The Bush administration has warped the Constitution to pump up executive power and undermine human rights, Yale Law School Dean Harold Hongju Koh told Congress on Tuesday.
The next president, he said, must reintroduce respect for the rule of law by closing the Guantanamo Bay prison, banning torture and ordering compliance with international human-rights conventions.
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In his testimony before the Senate Judiciary Committee’s Subcommittee on the Constitution, Koh was joined by a panel of experts in advising the committee on how the next president and Congress can restore the rule of law in the United States.
Koh said the Bush administration squandered world sympathy for the United States following Sept. 11 with a “series of unnecessary, self-inflicted wounds, which have gravely diminished our global standing and damaged our reputation for respecting the rule of law.”
His testimony went on to refute the administration’s “distorted constitutional vision, based on claims of unfettered executive power,” and to suggest executive orders, legislation, agency reorganization and foreign-policy action that the next administration can take to reverse the damage.
Koh, who specializes in international human-rights law and served as assistant secretary of state for democracy, human rights and labor under President Bill Clinton LAW ’73, has been a prominent critic of the Bush administration’s policies in the war on terror.
In his testimony, he said the Bush administration has rejected universal human rights in efforts to create “law-free zones,” such as Guantanamo, and to name enemy combatants who are not subject to regular legal procedures and protections.
In doing so, he said, the administration has relied on a “startling argument” that executive action is inherently lawful and a kind of law itself.
He criticized the constitutional reasoning in the Office of Legal Counsel’s interrogation guidelines, the so-called “Torture Opinion,” penned in part by Koh’s former student, John Yoo LAW ’92.
Koh said instilling a culture of respect for the rule of law has to come from the top down, starting with a clear signal from the president. He also suggested creating a committee on national-security law to consider government actions before they happen.
Koh has testified in Congress about 20 times, most recently in March 2007 about a report on human-rights practices and U.S. foreign policy before the House Committee on Foreign Affairs.
The prestigious Senate subcommittee, chaired by Sen. Russ Feingold, the Democrat from Wisconsin, features something of an all-star cast. But the ailing Democratic Sen. Ted Kennedy of Massachusetts was absent, and so was Arlen Specter LAW ’56, the Republican from Pennsylvania.
Feingold asked Koh what was wrong with the theory of inherent executive power. Koh answered that the difference between a president and a king is that a president must have checks and balances placed on him.
The ranking Republican, former presidential candidate Sam Brownback of Kansas, jumped on Koh’s call to close Guantanamo, asking whether it was safe to detain prisoners in Kansas jails, for example. Koh said the United States likely already has other secure facilities.
But it was the Democrats’ show Tuesday, with a hearing whose very subject — advising the next president on restoring the rule of law — showcased both their disdain for and impatience with the current occupant of the White House.
“The sense we got was that this Congress and this president have reached an impasse,” Koh said in an interview after the hearing. “So for the little time that’s left, they’re focused on who the next president will be.”
As the Democratic senators’ eyes have turned toward the next president, so, too, surely, have those of Koh, who is widely considered a top contender for an appointment in a Democratic administration.
Asked whether he would like to play a larger role in the next administration than providing the advice he dispensed yesterday morning, Koh said he already has a job and has not thought about taking a new one.
“Some people plan on getting jobs in administrations that never end up happening,” he said. “It’s not really worth worrying about until someone asks you.”
Other witnesses before the subcommittee Tuesday included former Republican congressman Mickey Edwards, now a lecturer at Princeton University’s Woodrow Wilson School of Public and International Affairs; Frederick Schwarz, senior counsel at the Brennan Center for Justice at New York University School of Law; and Professor Robert Turner of the University of Virginia School of Law.
A second panel of seven followed, as the proceeding wore on long past noon. Koh left early to grab lunch and return to New Haven.
“They must be hungry,” he said.