, which has become a growing 

irritant in the relationship between the United States and the European Union, 

even in the war against terrorism.’’ 

• Please explain in what sense you believe the so-called ‘‘unsigning’’ of the Rome 

Statute of the International Criminal Court amounts to noncompliance with 

international law. Do you believe that international law requires states to become parties to particular treaties or precludes states from expressing an intention not to become parties to treaties they have previously signed but not 

ratified? 

Answer. Unfortunately, aspects of the article cited have been misunderstood by 

some commentators. I do not believe that international law precludes states from 

expressing an intention not to become parties to treaties they have previously 

signed but not ratified. However, I do believe that America’s reputation for respect 

for international law, and its capacity to secure the compliance of other nations, can 

be harmed by actions that withdraw from or undermine international legal obligations that have been previously undertaken. The specific point I was making in the 

article is that when we are perceived by the world to be noncompliant with international norms and obligations, we may encourage other countries to do the same. 

Question No. 14. Please explain in what sense you believe that U.S. practice with 

respect to the death penalty amounts to noncompliance with international law. 

Answer. The specific point I was making in the article was that the continuing 

U.S. use of the death penalty can pose an obstacle to international cooperation to 

achieve compelling national objectives, for example, to the extent that the possibility 

of the death penalty may complicate the extradition of terrorist suspects from the 

European Union. The Supreme Court has also recently found that particular U.S. 

death penalty practices do not comply with constitutional standards, invalidating 

the practice of executing offenders with mental retardation and offenders below the 

age of 18. Atkins v. Virginia, 536 U.S. 304, 316–17 n.21 (2002); Roper v. Simmons, 

543 U.S. 551, 577 (2005). In neither case did the Court apply international law directly. But in both cases, the majority did find that the challenged practice violated 

the ‘‘cruel and unusual punishments’’ clause of the eighth amendment of the United 

States Constitution, first by looking to the practice of domestic legislatures and 

juries, and then confirming the ‘‘unusual’’ nature of the practice by examining 

whether those practices had also become ‘‘unusual’’ internationally, contrary to the 

‘‘evolving standards of [human] decency’’ long applied to construe the eighth amendment. See Trop v. Dulles, 356 U.S. 86, 101 (1958). 

Question No. 15. In November 2001 you delivered the Edward L. Barrett, Jr. Lecture on Constitutional Law at the University of California, Davis School of Law. In 

that lecture, you discussed your tenure as Assistant Secretary of State for Democracy, Labor and Human Rights between 1998 and 2001, and stated ‘‘While I recognized that the United States stood increasingly among the minority of nations in 

its adherence to the practice [of capital punishment], I did not believe that a customary norm of international law had yet formed condemning the practice.’’ 

• Do you believe that a customary norm of international law currently exists condemning the practice of capital punishment? If so, what consequences do you 

believe flow from the existence of such a norm? If confirmed as Legal Adviser, 

what steps would you recommend that the United States take in light of any 

such norm? 

38 

Answer. While I recognize that the United States stands increasingly among the 

minority of nations in its adherence to the practice of capital punishment, I do not 

believe that a customary norm of international law has formed prohibiting the general practice of capital punishment. 

Question No. 16. In the same lecture, you stated that prior to accepting the position as Assistant Secretary for Democracy, Labor, and Human Rights, ‘‘I wondered 

whether I could publicly defend the legality of the death penalty. My initial view 

was that, whatever my moral beliefs, as an official sworn to uphold the Constitution 

and laws of the United States, I could defend the legality of the death penalty, so 

long as it was, in fact, administered as Gregg and Furman required according to 

exacting constitutional procedures.’’ Later in the same lecture, you stated that ‘‘One 

day during my time in government, while being challenged on the death penalty, 

I could no longer find it in my heart to defend the practice. I found myself morally 

convinced that its continuing use is not only utterly wrong, but also unconstitutional.’’ 

In recent years, legal advisers to the State Department have been called upon to 

address and defend aspects of U.S. practice with respect to the death penalty, including in litigation before the International Court of Justice and in connection with 

periodic reports of the United States to human rights treaty bodies monitoring the 

implementation of the International Covenant on Civil and Political Rights and the 

Convention on the Elimination of Racial Discrimination. 

• In light of the development you have described in your views on capital punishment as practiced in the United States, do you believe you will be able to represent the United States on issues related to capital punishment if you are confirmed as Legal Adviser? Please explain the approach you would intend to take 

on such issues. 

Answer. If confirmed as Legal Adviser, I would take an oath to support and defend the Constitution of the United States. In carrying out my governmental duties, 

I would stand in much the same position as a judge in a state that administers the 

death penalty who personally opposes the death penalty, but still must administer 

that penalty because it is the law of his or her state and because he or she has 

taken an oath to uphold that law. Because I acknowledge that no norm of customary 

international law has formed condemning the general practice of capital punishment, I would have no difficulty making such an assertion to an international body. 

Question No. 17. In testimony before the Senate Judiciary Committee in September 2008, you stated that the next U.S. administration ‘‘should reengage diplomatically with the Contracting Parties to the International Criminal Court to seek 

resolution of outstanding U.S. concerns and pave the way for eventual U.S. ratification of the Rome Treaty.’’ 

• Please indicate what specific concerns you believe would need to be addressed 

before it would be advisable for the United States to consider becoming a party 

to the Rome Statute. 

Answer. The recent bipartisan American Society of International Law Task Force 

on the International Criminal Court—which was cochaired by former Legal Adviser 

William H. Taft IV and Judge Patricia Wald and included former Supreme Court 

Justice Sandra Day O’Connor—recommended that the United States could announce 

a policy of ‘‘positive engagement’’ with the International Criminal Court. Such a policy would allow the United States to help shape the development of the Court and 

could facilitate future consideration of whether the United States should join the 

Court. See ‘‘American Society of International Law Task Force, U.S. Policy Toward 

the International Criminal Court: Furthering Positive Engagement iii’’ (2009), 

http://www.asil.org/files/ASIL-08-DiscPaper2.pdf. 

In considering such a recommendation, among the many questions would be: 

Whether to announce a new policy toward the Court; whether and how to respond 

to the 2002 ‘‘unsigning’’ of the Rome Statute; whether and how to support the ICC’s 

Prosecutor in particular cases; whether to participate in some capacity in the 2010 

conference that will address the definition of the crime of aggression; whether to 

propose amendment or waiver of particular provisions of the American Servicemembers’ Protection Act; and whether ultimately to seek ratification of the Rome 

Treaty, a step that would require the Senate’s advice and consent. All of these 

issues would require extensive interagency discussions, in which I would hope to 

participate if confirmed. 

In particular, the U.S. Government has long expressed concern about the authority of the ICC Prosecutor to initiate investigations of U.S. soldiers and government 

officials stationed around the world. Particularly because the United States has the 

largest foreign military presence in the world, this is an important issue on which 

39 

we would need further discussion and clarification within the government. If confirmed, I would also wish to consult extensively with military commanders and 

other experts, and members of this committee, before I would deem it advisable to 

recommend to the Secretary of State and the President that the United States take 

any steps with regard to the Rome Statute. 

Question No. 18. In the same testimony, you urged that ‘‘at the earliest opportunity, the new Secretary of State should withdraw the Bush administration’s May 

2002 letter to the United Nations ‘unsigning’ the U.S. signature on the Rome Treaty 

creating the ICC, restoring the status quo ante that existed at the end of the Clinton administration.’’ 

• What do you believe the legal effect of such an action would be? What obligations, if any, would the United States incur in relation to the Rome Statute if 

it took this step? 

Answer. As a matter of international law, the May 2002 letter did not actually 

result in the United States ‘‘unsigning’’ the Rome Statute, as the United States signature remains on the operative legal instruments. The stated intent of the May 

2002 letter was instead to relieve the United States of any current obligation to refrain from acts that would defeat the Rome Statute’s object and purpose. A withdrawal of the May 2002 letter would neither bind the United States to become a 

party to the Rome Statute, nor increase the risk of prosecution posed to U.S. citizens, such as soldiers stationed abroad. If confirmed, in considering whether to 

make any recommendations to the Secretary of State and the President with regard 

to the Rome Statute, I would consult fully within the executive branch, including 

with the military, as well as with members of this committee. 

Question No. 19. The Bush administration’s May 2002 letter stated, in pertinent 

part, that ‘‘the United States does not intend to become a party’’ to the Rome Statute. Is it the position of the Obama administration that the United States does intend to become a party to the Rome Statute? 

Answer. With respect to the position of the Obama administration, I would refer 

you to the answer that Secretary Clinton provided to this committee during her confirmation hearing in response to a written question concerning the administration’s 

position on becoming a party to the Rome Statute. If confirmed, I would hope to participate in discussions with the Secretary of State, other officials within the State 

Department and other agencies, and members of the Senate Foreign Relations Committee and other interested Members of Congress on this important issue. 

Question No. 20. The Assembly of States Parties to the Rome Statute is in the 

process of considering whether to adopt a definition of a crime of aggression over 

which the International Criminal Court would exercise jurisdiction. What interests 

do you believe the United States has with respect to whether, and in what form, 

the Assembly of States Parties adopts a crime of aggression? What steps do you believe the United States should take to advance and protect its interests in connection with this process? 

Answer. The crime of aggression was included, but not defined, as a potentially 

prosecutable offense in the 1998 International Criminal Court negotiations. A review conference will be held next year at which parties to the Rome Statute and 

observers are expected to discuss both the definition, and the circumstances under 

which the crime of aggression could be investigated and prosecuted. The United 

States has substantial interests in whether, and in what form, the Assembly of 

States Parties adopts a definition of the crime of aggression as part of the Rome 

Statute. In particular, the United States has a strong interest in avoiding baseless 

charges of aggression against its own officials, soldiers, or allies. This concern would 

need to be addressed before I would recommend that the United States become a 

party to the Rome Statute. If confirmed, I would be interested in participating in 

deliberations both within the executive branch and with members of this committee 

and other interested Members of Congress about how the United States could participate in discussions, without becoming a party, to advance and protect U.S. interests in this process. 

Question No. 21. On March 29, the New York Times reported that a Spanish court 

was considering opening a criminal investigation into actions of former U.S. officials 

involved in decisions about detention and interrogation policy during the Bush 

administration. What U.S. interests do you believe are implicated by efforts of foreign courts to assert criminal jurisdiction over sitting or former U.S. officials for acts 

undertaken in the course of their official duties? What do you believe is the appropriate role of the U.S. Government in responding to such cases? 

40 

Answer. There can be no doubt that very important U.S. interests are implicated 

by efforts of foreign courts to assert criminal jurisdiction over sitting or former U.S. 

officials for acts undertaken in the course of their official duties. The appropriate 

role of the U.S. Government in responding to such cases should be first to understand the procedural posture of the case, precisely how it arose, the nature of the 

allegations raised against the former U.S. Government officials, the shared aspects, 

if any, between the foreign prosecution and any other investigations or inquiries 

that may be pending or forthcoming in the United States, and the nature of any 

defenses that might be available in such proceedings. If confirmed, I would intend 

to follow such cases closely in coordination with the Department of Justice and other 

U.S. Government agencies, and to work actively with our foreign counterparts 

through legal and diplomatic channels, as appropriate to the particular case. In so 

doing, I would seek the advice of members of this committee and other interested 

Members of Congress and keep them fully informed. 

Question No. 22. Successive U.S. administrations have from time to time filed 

briefs in cases in U.S. courts under the Alien Tort Statute in which the United 

States itself was not a party. Under what circumstances do you believe it is appropriate for the United States to submit views in such cases? What principles do you 

believe should govern any positions to be taken by the United States in such cases? 

Answer. It is appropriate for the United States to submit its views in Alien Tort 

Claims Act cases when a court asks it to do so. The United States might also 

proactively file such a brief when it deems it necessary, for example, to ensure consistency with the views of the United States on the content of international law; to 

guarantee respect for the separation of powers, including the authority of Congress 

and the courts; and to protect important foreign policy interests of the United 

States. Key decisions about when to file and what position to take in any such amicus filings will depend upon multiple factors, including the facts and circumstances 

of each case, the importance of the legal principles at stake and the likelihood that 

they will be furthered by such a filing, and the U.S. Government’s assessment of 

whether adjudication of the Alien Tort claims at issue at that time would or would 

not prejudice or impede the conduct of U.S. foreign policy interests. 

Question No. 23. In a 2005 article in the Indiana Law Journal, discussing the 

Alien Tort Statute, you wrote that ‘‘Under U.S. law, the President may not, on his 

own, violate a jus cogens norm such [as] those against torture or slavery or genocide. In the event that the President does, he as well as his subordinates may be 

sued under the [Alien Tort Claims Act].’’ 

• Is it the position of the Obama administration that the Alien Tort Statute provides for civil damage remedies against individual U.S. officials, including the 

President, in connection with actions taken in the course of their official duties? 

Answer. My understanding is that the Obama administration has continued to 

argue in court that, in cases asserting claims for civil damages under the Alien Tort 

Claims Act against U.S. officials in connection with actions taken in the course of 

their official duties, the United States should be substituted for the officials pursuant to the Westfall Act, 28 U.S.C. § 2679, and the case against the United States 

should then be governed by the Federal Tort Claims Act. In the article referred to, 

I was only pointing out that the Supreme Court has decided that the Alien Tort 

Claims Act is potentially available as a basis for Federal jurisdiction in certain cases 

dealing with torture allegations. See Sosa v. Alvarez-Machain, 542 U.S. 692, 725 

(2004). In so saying, I did not address many of the other questions raised by such 

an action, including the application of the Westfall Act, domestic law immunities 

(including Presidential immunity), or other defenses that might be available to the 

official defendants. 

Question No. 24. On February 28, 2005, President Bush determined that the 

United States would comply with the judgment of the International Court of Justice 

in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United 

States). To achieve such compliance, President Bush issued a memorandum directing state courts to review and reconsider the convictions and sentences of the Mexican nationals at issue in the case, who were not advised in a timely fashion of their 

rights under the Vienna Convention on Consular Relations to have Mexican consular officials notified of their arrests in the United States on State criminal 

charges. In March, 2008 the U.S. Supreme Court held in Medellin v. Texas that 

President Bush lacked the authority to compel the States to take such actions. 

• What further actions, if any, do you believe the Federal and/or state governments should take to give effect to the ICJ’s Avena judgment? If confirmed as 

41 

Legal Adviser, what steps would you recommend that the United States take 

with respect to this issue? 

Answer. If confirmed as Legal Adviser, I would strive to ensure that the United 

States lives up to its international obligation to comply with decisions of the International Court of Justice (ICJ). With respect to the Court’s decision in Avena, I 

know that the State Department is committed to training Federal, State and local 

officials on our consular notification and access obligations under the Vienna Convention on Consular Relations. I understand that the Department’s efforts have 

been well received by these officials and that the United States is now doing a substantially better job of complying with these obligations than in the past. If confirmed, I would intend to review thoroughly what additional efforts can and should 

be taken to comply with the ICJ’s judgment. 

Question No. 25. Last term in Medellin v. Texas, the Supreme Court held that 

the President could not direct State officials to give effect to treaty obligations of 

the United States at issue in the case because the relevant treaties were not selfexecuting and the President did not have other sources of authority on which he 

could rely to direct such actions. 

• In light of this decision, what further steps, if any, do you believe the executive 

branch and Congress should take in order to ensure that the United States will 

be able to fulfill its obligations under treaties to which it is currently party? 

Answer. Upon close analysis, I would not expect the ruling to create broader problems for overall U.S. treaty compliance with existing treaties. The Court emphasized 

that it was not suggesting that other ‘‘treaties can never afford binding domestic 

effect to international tribunal judgments.’’ Medellin v. Texas, 128 S.Ct. 1346, 1365 

(2008). To the extent that the Court’s judgment applies more broadly to ratified 

treaty provisions outside of the context of international dispute resolution, the Court 

was careful to mention with approval the direct enforcement of a number of selfexecuting treaties. While the executive branch does rely in certain contexts on direct 

judicial enforceability of treaty provisions to ensure U.S. compliance, more frequently, the executive branch seeks implementing legislation or relies upon existing 

legislation or executive branch action or restraint to ensure that U.S. treaty obligations are fulfilled. 

While, for these reasons, I do not believe that the Court’s decision in Medellin 

poses a serious broader threat to future U.S. treaty compliance, I do think that 

there is room for improvement during the treaty ratification process, including, 

among other things, the need to provide greater clarity regarding the domestic legal 

effect of treaty provisions, as the Senate has recently been doing. Should I be confirmed as Legal Adviser, I would of course welcome further dialogue on this issue 

with this committee and other interested Members of Congress, in search of ways 

to continue improvement of that process. 

Question No. 26. What steps do you believe the executive branch and Congress 

should take during the process of considering future treaties to which the United 

States may become party to ensure that the United States will be able to fulfill obligations it would undertake under such treaties? 

Answer. Should I be confirmed as Legal Adviser, I would support the recent practice of this committee to include, where appropriate, in resolutions of advice and 

consent a joint Executive and Senate view regarding the self-executing nature of 

specific provisions of new treaties, which will undoubtedly give helpful guidance to 

U.S. courts that are considering the direct enforceability of a particular treaty provision. As I noted in my answer to Question 7, I have long maintained that the President is bound, under U.S. law, to honor the conditions upon which the Senate has 

based its consent. I would also take steps to promote clarity in appropriate documents regarding the proposed domestic implementation of a treaty, including its 

domestic legal status, both before and during the process of seeking advice and 

consent. 

Question No. 27. During the last Congress, the Bush administration submitted to 

the Senate for advice-and-consent treaties on defense cooperation with the United 

Kingdom and with Australia. Without any prior consultation with the Senate, the 

Bush administration took the extraordinary step of specifying in the text of each of 

these treaties that their provisions would be self-executing in the United States. 

• Do you believe the Senate has a coequal role with the executive branch in deciding whether treaties to which the United States may become party will be 

treated as self-executing for the purposes of U.S. law? 

Answer. The Senate has played an important historical role in the determination 

of the domestic legal effect of treaties, and if confirmed, I would expect to respect 

42 

that role by consulting with the Senate on this and other aspects of proposed treaties. In my writings, I have long argued that article II of the Constitution mandates 

that the Senate and President act as partners in the treaty process. I believe the 

executive branch should respect the long historical tradition of prior executive 

branch consultation with the Senate regarding treaties, a tradition that also enables 

the Senate more effectively to fulfill its own constitutional function of advice and 

consent. 

Question No. 28. If confirmed, will you consult with the Senate on arrangements 

for implementing obligations the United States would assume under treaties submitted to the Senate for its advice and consent? 

Answer. Yes. As my writings make clear, I believe the Senate has an essential 

role to play in the implementation of treaties. If confirmed, I would consult fully 

with the Senate on arrangements for implementing obligations the United States 

would assume under treaties submitted to the Senate for its advice and consent. I 

would also urge other agencies with the lead on particular implementing legislation 

to do the same. 

Question No. 29. What legal instruments and rules do you believe govern the detention of individuals captured in connection with U.S. military operations in Iraq 

and Afghanistan? 

Answer. As a general matter, the Obama administration is currently conducting 

an ongoing policy review of its detention authorities. I have not participated in that 

review, and therefore am not in a position to comment on what recommendations, 

if any, are being developed by the detention policy task force that may affect the 

bases for and scope of U.S. detentions in armed conflicts and counterterrorism 

operations. 

Detentions of individuals captured in connection with U.S. military operations in 

Iraq and Afghanistan are governed by the law of armed conflict and in some cases 

by rules of local law, although the specific international law rules applicable to a 

particular detainee will depend upon both the nature of the conflict at a particular 

point in time, and the status of the individual within the context of that conflict. 

The legal framework governing the treatment of all detainees in U.S. custody in 

Iraq and Afghanistan includes, among other provisions of law, the baseline treatment rules found in Common Article 3 of the 1949 Geneva Conventions; the 

Detainee Treatment Act of 2005 and the Federal Torture Statute; Executive Order 

13,491; and various Department of Defense rules and regulations (including the 

Army Field Manual). 

In Iraq, additional rules applicable to detainees as a matter of law have changed 

as the legal framework governing the U.S. presence in Iraq has changed. U.S. forces 

currently operate in Iraq pursuant to the ‘‘Agreement Between the United States 

of America and the Republic of Iraq On the Withdrawal of United States Forces 

from Iraq and the Organization of Their Activities during Their Temporary Presence 

in Iraq’’ (‘‘Security Agreement’’). Article 22 of the Security Agreement addresses 

both the disposition of the security detention population in U.S. custody as of the 

entry into force of the Agreement, and new detainees whom U.S. forces may arrest 

or capture in the course of their ongoing mission in Iraq. 

In Afghanistan, U.S. forces taking part in the International Security Assistance 

Force (‘‘ISAF’’) are operating in Afghanistan under (most recently) U.N. Security 

Council Resolution 1833 (2008), a chapter VII resolution that authorizes Member 

States participating in ISAF to ‘‘take all necessary measures to fulfill its mandate,’’ 

which includes detention. The United States also continues to lead the coalition 

called ‘‘Operation Enduring Freedom,’’ and to detain individuals under legal authorities that include the Authorization for Use of Military Force of September 18, 2001 

(Public Law 107–40), as confirmed by the Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507, 517–18 (2004). In addition to the legal requirements noted 

above, the Department of Defense periodically reviews the status of the detainees 

it holds in its custody in Afghanistan. Questions relating to whether certain detainees at the Bagram Air Field enjoy constitutionally protected habeas corpus rights 

are the subject of ongoing litigation. 

Question No. 30. What legal instruments and rules do you believe govern the 

detention of members of al Qaeda captured by the United States outside Iraq and 

Afghanistan in operations undertaken pursuant to authorization for the use of military force contained in S.J. Res. 23 of September 18, 2001? 

Answer. As a general matter, the Obama administration is currently conducting 

an ongoing policy review of its detention authorities. I have not participated in that 

review, and therefore am not in a position to comment on what recommendations, 

if any, are being developed by the detention policy task force that may affect the 

43 

bases for and scope of U.S. detentions in armed conflicts and counterterrorism 

operations. 

With regard to detentions undertaken pursuant to the Authorization for Use of 

Military Force of September 18, 2001 (Public Law 107–40), the Supreme Court held 

in Hamdan v. Rumsfeld that Common Article 3 of the 1949 Geneva Conventions 

governs the treatment of al Qaeda detainees, 548 U.S. 557, 629–31 (2006). In addition to baseline treatment rules found in Common Article 3, the legal framework 

governing the treatment of al Qaeda detainees in U.S. custody includes, among 

other provisions of law, the Detainee Treatment Act of 2005 and the Federal Torture Statute; Executive Order 13,491; and various Department of Defense rules and 

regulations (including the Army Field Manual). 

With regard to detainees held at the Guantanamo Bay Detention Camp, Executive Order 13,492 created a review process whereby participating agencies are required to consolidate information pertaining to Guantanamo detainees and, through 

a case-by-case status review, to determine whether they can be released or transferred, whether they can be prosecuted, or whether to select another lawful option 

with respect to their disposition. Executive Order 13,492 additionally ordered the 

Secretary of Defense to undertake a 30-day review of the conditions of confinement 

at Guantanamo Bay Detention Camp to ensure their compliance with all applicable 

laws, including Common Article 3 of the 1949 Geneva Conventions, and the Department of Defense has completed that review and made it public. Beyond these processes, the Supreme Court has confirmed in Boumediene v. Bush that Guantanamo 

detainees have a constitutionally protected right to seek the writ of habeas corpus 

in U.S. courts. Detainees held at the Bagram Air Field are currently being governed 

by the legal framework described in my response to Question 29. Questions relating 

to whether certain detainees at Bagram Air Field enjoy constitutionally protected 

habeas corpus rights are the subject of ongoing litigation. 

Question No. 31. In a 2007 article in the Cornell International Law Journal, you 

urged the United States to renounce the practice of extraordinary rendition. Under 

what circumstances, if any, do you believe the United States has the authority to 

transfer an individual to the custody of foreign law enforcement authorities in the 

absence of an extradition treaty? 

Answer. Under certain circumstances, as some senior administration officials have 

said, transfers of individuals outside extradition channels may be appropriate and 

lawful—such as when an individual is subject to deportation proceedings, with any 

necessary diplomatic assurances, or is transferred with the consent of the sending 

state to face legal process in the receiving state. 

In the article cited, when referring to the practice of ‘‘extraordinary rendition,’’ I 

was referring in particular to rendition of suspects to conditions of torture. I do not 

believe that rendition is lawful or permissible where the goal of the rendition is to 

transfer an individual to a foreign government so that he can be tortured. President 

Obama’s Executive Order 13,491 on ‘‘Ensuring Lawful Interrogations’’ created a 

task force specifically to examine the U.S. practice of transferring individuals to foreign nations. One goal of this task force is to ensure that such practices comply with 

the domestic laws, international obligations, and policies of the United States and 

do not result in the transfer of individuals to other nations to face torture. I understand that the State Department and its attorneys are playing an important role 

in that task force. 

Question No. 32. In a 2007 comment in Michael Doyle’s book ‘‘Striking First,’’ you 

discuss international law rules governing the use of force. You propose ‘‘that we 

move to a per se ban on unilateral anticipatory warmaking, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the 

form of prior permission.’’ 

• Under what circumstances, if any, do you believe a state may legitimately use 

force in response to threats that have not resulted in an attack on the state? 

Answer. I agree with the longstanding U.S. Government view that a state may 

use military force to defend itself if an armed attack occurs, or in the event that 

such an attack is imminent. Any action taken in response to such an imminent 

threat must be necessary and proportional; as Daniel Webster said in 1837 in his 

famous statement in the Caroline case, ‘‘the act justified by the necessity of selfdefense, must be limited by that necessity, and kept clearly within it.’’ Determining 

whether the traditional tests of imminence, necessity, and proportionality are satisfied in any particular case can present exceedingly difficult questions that would 

need to be evaluated in the context of the particular circumstances existing at the 

time and the precise nature of the threat being faced. In the comment quoted, I was 

observing the dangers of a doctrine that would reach well beyond these established 

44 

principles of self-defense to provide advance authority to an individual state such 

as North Korea to engage in ‘‘unilateral anticipatory warmaking’’ based on its own 

subjective balancing of four factors (lethality, likelihood, legitimacy, and legality). 

Question No. 33. A 2004 report by a high-level panel convened by then-U.N. Secretary General Kofi Annan stated that ‘‘a threatened State, according to long established international law, can take military action as long as the threatened attack 

is imminent, no other means would deflect it and the action is proportionate.’’ Do 

you agree with this statement? 

Answer. Yes. As noted above, the quoted statement follows ‘‘long established 

international law.’’ 

Question Nos. 34 and 35. In 2005, the United Nations World Summit endorsed 

the concept of a responsibility of states to protect populations from genocide, war 

crimes, ethnic cleansing, and crimes against humanity. The concept as endorsed by 

the United Nations provides that where states manifestly fail to protect their populations from such atrocities, the international community, acting through the U.N. 

Security Council, is prepared to take collective action in a timely and effective manner to provide such protection. Some commentators have asserted that this doctrine 

provides a basis on which states, individually or collectively, may use force to protect populations in other states from atrocities. 

• Do you believe that international law recognizes a right of individual states to 

use force without U.N. Security Council authorization to protect populations 

from atrocities? 

• If you believe in such a right, what principles govern such interventions? What 

impact would such a doctrine have on the general prohibition in international 

law against the use of force between states except in cases of self-defense? 

Answer. As in any case where the use of force is being contemplated, this situation presents some of the most difficult and fact-specific questions with which international law has had to deal. As U.N. Secretary General Kofi Annan said in 1999: 

To those for whom the greatest threat to the future of international order 

is the use of force in the absence of a Security Council mandate, one might 

ask . . . in the context of Rwanda: If, in those dark days and hours leading 

up to the genocide, a coalition of States had been prepared to act in 

defen[s]e of the Tutsi population, but did not receive prompt Council 

authorization, should such a coalition have stood aside and allowed the horror to unfold? 

Address to General Assembly, Sept. 20, 1999, http://www.un.org/News/ossg/sg/stories/statmentslsearchlfull.asp?statID=28. 

In any such case, I believe it would be important for the Legal Adviser to examine 

the case presented with extreme care and thoroughness, taking into account all relevant factors and circumstances, before advising the Secretary of State and the 

President on how to proceed. In addition to international legal considerations, it 

would also be important to build as broad support as possible among the American 

people and the Congress for any decision to use force in such circumstances, including working as closely as possible with the members of this committee. 

Question Nos. 36 and 37. On January 26, U.S. Permanent Representative to the 

United Nations Susan Rice stated that the administration remains ‘‘very deeply concerned about the ongoing genocide in Darfur.’’ Similarly on March 23, Acting State 

Department Spokesman Robert Wood stated ‘‘certainly what’s going on in Darfur is 

genocide.’’ Other observers have declined to characterize past and present events in 

Darfur as constituting genocide. 

• Do you believe that events currently taking place in Darfur meet the legal definition of genocide contained in article 2 of the Convention on the Prevention 

and Punishment of the Crime of Genocide? Please indicate the reasons for your 

conclusion. 

• When then-Secretary of State Colin Powell announced the Bush administration’s position in September 2004 that events then occurring in Darfur met the 

legal definition of genocide, he based his conclusion on a contemporaneous study 

conducted by the State Department documenting atrocities in Darfur, including 

field interviews with over 1,100 Darfur refugees. Has the Obama administration 

conducted a similar study of events currently taking place in Darfur? If not, 

does the administration intend to conduct such a study to inform future judgments it may make about the legal character of events in Darfur? 

Answer. As reflected in Secretary of State Colin Powell’s September 9, 2004, statement before the Senate Foreign Relations Committee, the Department of State’s 

45 

comprehensive review of the situation in Darfur provided the basis for the conclusion that the events on the ground met the requirements for genocide under the 

Convention on the Prevention and Punishment of the Crime of Genocide. That statement appeared to me to be well-reasoned, as Secretary Powell pointed to, among 

other things, a consistent and widespread pattern of killings, rapes, burning of villages and other acts that indicated the specific intent to destroy in whole or in part 

non-Arab groups in Darfur. I am not aware of what recent information may be 

available within the U.S. Government on this subject or what the Department’s 

plans might be for conducting a study on the subject. However, if confirmed, I would 

work closely with Secretary Clinton, others at the State Department, and the members of this committee to determine how best to address the situation in Darfur. 

Question No. 38. Some have criticized the U.N. Security Council’s targeted sanctions regime for failing to provide sufficient due process rights for individuals who 

are targeted for sanctions. In September, the European Court of Justice in the Kadi 

case invalidated European Community regulations implementing UNSC sanctions 

against al Qaeda and the Taliban as applied to two individuals on the ground that 

the process for adopting the sanctions failed to respect the individuals’ fundamental 

due process rights. 

• Do you believe the U.N. Security Council’s existing sanctions regimes fail to 

provide adequate protections for the due process rights of targeted individuals? 

Answer. Targeted sanctions are an important and effective tool for the Security 

Council. They are a valuable alternative to the use of force and to comprehensive 

economic sanctions that affect entire populations. At the same time, I understand 

why concerns have been raised that targeted sanctions operate unfairly and can be 

imposed on the wrong people. It is important that the sanctions process not only 

work, but also be perceived to work in a way that is fundamentally fair. With the 

support of the United States, the Security Council has taken recent steps to enhance 

fairness and transparency in the implementation of targeted sanctions. Additional 

steps to address due process concerns may well be necessary, and if confirmed I 

would devote considerable attention to working with our partner states to identify 

and implement those steps. 

Question No. 39. If confirmed as Legal Adviser, what steps would you recommend 

the United States take to respond to such challenges and to ensure that the Security Council retains the authority to implement effective targeted sanctions regimes? 

Answer. The United States has a strong interest in ensuring that targeted sanctions, which can be effective foreign policy tools, are imposed and implemented by 

the Security Council in a manner that is as fair and transparent as possible. For 

this reason, and because of our own fundamental sense of fairness and due process, 

I believe that the United States should continue to work with partner states to identify further improvements that could be made to United Nations targeted sanctions 

regimes. 

Question No. 40. In 2007, the U.N. General Assembly failed to elect a U.S. 

national to the International Law Commission for the first time since the ILC’s 

inception. The next elections to the ILC occur in 2011. What priority do you attach 

to electing a U.S. national to the ILC in these elections? If confirmed as Legal 

Adviser, what steps would you plan to take to ensure the election of a U.S. national 

to the ILC? 

Answer. Since its inception in 1947 until the last election in 2007, the International Law Commission (ILC) had always had a U.S. member. Although the members of the ILC serve in their personal capacities, not as representatives of their 

countries of nationality, I believe that the presence of a U.S. member is good both 

for the United States, in helping to ensure that U.S. perspectives are taken into 

account as the ILC undertakes its work, and for the Commission itself, which benefits from the perspective that a U.S. member can bring to bear. I was disappointed 

that the U.S. candidate in the last ILC election, Professor Michael Matheson, who 

had served with distinction on the Commission for several years, was not elected. 

I believe that electing a U.S. national to the ILC in 2011 should be an important 

priority for the United States. 

If confirmed as Legal Adviser, I would seek to identify the strongest possible U.S. 

candidate, and would welcome counsel from interested members of this committee 

and other U.S. communities knowledgeable about international law. I would then 

work within the State Department to make sure that efforts to support the election 

of the U.S. candidate are treated as a high priority. I think it could be particularly 

useful to work within the Western European and Others Group (WEOG), including 

in the early stages, to assure support within the group for the U.S. candidate, and 

46 

to impress upon others the benefits to all concerned of once again having a U.S. 

member of the Commission. 

Question No. 41. On April 13, U.S. Permanent Representative to the United 

Nations Susan Rice, in discussing the Security Council’s Presidential Statement on 

North Korea, stated ‘‘First of all, the United States views Presidential statements, 

broadly speaking, as binding.’’ Do you believe that Presidential statements of the 

U.N. Security Council generally create legally binding obligations on U.N. Member 

States under the U.N. Charter? 

Answer. As a nominee, I have not participated in discussions around this particular matter. As a general matter, however, I would note that under article 25 of 

the United Nations Charter, U.N. Member States are legally required ‘‘to accept and 

carry out the decisions of the Security Council in accordance with the [U.N. Charter].’’ There is nothing in the Charter that specifies the form in which the Council’s 

decisions must be recorded. 

Question 42. In response to Question No. 1 of my prehearing questions for the 

record, you declined to indicate whether you would recommend any changes in the 

historical U.S. position that the International Covenant on Civil and Political rights 

does not apply to U.S. actions outside the territory of the United States. While you 

indicated that it would be premature to suggest what interpretation you would recommend until you have had the opportunity to review fully the U.S. Government’s 

rationale for its position, you are likely generally familiar with the issue from your 

prior service as Assistant Secretary of State for Democracy, Human Rights, and 

Labor. 

In response to Question No. 2 of my prehearing questions for the record about 

when it might be appropriate for the executive branch to change its interpretation 

of a treaty, you indicated that, ‘‘In all cases, I would apply a presumption that an 

existing interpretation of the executive branch should stand, unless a considered examination of the text, structure, legislative or negotiating history, purpose and practice under the treaty or statute firmly convinced me that a change to the prior interpretation was warranted.’’ 

• In light of this standard and your general familiarity with the issue, are you 

aware of any present circumstances that you believe would warrant a reexamination of the historical U.S. position that the International Covenant on Civil 

and Political rights does not apply to U.S. actions outside the territory of the 

United States? If so, please indicate what circumstances you believe would warrant such a reexamination. 

Answer. It is true that I am generally familiar with the issue discussed in this 

question, including the views expressed by former Legal Advisers Conrad Harper 

and John Bellinger, both from my academic work and from my prior service as 

Assistant Secretary of State for Democracy, Human Rights, and Labor. That said, 

I have not yet had the occasion to conduct the kind of considered examination of 

the text, structure, negotiating history, purpose and practice under the treaty that 

I believe a legal adviser should give to an issue before reaching a conclusion on a 

question of this importance, nor have I had the opportunity to review fully the U.S. 

Government’s rationale for its existing position. For those reasons, I believe that it 

would be premature to suggest what interpretation I would recommend. If confirmed, I would seek to review thoroughly all of the past legal memoranda by the 

Legal Adviser’s Office and other government law offices on this issue, to examine 

the various fact patterns to which this interpretation might apply, and to consult 

with policymakers, other government attorneys, and members of this committee and 

other interested Members of Congress on this question. 

Question No. 43. If confirmed, would you intend to conduct any such reexamination of the U.S. interpretation of the ICCPR? 

Answer. For a number of reasons, I believe it is advisable for the Legal Adviser’s 

Office to avoid giving its legal advice in the abstract, but rather, to provide that advice when asked a real-life question, based on a concrete set of facts and an anticipated policy choice. If I were confirmed, and asked to apply the existing U.S. interpretation of the ICCPR, I would determine at that time whether such a decision 

posed an occasion to conduct the kind of considered legal examination discussed in 

my prior answer. 

Question No. 44. In Question No. 21 of my prehearing questions for the record, 

I asked what U.S. interests you believe are implicated by efforts of foreign courts 

to assert criminal jurisdiction over sitting or former U.S. officials for acts undertaken in the course of their official duties. In your response to this portion of the 

question, you indicated that ‘‘There can be no doubt that very important U.S. interVerDate Nov 24 2008 12:26 Apr 01, 2011 Jkt 062931 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 S:\HEARING FILES\111TH CONGRESS\NOMINATION HEARINGS THAT WE WILL PRINT\0
47 

ests are implicated by such efforts,’’ but you did not specify what you believe these 

interests to be. Please indicate what U.S. interests you believe are implicated by 

efforts of foreign courts to assert criminal jurisdiction over sitting or former U.S. 

officials for acts undertaken in the course of their official duties. 

Answer. As I suggested in some of my answers to your prehearing questions, prosecutions against U.S. officials in foreign tribunals for acts undertaken in their 

official duties raise a number of issues that are of very serious concern to U.S. 

interests. Of course, the United States has a vital and pressing interest not just in 

enforcing its own laws, but also in protecting U.S. officials and soldiers from baseless or unwarranted charges and prosecutions, and from the chilling effect that possible foreign charges and prosecutions might cast over daily decisionmaking. Such 

actions may implicate doctrines relating to immunity, overly expansive assertions 

of foreign criminal jurisdiction, and efforts by political opponents of particular U.S. 

policies to seek leverage by invoking foreign jurisdictional provisions to initiate 

criminal complaints against U.S. officials. If confirmed, I would become a U.S. Government official working closely with other U.S. officials who must daily make difficult and sensitive decisions. I, therefore, intend to follow such cases very closely, 

in coordination with the Department of Justice and other U.S. agencies, and to work 

with our foreign counterparts to determine how best to deal with these cases. 

Question No. 45. You have raised questions about the legality under international 

law of the 2003 invasion of Iraq, largely on the ground that the U.N. Security Council did not pass a resolution specifically authorizing the use of force in advance. In 

responses to Question No. 34 and No. 35 of my prehearing questions for the record 

on the separate issue of whether states may use force without Security Council authorization to protect populations from atrocities, you appear to suggest that there 

may be some appropriate scope for such action. 

• Against this background, please discuss your views on when states may use 

force without specific prior authorization from the U.N. Security Council. Are 

the considerations different when states seek to use force to address threats 

such as terrorism or weapons of mass destruction than they are when force is 

proposed as a means to address wide-scale atrocities? 

Answer. Under article 2(4) of the Charter of the United Nations, all U.N. Member 

States have agreed to refrain from the threat or use of force against the territorial 

integrity or political independence of any state, or in any other manner inconsistent 

with the purposes of the United Nations. However under article 51 states are permitted to use force without prior Security Council authorization when exercising 

their inherent right of individual or collective self-defense if an armed attack occurs, 

including to use force to protect their own nationals. As I noted in my answer to 

Senator Lugar’s prehearing Question No. 33, I agree with the 2004 report by a highlevel panel convened by then-U.N. Secretary General Kofi Annan that states that 

‘‘a threatened state, according to long-established international law, can take military action as long as the threatened attack is imminent, no other means would deflect it and the action is proportionate.’’ Cases involving the possible use of force as 

a means to address widespread atrocities present a different set of issues insofar 

as the rationale for using force in such cases is not based on the right of selfdefense. There are, in fact, widely differing views regarding whether using force for 

humanitarian purposes is permissible under international law. 

As I state in my answer to a question from Senator DeMint, I believe that the 

U.S. use of force in Kosovo was both lawful and the right thing to have done. The 

Kosovo intervention was expressly premised on humanitarian intervention grounds 

and had broad multilateral support. There was no reasonable alternative to the use 

of force. As Assistant Secretary of State for Democracy, Human Rights and Labor 

during that period, I read extensive reports indicating that forces from the Federal 

Republic of Yugoslavia and Servia were engaged in massive and sustained repression against the Kosovar Albanian population, they had acted in flagrant contravention of resolutions that the U.N. Security Council had adopted under chapter VII, 

and a humanitarian catastrophe was unfolding that threatened not only the people 

of Kosovo but the security and stability of the entire region. The intervention was 

supported by a multilateral NATO decision, and significantly, shortly after NATO 

commenced military operations, a resolution introduced in the Security Council 

would have called NATO’s use of force unlawful, but that resolution was soundly 

defeated by a 12 to 3 vote. 

If confirmed as Legal Adviser, I would similarly want to look carefully at the specific facts and circumstances of any particular proposed use of military force involving such humanitarian considerations before rendering a legal opinion regarding its 

permissibility under international law. 

48 

RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED FOR THE RECORD

TO HAROLD KOH BY SENATOR DEMINT

Transnational Law 

Question. In your article Why Transnational Law Matters (24 Penn.State International Law Review 745-753 (2006), you describe the difference between nationalists and transnationalists, specifically saying that: 

The transnationalists view domestic courts as having a critical role to 

play in domesticating international law into US law, while nationalists 

argue instead that only the political branches can internalize international 

law. The transnationalists believe that US courts can and should use their 

interpretive powers to promote the development of a global legal system, 

while the nationalists tend to claim that the US courts should limit their 

attention to the development of a national system.’ (p 749). 

Which faction do you place yourself in? 

Answer. The purpose of this article was to argue, as a legal educator, that the 

world is growing increasingly interdependent; that transnational law is gaining public visibility; and that law schools therefore need to tackle the difficult job of making 

sure that 21st century law students are trained and knowledgeable about international law and policy. In the passage quoted, I explained that ‘‘the Supreme Court 

has now divided into transnationalist and nationalist factions,’’ with the terms 

‘‘transnationalist’’ and ‘‘nationalist’’ describing different judicial philosophies, and 

with several members of the Court in each camp. As someone who is not a judge 

and who is not being nominated to a judicial position, [ would not presume to place 

myself into either of these two judicial camps. I do believe, as I have stated in my 

writings, that the former position, which has strong historical roots in the Framers’ 

vision of the Constitution, is more persuasive. As J noted in my hearing and in response to Senator Lugar’s Pre-Hearing Question 10, if confirmed as Legal Adviser, 

[would see the primary value of transnational legal process as a means to persuade 

other nations to obey international law. 

Question. You have written that transnational legal processes can and should be 

used to develop and eventually ‘‘bring international law home’’ to have binding force 

within the U.S. legal system Do you think it is appropriate as Legal Advisor to support such efforts to use litigation to incorporate international legal norms within 

U.S. law? 

Answer. The question of whether the Legal Adviser should support the incorporation of international legal norms in a particular case will depend on the legal issues 

and facts of the case as well as a range of other factors, many of which I discussed 

in the specific context of the Alien Tort Claims Act in my answer to Senator Lugar’s 

Pre-Hearing Question #22. The factors include an assessment of whether adjudication of the claims at issue at that time would protect or impede the conduct of U.S. 

foreign policy interests, and whether the filing would be necessary to ensure consistency with the U.S.’s views on the content of international law and guarantee respect 

for the separation of powers, including the authority of Congress and the courts. 

Question. I’m concerned by the use of so-called ‘‘human rights’’ treaties to bypass 

the ordinary processes of representative government on matters of social and economic policy. You’ve been an ardent champion of this use of treaties. 

As a government that was founded on the consent of the governed, how do you 

see the voice of the American people in the process of ‘‘domesticating’’ international 

law? 

Do you see any limit in law on the use of treaties to adopt domestic policies? 

Answer. As I have explained in my writings, the American people, through our 

Constitution and elected representatives, can determine whether and when international law applies in the United States in a number of ways. To provide only a 

few examples, a Congress elected by the people can ratify a treaty or incorporate 

international law into a statute; a President elected by the people can incorporate 

or exclude international law from domestic law in an executive order; and a judge 

who has been appointed by elected officials and confirmed by elected officials can 

interpret a treaty or international law when required to do so by statute. Also, if 

Congress objects to the way in which the courts have applied international law, 

Congress is always free to act. My view is that the domestic impact of treaties can 

be limited in a variety of circumstances, including when such treaties are non-selfexecuting, or when giving domestic effect to the treaty would violate the constitutional separation of powers, the Bill of Rights (particularly the Tenth Amendment), 

or another provision of the U.S. Constitution. 

49 

Question. This committee may consider three important treaties in the near future: The UN Convention on the Law of the Sea, the Convention for the Elimination 

of Discrimination Against Women, and the Convention on the Rights of the Child. 

Do you believe it is legal and appropriate for the U.S. government to attach statements of ‘‘non-self-execution’’ to these treaties such as those that were attached to 

the International Convention on Civil and Political Rights? 

What do you believe are the legal limits on the Senate’s ability to condition its 

consent to a treaty on a declaration that the treaty is non self-executing? 

Answer. Each provision of a treaty must be considered on a case-by-case basis 

when it comes to the issue of domestic legal effect. For example, in the case of the 

Law of the Sea Convention, the Committee’s proposed resolution of advice and consent (which has been approved twice by this Committee) provides that the Convention is not self-executing, except for certain provisions regarding privileges and immunities. I would consider it legal and appropriate for the United States to accede 

to the Convention on that basis. At such time as this Committee and the Senate 

might choose to consider other treaties, such as the Convention for the Elimination 

of Discrimination Against Women or the Convention on the Rights of the Child, I 

would, if confirmed, expect to consult with the Senate regarding the domestic legal 

effect of those treaties’ provisions. As I noted in my oral testimony and in my answers to Senator Lugar’s prehearing Questions for the Record 6 and 27, in my 

writings, I have long argued that Article II of the Constitution mandates that the 

President and the Senate act as partners in the treaty process. If confirmed, I would 

respect the Senate’s role in determining the domestic effect of treaties by consulting 

with the Senate on this and other aspects of proposed treaties. 

Question. In a Supreme Court brief on the Medellin case, you argued a treaty 

should be regarded as self-executing solely because the State Department legal adviser testified that it was self-executing. However, the Supreme Court instead ruled 

that a treaty is not self-executing unless ‘‘the treaty itself conveys an intention that 

it be ’self-executing’ and is ratified on those terms.’’ 

If you are confirmed as legal adviser, would you take the position that a treaty 

is self-executing when the actual text of the treaty doesn’t make that clear? 

Answer. Under our Constitution, the Supreme Court has the final duty to interpret a particular treaty and to say what it requires as a matter of domestic law, 

and I would, of course, uphold the Supreme Court’s decision in the Medellin case 

and apply its holding to other treaties. As noted in the majority opinion, the Court’s 

approach does not ‘‘require that a treaty provide for self-execution in so many talismanic words .... Our cases simply require courts to decide whether a treaty’s terms 

reflect a determination by the President who negotiated it and the Senate that confirmed it that the treaty has domestic effect.’’ Medellin v. Texas, 128 S. Ct. 1346, 

1366 (2008). 

Convention for the Elimination of Discrimination Against Women (CEDAW) 

Question. In 2002, you testified before this committee that it’s ‘‘flatly untrue’’ that 

‘‘CEDAW supports abortion rights’’ and you stated that ‘‘several countries in which 

abortion is illegal—among them Ireland, Rwanda, and Burkina Faso have ratified 

CEDAW.’’ 

Were you aware that the CEDAW committee issued several reports opposing restrictions on abortion, before the date of your testimony? 

Further, were you aware that one of those reports expressed concerns about the 

restrictive abortion laws of Ireland and—one of the countries whose ratification of 

CEDAW you cited as support for your claim that CEDAW doesn’t support abortion 

rights? 

In your testimony, you also stated that it was false that CEDAW would require 

decriminalization of prostitution. 

Were you aware that the CEDAW committee report on prostitution included its 

recommendation that China decriminalize prostitution? 

In light of these reports do you still stand by the testimony that you offered to 

the committee in 2002? 

Answer. Yes. When I testified as a private citizen regarding my understanding 

of the CEDAW treaty in 2002, I provided my views based on my best reading of 

the treaty in keeping with longstanding canons of treaty interpretation under international law. Article 17 of the Convention states that the Committee’s purpose is 

to consider ‘‘the progress made in the implementation of the . . . Convention’’ and 

Article 21 provides that the Committee ‘‘may make suggestions and general recommendations . . . ‘‘Neither of these provisions, nor any other provision of the Convention, vests the CEDAW Committee with legally binding authority over a State 

Party. 

50 

Over the years, I have read many of the CEDAW Committee reports, but I have 

never considered the views of the CEDAW Committee—as opposed to the text of the 

treaty—which is the only legal instrument that the United States might ratify-to 

be legaJly binding on the States parties, or upon other States who might eventuaJly 

ratify the treaty. The Committee was and is free to offer its interpretation of particular issues as applied to particular countries, just as the U.S. Government would 

be free to disagree with the CEDAW Committee were the United States to become 

party to the treaty and to reach different conclusions on its meaning and scope. Accordingly, I would not alter any of my conclusions in the 2002 testimony simply because they might differ from the recommendations or views of the CEDAW Committee. 

U.S. Use of Force 

Question. One of your predecessors, William Taft, argued that the 2003 invasion 

of Iraq was legal under international law and offered a number of legal opinions 

to that effect during his tenure. Do you agree with his interpretation of international law governing the use of force in Iraq? 

Answer. Mr. Taft was an outstanding State Department Legal Adviser, whom I 

hold in the highest regard. Mr. Taft’s view, with which I am in agreement, was that 

the question whether the Iraq invasion conformed with international law turned on 

the proper interpretation of the relevant resolutions that had been adopted by the 

UN Security Council in the dozen years before the invasion, leading ultimately to 

the adoption of UN Security Council resolution 1441 in November 2002. However, 

as I indicated in my response to Senator Isakson’s question in the Committee’s hearing on April 28, in looking closely at those resolutions, my conclusion was that their 

wording did not provide the necessary support under international law. Thus, while 

Mr. Taft and I approached our analysis with a similar methodology, we ultimately 

came to different legal conclusions. This was an issue about which reasonable lawyers could differ, and which in fact generated a significant amount of disagreement, 

within both the United States and foreign legal communities. I believe that one consequence of this lack of consensus as to whether the resolutions provided the necessary support was that it hindered U.S. efforts to attract as broad political support 

for our military actions in Iraq as we would have liked. We have since needed the 

help of the United Nations and the international community to rebuild Iraq after 

the war, and in doing so, we have had to overcome the absence of the broadest possible level of initial support for the 2003 military action. 

Question. In your testimony, you claim that the war in Iraq violated international 

law but not domestic law. However, you have also made the statement that ‘‘international law is federal law.’’ If the war in Iraq violated international law, then, 

didn’t it also violate domestic law? 

Answer.No. As I indicated in my testimony, the 2003 war in Iraq was authorized 

by a joint resolution of Congress. I have never argued that any violation of international law automatically constitutes a violation of U.S. federal law. Rather, the 

statement referenced came from an article in which I argued that the proper reading of existing U.S. judicial doctrine is that federal courts retain legitimate authority selectively to incorporate bona fide rules of customary international law into federal common law on a case-by-case basis. 

Question. According to newspaper reports, the U.S. government has been engaged 

in the use of covert military attacks in at least seven different countries, as part 

of the ‘‘global war on terrorism.’’ Including missile attacks in Yemen and Pakistan. 

Do you believe these attacks are lawful under U.S. and international law? 

Answer. I am not privy to all of the facts regarding the situations mentioned in 

the question, and therefore I am not in a position to express a firm legal opinion 

on these particular actions. More generally, however, I note that in the Authorization for Use of Military Force (AUMF) of September 18,2001 (public Law 107-40), 

Congress authorized the President to ‘‘use all necessary and appropriate force’’ 

against al Qaeda, the Taliban, and associated forces. The language of the AUMF 

was not geographically limited. As stated in the October 2001 letter from the United 

States notifying the Security Council pursuant to Article 51 of the UN Charter: ‘‘We 

may find that our self-defense requires further actions with respect to other organizations and other States.’’ In any case, as I have noted in my answer to Senator 

Lugar’s prehearing Question 32, whenever the United States uses force in self-defense, it must do so in a manner that is consistent with the principles of necessity 

and proportionality. 

51 

Question. Do you believe the United States acted lawfully when it attacked Serbia 

during the 1999 Kosovo conflict despite the lack of any Congressional authorization 

or authorization from the United Nations? 

Answer. I fully supported the 1999 NA TO military campaign. I am of course 

aware that some have criticized the decision to use force in that case, but I continue 

to believe today that it was both lawful and the right thing to have done. As Kofi 

Annan said in 1999: ‘‘To those for whom the greatest threat to the future of international order is the use of force in the absence of a Security Council mandate, one 

might ask . . . in the context of Rwanda: If, in those dark days and hours leading 

up to the genocide, a coalition of States had been prepared to act in defense of the 

Tutsi population, but did not receive prompt Security Council authorization, should 

such a coalition have stood aside and allowed the horror to unfold. The Kosovo 

intervention was expressly premised on humanitarian intervention grounds and had 

broad multilateral support. In the specific case of Kosovo, there was no reasonable 

alternative to the use of force. As Assistant Secretary of State for Democracy, 

Human Rights and Labor during that period, I read extensive reports indicating 

that forces from the Federal Republic of Yugoslavia and Serbia were engaged in 

massive and sustained repression against the Kosovar Albanian population, they 

had acted in flagrant contravention of resolutions that the UN Security Council had 

adopted under Chapter VII, and a humanitarian catastrophe was unfolding that 

threatened not only the people of Kosovo but the security and stability of the entire 

region. The intervention was supported by a multilateral NATO decision. In addition, shortly after NATO commenced military operations, a resolution was introduced in the Security Council that would have called NATO’s use of force unlawful, 

but that resolution was soundly defeated by a 12 to 3 vote. 

Legal Protections 

Question. Do you support Senate Ratification of the International Criminal Court? 

Answer. In my academic writings, I have argued that the United States should 

pursue a strategy of ‘‘constructive engagement’’ with the International Criminal 

Court—that is, work with the Court to make its functioning more fair. As I explained in my answers to Senator Lugar’s Pre-Hearing Questions, a recent bipartisan task force of the American Society of International Law has similarly recommended that the United States announce a policy of ‘‘positive engagement’’ with 

the International Criminal Court. If confirmed, I would wish to engage in extensive 

discussion with officials across the U.S. Government, including military commanders and experts and members of this Committee, before I would deem it advisable to recommend that the Secretary of State and the President that the United 

States take any specific step with regard to the international Criminal Court. 

Among other things, the U. S. Government has long expressed concern about the 

authority of the ICC Prosecutor under the Rome Statute to initiate investigations 

of U.S. soldiers and government officials stationed around the world. Particularly 

because the United States has the largest foreign military presence in the world, 

this is an important issue on which we would need further discussion and clarification within the government before taking any particular action regarding the International Criminal Court. 

Question. Article 17 of the International Criminal Court states that the Court will 

not pursue an investigation or prosecution when 1) a nation is investigating or prosecuting a case or 2) an investigation has been completed. 

Given President Obama’s statements not to pursue legal action against CIA 

agents who may have participated in torture, do you believe this leaves them open 

for potential prosecution by the International Criminal Court? 

Answer. No. The United States, in both the Clinton and the Bush Administration, 

has made clear its view that the International Criminal Court should not have jurisdiction over U.S. personnel under a treaty to which the United States is not a party. 

Question. To the extent that U.S. forces detain members of al Qaeda, in Guantanamo or Afghanistan, do you believe these people are protected by international 

human rights law or by the laws of armed conflict? 

Answer. The laws of armed conflict and international human rights law have at 

their roots certain overlapping principles. The specific application of each of these 

bodies of law to a particular set of facts raises a range of complex issues, many of 

which are the subject of ongoing litigation or the topic of one of the ongoing Executive Branch task forces, and thus would not be prudent for me to address them in 

this setting. 

As a general matter, there will be circumstances in which the two bodies of law 

are mutually exclusive, as in peacetime (when the law of war is inapplicable) and 

52 

circumstances in which they may not be (as in a non-international armed conflict 

occurring in a state’s own territory). The question is particularly complicated as to 

many of these detainees, whose specific situation may not be squarely addressed by 

existing bodies of law. It is, however, clear from the Supreme Court’s decision in 

Hamdan v. Rumsfeld, that detention of alleged Al Qaeda forces at Guantanamo is 

governed by Common Article 3 of the 1949 Geneva Conventions, which mandates 

that such detainees be afforded certain specified baseline humane treatment protections. More generally, however, the U.S. government has noted in briefs arguing 

that its detention authority as to detainees at Guantanamo is premised on the Authorization for the Use of Military Force ‘‘as informed by the laws of war,’’ but has 

also noted that the laws of war are ‘‘less well-codified with respect to our current, 

novel type of armed conflict against armed groups such as al Qaeda and the 

Taliban.’’ If confirmed, I would look forward to consulting with members of this 

Committee and working on these Issues. 

Question. Recently, ‘‘universal jurisdiction’’ has been invoked in Spain to potentially prosecute six officials from the Bush administration for giving legal advice 

that allegedly sanctioned torture. 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? 

Answer. Prosecutions against U.S. officials in foreign tribunals for acts undertaken in their official duties raise a number of issues that are of very serious concern to U.S. interests. As a nominee, I have not been involved in any interagency 

discussions that may have occurred regarding the Spanish cases. I do have deep 

faith, however, in the United States’ vigorous democratic tradition, independent judiciary, and well established commitment to the rule of law. I therefore believe that 

the United States, as the nation with the predominant interest in this matter, is 

in the best position to decide whether to take any action against former U.S. officials for allegedly improper or illegal conduct that occurred in course of their official 

duties. If confirmed, I would work with my colleagues at the Department of Justice 

and other agencies to determine how best to deal with such ongoing foreign cases. 

Alien Tort Statute Litigation 

Question. You have clearly expressed the view that U.S. companies may be sued 

in U.S. courts for violations of international human rights laws for conducting business with governments that are later deemed to have committed ham against their 

own citizens under the Alien Tort Statute (ATS). 

Do you believe it is appropriate to sue companies retroactively for conduct that 

U.S. laws did not prohibit at the time of their activities? Is it not the role of Congress and the President to determine when sanctions on businesses and relations 

with foreign governments should be placed? 

Aren’t lawsuits like the South African apartheid case, currently pending in the 

Southern District of New York, fundamentally unfair because they are brought after 

activities occur and when there is no actual controlling legal guidance on when a 

company must refrain from conducting business or selling a product to a particular 

government? 

In light of your public views, would you consider recusing yourself from cases regarding the ATS? 

Answer. A defendant in an Alien Tort Claims suit can only be held liable if, at 

the time of the alleged misconduct, the tort was committed in violation of a well 

established international law norm. In addition, the Alien Tort Statute itself is U.S., 

not international law; and while international law provides a frame of reference for 

limiting the category of tort claims over which the courts have Alien Tort Statute 

jurisdiction, the decision to allow claims of this nature to be raised in federal courts 

was made by U.S. statute, not imposed by any external legal system. The specific 

question about the South African apartheid case relates to a matter of pending litigation in which the United States has participated on which I do not believe it 

would be prudent for me to comment. 

If confirmed as Legal Adviser, I would uphold the highest ethical standards, and 

avoid not only actual impropriety, but also endeavor to avoid even the appearance 

of impropriety. I have indicated my general plans regarding recusal in my Ethics 

Undertaking Letter of February 18,2009 to James H. Thessin, Deputy Legal Adviser 

and Designated Agency Ethics Official of the U.S. Department of State, and in my 

53 

answers to Senator Lugar’s prehearing Counsel Questions 2-4. As an academic who 

has written and spoken widely, I have expressed my public views on a broad array 

of legal issues, and nominees could not serve effectively were they to recuse themselves on every matter raising an issue on which they had previously expressed an 

opinion. If confirmed, I would make specific recusal decisions when presented with 

a concrete set of facts, after full consultation with State Department ethics officials, 

and with the goal of upholding the highest ethical standards. 

The Supreme Court and the Constitution 

Question. When you write that the Supreme Court ‘‘must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international’’ 

(Koh, International Law as Part of Our Law, 98 Am. J. Int’1. L. 43, 53-54 (2004)), 

isn’t it true that the only way for the Supreme Court to do that ‘‘coordinating’’ is 

by adjusting its interpretations of the Constitution to more closely comport with 

rules of foreign and international law? 

Do you agree that the Supreme Court cannot alter the rules of foreign and international law? 

This means that the only way the Supreme Court can ‘‘coordinate’’ is by changing 

its interpretations of the Constitution. 

Answer. The Supreme Court can affect rules of foreign and international law 

through its rulings in a number of ways. The manner in which the U.S. Supreme 

Court construes a treaty to which the United States is a party can influence the 

way in which other countries or foreign or international courts choose to construe 

the same treaty. Likewise, the Supreme Court’s interpretation of customary international law can affect how foreign courts choose to construe the same rules. And 

in the same way as a federal court sitting in diversity jurisdiction may construe the 

law of the state in which it sits in a way that proves instructive to the highest court 

of that state, the U.S. Supreme Court can construe a principle of international law 

in a way that influences the way a foreign court chooses to construe that same principle. 

Likewise, the U.S. Supreme Court need not change its interpretation of the U.S. 

Constitution in order to take international law into account. l1he Court can look to 

international law when resolving open questions of constitutional law, as it did 

when it held that the Warrant Clause of the Fourth Amendment does not apply to 

a search of nonresident aliens’ property abroad, citing the international law rule 

that a U.S. magistrate cannot validate a search within the territory of a foreign sovereign. Or, as I discussed with Senator Corker at my confirmation hearing, the Supreme Court can interpret a domestic act that incorporates international law, for 

example when the President issues a proclamation acknowledging a customary 

international law rule or Congress enacts a statute that references international 

law. 

General Philosophy 

Question. In our meeting and your other answers before this committee, you have 

often commented that you believe as an academic you believe it is your role to inject 

ideas into the ‘‘marketplace’’ of idea, but you draw a distinction that when in government positions your job is to follow the law. o However, as a legal advisor your 

job will be to interpret laws on behalf of the State Department. Are we to believe 

that you will discard all of your personal thoughts and opinions from your interpretations of the law when you advise the State Department? 

Answer. No, I certainly will not discard all of my personal thoughts and opinions 

if confirmed as Legal Adviser. But having spent my career as a scholar and a government lawyer, I fully understand the differences between those two roles. As I explained in my answer to Senator Lugar’s prehearing Question for the Record 16 and 

in my colloquy at the hearing with Senator Feingold, if confirmed as a government 

official, I would uphold and defend the laws of the United States, even if I had personal objections to those laws. And as I noted to Senator Shaheen at my confirmation hearing, ‘‘As an academic, you speak in your own voice. When you are in the 

government, you are one of many voices working as part of a team.’’ 

RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED FOR THE RECORD

TO HAROLD KOH BY SENATOR WICKER

Question. In your testimony during your April 28,2009, nomination hearing, you 

stated that, in your professional opinion, the Bush Administration’s 2003 decision 

to invade Iraq was, in the context of international law, illegal. In your professional 

legal opinion, outside of cases in which an imminent threat is present, is a legally 

binding United Nations Security Council Resolution required before the U.S. can 

54 

make the decision to go to war? In your legal opinion, do the other permanent members of the United Nations Security Council (Russia, China, the United Kingdom, 

and France) therefore exercise a veto over the U.S. decision to go to war? Since the 

1999 NATO bombing of Yugoslavia did not have the benefit of a United Nations Security Council Resolution authorizing military operations, was it therefore illegal? 

Answer. The permanent members do not have any veto over a United States decision to use military force for any permissible purposes. Under Article 51 of the UN 

Charter, states are permitted to use force without prior Security Council authorization when exercising their inherent right of individual or collective self defense if 

an armed attack occurs, including to use force to protect their own nationals without 

Security Council authorization. As I noted in my answer to Senator Lugar’s prehearing Question 33, I agree with the 2004 report by a high level panel convened 

by then U.N. Secretary General Kofi Annan that states that ‘‘a threatened State, 

according to long-established international law, can take military action as long as 

the threatened attack is imminent, no other means would deflect it and the action 

is proportional.’’ Cases involving the possible use of force as a means to address 

widespread atrocities present a different set of issues insofar as the rationale for 

using force in such cases is not based on the right of self-defense. 

There are in fact widely differing views whether using force for humanitarian purposes is permissible under international law. I believe that the U.S. use of force in 

Kosovo was both lawful and the right thing to have done. The Kosovo intervention 

was expressly premised on humanitarian intervention grounds and had broad multilateral support. There was no reasonable alternative to the use of force. As Assistant Secretary of State for Democracy, Human Rights and Labor during that period, 

I read extensive reports indicating that forces from the Federal Republic of Yugoslavia and Serbia were engaged in massive and sustained repression against the 

Kosovar Albanian population, they had acted in flagrant contravention of resolutions that the UN Security Council had adopted under Chapter VII, and a humanitarian catastrophe was unfolding that threatened not only the people of Kosovo but 

the security and stability of the entire region. The intervention was supported by 

a multilateral NATO decision, and significantly, shortly after NATO commenced 

military operations, a resolution introduced in the Security Council would have 

called NATO’s use of force unlawful, but that resolution was soundly defeated by 

a 12 to 3 vote. 

If confirmed as Legal Adviser, I would similarly want to look carefully at the specific facts and circumstances of any particular proposed use of military force involving such humanitarian considerations before rendering a legal opinion regarding 

their permissibility under international law. 

Question. In your testimony during your April 28, 2009, nomination hearing, you 

stated that, in your professional opinion, the Bush Administration’s 2003 decision 

to invade Iraq was, in the context of international law, illegal. You also stated that 

you were not able to determine the legality of Israel’s 1981 bombing of Iraq’s Osirak 

nuclear reactor because you were not in the Israeli Government at the time of the 

bombing. You explained you were not privy to any information that the Israeli Government may have held that the Osirak nuclear reactor presented an imminent 

threat to Israel. As a result, you stated you believed the Israeli Government’s bombing of the Osirak reactor may have been legally protected under the right to selfdefense granted to members of the United Nations under the United Nations Charter. In light of the fact that you were not been a member of the United States Government in 2003 or the following years, what is substantively different between the 

two incidents that allows you to pronounce definitively on the United States’ 2003 

invasion of Iraq without being able to on Israel’s 1981 bombing of Osirak? 

Answer. The Bush administration’s justification for the use of force in Iraq in 

2003 relied on the interpretation of publicly available facts and legal instruments 

that were not similarly available in the 1981 Osirak case. Specifically, the Bush administration set out its justification for the Iraq invasion in a March 20, 2003, letter 

from the U.S. Permanent Representative to the United Nations to the President of 

the Security Council, and this view was elaborated in a law review article co-authored by former State Department Legal Adviser William Taft in 2003 (97 A.J.I.L. 

557 (2003). That legal rationale turned on a particular interpretation of publicly 

available documents: the relevant resolutions that had been adopted by the Security 

Council in the dozen years before the invasion, leading ultimately to the adoption 

of UN Security Council resolution 1441 in November 2002. As an international lawyer, I undertook my own analysis of these resolutions, but came to a different legal 

conclusion about how they should be interpreted. 

Mr. Taft was an outstanding State Department Legal Adviser, whom I hold in 

highest regard, and this was an issue about which reasonable international lawyers 

55 

could differ, and which in fact generated a significant amount of disagreement, within both the United States and foreign legal communities. As an international lawyer, I undertook my own analysis of these resolutions, but came to a different legal 

conclusion about how they should be interpreted. Mr. Taft and I both used the same 

methodology: we agreed that the question whether the Iraq invasion conformed with 

international law turned on the proper interpretation of the relevant resolutions 

that had been adopted by the UN Security Council in the dozen years before the 

invasion. As I indicated in my response to Senator Isakson’s question in the Committee’s hearing on April 28, in looking closely at those resolutions, my conclusion 

was that their wording did not provide the necessary support under international 

law. 

In the Osirak case, Israel’s justification was not based on UN Security Council 

resolutions, but on the inherent right of self-defense. As I have noted in my answer 

to Senator Lugar’s prehearing Question 32, determining whether the requirements 

of such a justification are satisfied in any particular case can present exceedingly 

difficult questions that would need to be evaluated in the context of the particular 

circumstances existing at the time and the precise nature of the threat being faced. 

Question. In your professional legal opinion, are all treaties, signed by the Executive Branch and ratified by the Senate, that implicate domestic law self-executing? 

Are such treaties enforceable by a court-of-Iaw without Congress and the Executive 

Branch first enacting implementing statutes and regulations? If such treaties are 

self executing, please list which treaties the Government or the United States has 

heretofore not considered self-executing that it ought to have considered self executing. Following Senate ratification of treaties that implicate domestic law, who 

has standing to sue using those treaties as a controlling legal authority? If you are 

confirmed as Department of State Legal Advisor, will you advise the President, the 

Secretary or State, the Attorney General, and the Solicitor General of the United 

States to defend the self-executing nature of treaties that implicate domestic law in 

a court-of-Iaw? 

Answer. I do not consider that all treaties or treaty Provisions arc self-executing. 

The Supreme Court has made this clear, beginning in Foster v. Neilson, 27 U.S. 253 

(1829), and recently in Medellin v. Texas, 128 S.C. 1346 (2008). A self-executing 

treaty may not be directly enforceable in a U.S. court in all respects. For example, 

a self-executing treaty does not necessarily create private rights of action in U.S. 

courts, and the same treaty may have both self-executing and non self-executing 

provisions. I respect the Senate’s role in determining the domestic effect of treaties 

and, if confirmed, I would expect to consult with the Senate regarding the domestic 

legal effect of new treaties being considered by the Senate. With respect to any particular treaty, I can assure you that I would be committed to providing the best possible legal advice to the Secretary of State and other State Department officials, consistent with the Constitution and laws of the United States. 

Question. In your testimony before the U.S. Senate Committee on Foreign Relations on June 13,2002, in support of Senate advice and consent of the Convention 

on the Elimination of all Forms of Discrimination Against Women (CEDAW), you 

testified that it is ’flatly untrue’ that ’CEDAW supports abortion rights’ and that 

’on its face, the CEDAW treaty itself is neutral on abortion’. Article 17 of the 

CEDAW treaty establishes a Committee under United Nations auspices charged 

with implementing CEDAW. That Committee has on several occasions advised 

CEDAW states-parties that it is inconsistent with their treaty obligations to prohibit 

or place limitations on abortion access. Please address this topic in light of your 

2002 testimony. 

Answer. Article 17 of the Convention states that the Committee’s purpose is to 

consider ‘‘the progress made in the implementation of the . . . Convention’’ and Article 21 provides that the Committee ‘‘may make suggestions and general recommendations.’’ Neither of these provisions, nor any other provision of the Convention, vests the CEDAW Committee with legally binding authority over a State 

Party. I have never considered the views of the CEDAW Committee—as opposed to 

the text of the treaty, which is the only legal instrument that the United States 

might ratify—to be legally binding on the States parties, or upon other States who 

might eventually ratify the treaty. The Committee was and is free to offer its interpretation of particular issues as applied to particular countries, just as the U.S. 

Government would be free to disagree with the CEDAW Committee were the United 

States to become party to the treaty and to reach different conclusions on its meaning and scope. 

Question. Despite the Senate’s declining to ratify the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) heretofore, is the 

56 

United States nevertheless legally-bound by CEDAW as a result of its widespread 

international acceptance? Is CEDAW self-executing? If the United States is ever legally-bound by CEDAW, would it correspondingly be legally-bound by the decisions 

of the United Nations CEDAW Committee? 

Answer. No, the United States is not legally bound by CEDAW. As Assistant Secretary of State for Democracy, Human Rights and Labor, and as an academic, I argued that the United States should ratify the treaty precisely because it was not 

yet legally bound to its provisions, and my view is that remains true today as well. 

With respect to whether CEDAW is self-executing for purposes of United States law, 

I note that the 1980 letter of submittal from then-Secretary of State Muskie, which 

accompanied President Carter’s letter transmitting the Convention to the United 

States Senate, stated that: ‘‘Virtually all of the articles of the Convention are, in 

our judgment, not self executing and would probably not be construed as such as 

they appear to contemplate that legislative or other implementing action be taken 

by the parties (beyond ratification) in order to carry out the Convention’s provisions.’’ 

If the Senate were to consider giving its advice and consent to the treaty, it would 

need to decide whether it agreed with that assessment. As a general matter, as I 

noted in my oral testimony and in my answers to Senator Lugar’s prehearing Questions for the Record 6 and 27, I have long argued in my writings that Article II of 

the Constitution mandates that the Senate and the President act as partners in the 

treaty process. If confirmed, I would respect the Senate’s role in determining the 

domestic effect of this treaty by consulting with the Senate on this and other aspects 

of the proposed treaty. 

Finally, as noted in greater detail in my answer to Senator Wicker’s Question 4, 

were the United States to become a State Party to the Convention, it would not be 

legally bound by decisions of the CEDAW Committee, which do not form part of the 

text of the treaty. 

Question. During your April 28, 2009 nomination hearing, you testified that the 

United States’ 2003 invasion of Iraq was illegal in the context of international law. 

I inquired whether, in your professional legal opinion, Iraq was entitled to a remedy 

at-law as a result of its being the subject of an unjust war. You responded by invoking the Jus in bello/Jus ad bellum distinction. Please clarify how the distinction 

applies. 

Are countries that are attacked in violation of international law, but wherein the 

war is waged justly, entitled to a remedy-at-Iaw? 

Are countries that are legally attacked, but wherein the war against them are unjustly waged, entitled to a remedy-at-law? If so, is it therefore the case that, in your 

professional legal opinion, Iraq is not entitled to a remedy-at-law despite having 

been subject to what is in your view an illegal invasion? 

Answer. My point at the hearing was that any international legal violation in the 

way the United States may have decided to use force in Iraq (which is governed by 

the law Jus ad bellum would not automatically call into question the legality of any 

of the various actions taken by the United States in the course of conducting that 

war (which is governed by the law of Jus in bello). If a foreign government believed 

that the United States had illegally used force against it and chose to pursue such 

a remedy before either a domestic or international court, it would encounter severe—and in my view, preclusive—obstacles related to jurisdiction, standing, justifiability, admissibility and enforcement. 

RESPONSES TO ADDITIONAL QUESTIONS SUBMITTED FOR THE RECORD

TO HAROLD KOH BY SENATOR CASEY

Private Security Contractors 

Question. Because of insufficient numbers of U.S. government diplomatic security 

personnel at the State Department, the Department has turned to the use of private 

security contractors such as Blackwater Worldwide (now XE) and Triple Canopy to 

provide personal protective services in areas such as Iraq and Afghanistan. Today 

the State Department has contracts with private security contractors providing 

about 1,400 armed personnel in Iraq, and about 75 armed contractors in Afghanistan. 

I have expressed my strong concern over the excessive use of PSCs, especially in 

Iraq, in the aftermath of the incident at Mansoor Square in the fall of 2007 when 

Iraqi civilians were gunned down after Blackwater guards opened fire in a crowded 

public square with no apparent provocation ion. It left a stain on the reputation of 

all U.S. military forces operating in Iraq, even though only private security contractors were involved. I have worked with Chairman Kerry in encouraging the State 

57 

Department to reduce the role of PSCs as we draw down our combat troop levels 

in Iraq. 

I have also been concerned about a potential gap in our law that prevents the 

United States from prosecuting criminal offenses committed by U.S. contractors assigned to federal agencies other than the Defense Department overseas. Accordingly, 

the Blackwater contractors involved in the September 2007 incident may be able to 

walk away because they were working for the State Department. 

Question. How would you draw the distinctions between functions that private security contractors can serve and those reserved for U.S. federal employees under the 

‘‘inherently governmental’’ restrictions? 

Answer. My understanding is that the State Department’s private security contractors who protect U.S. Government officials in Iraq and Afghanistan are not authorized to engage in law enforcement duties (such as arresting or detaining suspects) or offensive combat operations. The contractors’ exclusion from these functions are two of the factors that contribute to the Department’s determination that 

their functions are not ‘‘inherently governmental’’ 

The determination of whether certain functions are inherently governmental is 

guided by laws and regulations that leave most specific cases to the judgment of 

the relevant department or agency. If confirmed, I will work with other senior officials to ensure that the State Department continues to act in full compliance with 

all applicable laws and regulations with regard to the use of contractors, including 

the ‘‘inherently governmental’’ restriction. 

Question. What is your understanding as to whether the United States or Iraq 

exercise primary criminal and civil jurisdiction over those contractors not under contract to DOD who operate in Iraq? What implications does this have for continuing 

U.S. operations in Iraq? 

Answer. My understanding is that since the entry into force of the U.S.-Iraqi Security Agreement and the Iraqi Parliament’s suspension of Coalition Provisional Authority (CPA) Order 17, all U.S .-affiliated contractors operating in Iraq are now 

subject to the criminal and civil jurisdiction of Iraqi courts. U.S. law also provides 

a basis for the United States to exercise jurisdiction over crimes that contractors 

commit in Iraq in a number of circumstances. 

With regard to the impact of these legal rules on U.S. operations, my understanding is that the immunity from Iraqi legal process for contractual acts granted 

by CPA Order 17 was unusual, and that the situation today in Iraq is now in line 

with most other countries around the world where our contractors operate. For example, U.S. contractors in Afghanistan have never possessed blanket immunity 

from Afghan legal process. In this period of transition in Iraq, there are numerous 

and significant issues to resolve to ensure that U.S. operations are able to continue 

safely, while respecting Iraqi law. I also understand that several joint U.S.-Iraqi 

committees have been established to address these complex issues, including the 

rules governing contractor operations. If confirmed, I look forward to participating 

in discussions in this area and consulting with you and other interested members 

of the Committee and the Senate regarding these important questions. 

Question. In your opinion, are U.S. laws sufficient to hold private security contractors and their employees liable for any actions in overseas contingency operations 

in Iraq and Afghanistan if those actions are not in support of military operations? 

Would the protection of State Department, USAID, and other U.S. government officials in those countries be considered in support of military operations? 

Answer. As Secretary Clinton has said, the Department of State needs to take a 

hard look at the issue of security contractors abroad and how they are used and 

held accountable, while at the same time recognizing that we need to provide security for our diplomats if they are to perform their vital mission in Iraq and other 

dangerous places. If confirmed, I will ensure that my office has reviewed the full 

range of legal issues that the Department’s use of private security contractors generates and whether additional legislation might be beneficial. As an unconfirmed 

State Department nominee, I would need to defer to the Department of Justice on 

the specific question of whether any given U.S. contractor is acting ‘‘in support of 

the DOD mission overseas within the meaning of the Military Extraterritorial Jurisdiction Act, a question that is at issue in an ongoing criminal proceeding. 

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