Harold Koh Is Too Dangerous for America

Harold Koh Is Too Dangerous for America

by Phyllis Schlafly

Does Barack Obama really want to make Americans subject to foreign law and courts? That is the question Senators should ask when they vote on his nomination of Harold Hongju Koh, former dean of the Yale Law School, to be the top lawyer at the State Department.
Koh is encumbered by a long paper trail that proves he is eager to use foreign and international law to interpret American law. He calls himself a transnationalist, which means wanting U.S. courts to "domesticate" foreign and international law, i.e., integrate it into U.S. domestic law binding on U.S. citizens.

Koh wants to put the United States under a global legal system that would diminish our "distinctive rights culture" such as our broad speech and religion rights, due process and trial by jury. Koh complains that our First Amendment gives "protections for speech and religion ... far greater emphasis and judicial protection in America than in Europe or Asia."

Yes, our Constitution does give individuals more rights and freedom than any other country, and we Americans like those rights and freedoms. But Koh thinks we should bow to foreign rules and court decisions, and to United Nations treaties whether or not we have ratified them.

The State Department's chief lawyer is not just any lawyer. He becomes the voice of the United States on international legal issues such as the negotiation and U.S. interpretation of treaties and UN pronouncements.

Importing treaties and foreign law into American law could impose lots of rulings that the American people don't want, such as approval of same-sex marriage, unlimited abortion, legalized prostitution, and abolition of the death penalty. This would be a broadside assault on American sovereignty.

Foreign law is fundamentally different from American law. Whereas our Constitution sets forth limited governmental powers and recognizes broad individual rights against government (such as freedom of religion and speech), European constitutions proclaim entitlements to government services such as education, health care, maternity leave, housing and environmental protection.

We certainly don't want to import law from foreign countries that recognize polygamy, arranged marriages between cousins, so-called honor killings of women who reject such arrangements, cutting off hands as punishment for theft, stoning women to death as punishment for adultery, and prohibiting the private ownership of guns.

As Judge Robert Bork has written, international law is really not law as Americans understand the term; it is just international politics. Not passed by any legislature, international law is often written ex post facto and administered by foreign or UN bureaucrats pretending to be judges.

Unfortunately, Harold Koh's views are not unique among leftwing lawyers or even among Supreme Court justices, and it's long past time for us to rise up and put an end to this un-American nonsense. The confirmation of Koh would give legal support to the Supreme Court justices who have already said they favor using foreign law.

Justice Stephen Breyer, who calls himself a "comparativist," suggested in a dissent in Knight v. Florida that it was "useful" to consider court decisions in India, Jamaica, and Zimbabwe on allowable delays of execution. Zimbabwe may have much experience with executions, but we don't need its guidance about due process.

Justice Ruth Bader Ginsburg has been making speeches advising lawyers that "your perspective on constitutional law should encompass the world. . . . Our island or lone ranger mentality is beginning to change."

While still on the High Court, Sandra Day O'Connor told a Georgetown University audience that international law "is vital if judges are to faithfully discharge their duties. . . . International law is a help in our search for a more peaceful world."

Even Justice Anthony Kennedy invoked foreign "authorities" when he couldn't find any language in the U.S. Constitution to justify overturning the Texas sodomy law in 2003. His decision cited non-American sources including a committee advising the British Parliament, decisions of the European Court of Human Rights, the European Convention on Human Rights, a brief filed by former UN High Commissioner for Human Rights Mary Robinson, and "other nations, too."

Kennedy emphasized the "values we share with a wider civilization." In fact, most other countries do not share American values, and we certainly do not want to share theirs.

During his confirmation hearings, Chief Justice John G. Roberts pointed out a particular danger of using foreign law. He said that reliance on foreign law wrongly "expands the discretion of the judge" and substitutes a judge's "personal preferences" for the U.S. Constitution.

Citing foreign law gives a veneer of respectability to liberals who espouse the "living Constitution" heresy and want to change it without obtaining the approval of the American people through the amendment or legislative processes.

The Senate should reject the nomination of Harold Koh. Then, the Senate should require all judicial nominees to proclaim their adherence to the U.S. Constitution as written, and their rejection of the use of foreign or international law to interpret American law.

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Patriot Act Imprisons Teen

Ashton Lundeby, of Granville, County North Carolina is being held under the USA Patriot Act on a criminal complaint that a bomb threat was made from his Oxford home the night of Feb. 15.

Lundeby has been incarcerated for two months in a juvenile facility in Southbend, Indiana; because he has been labeled a terrorist and arrested under the Patriot Act, due process has been suspended.

According to an article at wral.com:

The family was at a church function that night (March 5), his mother, Annette Lundeby, said.

"Undoubtedly, they were given false information, or they would not have had 12 agents in my house with a widow and two children and three cats," Lundeby said.

Around 10 p.m. on March 5, Lundeby said, armed FBI agents along with three local law enforcement officers stormed her home looking for her son. They handcuffed him and presented her with a search warrant.

"I was terrified," Lundeby's mother said. "There were guns, and I don't allow guns around my children. I don't believe in guns."

Lundeby told the officers that someone had hacked into her son's IP address and was using it to make crank calls connected through the Internet, making it look like the calls had originated from her home when they did not.

Her argument was ignored, she said. Agents seized a computer, a cell phone, gaming console, routers, bank statements and school records, according to federal search warrants.

"There were no bomb-making materials, not even a blasting cap, not even a wire," Lundeby said.

Lundeby said the USA Patriot Act stripped her son of his due process rights.

"We have no rights under the Patriot Act to even defend them, because the Patriot Act basically supersedes the Constitution," she said. "It wasn't intended to drag your barely 16-year-old, 120-pound son out in the middle of the night on a charge that we can't even defend."

Because a federal judge issued a gag order in the case, the U.S. attorney in Indiana cannot comment on the case, nor can the FBI. The North Carolina Highway Patrol did confirm that officers assisted with the FBI operation at the Lundeby home on March 5.

"Never in my worst nightmare did I ever think that it would be my own government that I would have to protect my children from," Lundeby said. "This is the United States, and I feel like I live in a third world country now."

What is the PATRIOT Act?

The voting of the current president, Barack Obama, traces his complete 2005, 2006, and 2007 voting on the PATRIOT Act (Cf. the information is publicly available from the standard source of U.S. legislation: the Thomas.loc.gov site).

2/2/06: Obama voted to extend the USA-PATRIOT's proposal for five weeks to allow Congress time to put together the support to adopt the renewal of USA-PATRIOT. Roll call 11

2/16/06: Obama voted for cloture on "USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006," S2271. The act continued the most objectionable provisions from 2001 and had a new provision allowing the government to collect lists of people and kids suffering from colds and allergies. It could still obtain library records. This cloture vote guaranteed passage. Roll call 22

3/1/06: Obama voted to pass S2271, the USA PATRIOT Act Reauthorizing Amendments Act of 2006, which strengthened the provisions of the original USA-PATRIOT Act. Roll call 25

3/1/06: Obama voted for cloture on the USA-PATRIOT Act (HR 3199), Conference Report. This was the last real chance to stop the Act. It was known that there would not be enough votes to stop the act, so stopping cloture was the most important issue. Obama voted for this. Roll call 28

3/2/06: Obama voted for the conference report on USA-PATRIOT, itself, that gave more power to agencies depriving Americans of their Constitutional Rights and making almost all of the most intrusive provisions permanent. This was the last chance to stop USA-PATRIOT. Roll call 29.

After viewing the video, does the teen imprisoned appear to fit your understanding of a "terrorist?"

Do you agree with the teen's mother who states that the Patriot Act seems to override protections guaranteed in the Constitution?

Write your reaction to this case. Does the Patriot Act, and those who advocate it, seem "American" to you?

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