The Big Picture on Koh

by publius

The war against Koh is heating up, as David Weigel reports.  It’s going to get ugly, and the attacks thus far have been both misleading and steeped in nationalist paranoia and conspiracy theory. 

Anyway, before things really heat up, I want to try to present a big picture of some of the various diverse strands of Koh’s writings.  Don’t get me wrong – I’m going to further address in detail why I think Ed Whelan’s posts have been misleading and unfair.  But for tonight, let’s stick to the big picture.

Koh is a highly-respected international law scholar.  And he’s written a ton of stuff – roughly 175 law review articles and 8 books.  When you write that much, it’s very easy for people to cut and paste snippets here and there that don’t sound good out of context.  Of course, there’s nothing wrong with using snippets to attack someone – but those snippets must fairly represent the consistent themes of one’s scholarship.

So let’s unpack some of those themes, because they’re quite distinct:

First, Koh supports looking to international law to help inform legal decisions.  If you’re ok with courts using Webster’s Dictionaries, then this shouldn’t be too deeply unsettling.  Courts look at external sources all the time when construing federal statutes and constitutional text – things like dictionaries; state law; policy; precedent; Blackstone’s Commentaries, etc. 

No one is saying that international law dictates what the Eighth Amendment means.  Koh is merely saying that we can look at other stuff to help us make good decisions.  It’s almost laughably banal.

Second, we have “transnationalism,” for which Koh is best known.  Whelan and others demagogue the very word – but at heart, it’s fundamentally a descriptive theory about the interaction between international and domestic law.  (There are normative elements too, and I’ll get to those).

Transnationalism responds to well-known questions in the literature – why do nations follow international law?  How does international law become incorporated into domestic law?  There are many schools of thought on this – e.g, self-interest, coercion by powerful states. 

Koh’s innovation was to argue that “transnational legal process” plays a role too.  Essentially, the idea is that various interactions among various diverse parties (e.g., grassroots efforts, legislation, litigation, persuasion) can create norms that are eventually internalized by various institutional actors.

Norm internalization is a fancy word for “changing people’s minds” or “persuading” them.  For instance, the reason you follow the speed limit even if no cops are around is because you’ve internalized that norm.  Similarly, most countries have voluntarily adopted the Geneva Convention because, at some point, they internalized the norm that killing prisoners is bad.

Koh’s work describes how these developments came about – e.g., how these norms form, and how they get internalized.  The descriptive aspect of his work is his most interesting contribution – and it’s what people like Whelan wholly ignore.  From reading his posts, you’d think transnationalism is one big normative proposal to illegally supplant domestic law.

There are, however, normative aspects to Koh’s transnationalism – but they follow quite humbly from his descriptive theories.  In short, Koh
is simply arguing that we should work to try to change people’s minds. 
By engaging the world – e.g., advocating for human rights; filing
habeas claims; volunteering in other countries, etc. – we can help
change norms.  The hope is that these changed attitudes will eventually
be reflected in law.

For instance, in one article (the Stanford article Whelan cites), Koh explains how transnational legal
process might be applied to help the US come to terms with the ICC. 

In
plain English, he proposes ways to help the US change its mind about
the ICC.  For instance, he suggests that the ICC prosecutor might bring cases that the
United States would be very willing to support (maybe a prosecution of
Saddam’s peeps).  After the United States saw the court act properly
and in a helpful way over a period of time, the “process” could eventually help
Americans internalize the legitimacy of the court.

That’s how it works.  There’s nothing nefarious here.  There’s no
attempt to force anything down anyone’s throat.  Actually, his theory
displays a reaffirming and even Romantic faith in the ability of
grassroots action to bring real change – there’s a real beauty and
aesthetic to the idea after you get beyond the caricatures.  It’s the
spirit of the Obama "roll up your sleeves" campaign applied to international law.

A third aspect of Koh’s writings refers to a fairly complicated
academic debate about a legal concept called “customary international
law” (CIL).  It’s this strand that’s got Whelan in a tizzy. 

I’ll
elaborate on this in a future post.  But needless to say, there’s no
nefarious plot here either.  As we’ll see, a big part of CIL is simply
that federal courts can and do refer to customary international law to help them interpret other laws such as treaties and statutes.  In
short, it helps inform courts' interpretations.

To be sure, there’s a legitimate academic debate about what “CIL” is,
and some liberals offer excessively expansive definitions.  But Whelan
transforms this debate into an international conspiracy to implement a
“revolution.”  But anyway, more on this last point to come.

In short, there are various strands of Koh’s work that need to be kept
distinct.  It’s very easy, for instance, to take snippets from #3 (CIL) and use them to distort
his true views about #1 (that international law should inform us).

More broadly, it’s easy to lose sight of the big picture in the weeds.  In some
ways, posts like mine actually serve conservatives’ purpose.  The
very act of defending Koh’s writing in the detail that is required
makes it seems like there’s actually something to be ashamed of. 
There’s not.

To be clear, this is an ideologically-charged smear campaign that is
relying on pulling quotes out of context and presenting them in
inflammatory ways.  It’s nativist world-hating at its worst – but it’s
a serious threat.  And it needs to be met head-on.  And Obama can’t
cave.  Caving on Koh would create the worst sort of incentives – and
would signal that these types of attacks can successfully wound the
President’s agenda. 

Obama can either smack it down now, or he can keep fighting this battle for the rest of his term.