Lil Ricky, Again. (Part I)

You might want to sit back, put your feet up, grab some coffee or a nice cup of tea, and settle in for a bit as this is going to take some time.

Why? Because Rick Santorum's got another column at the Philadelphia Inquirer and it's a doozy - perhaps the dooziest of doozies.

The first paragraph sets the tone:

Watching President Obama apologize last week for America's arrogance - before a French audience that owes its freedom to the sacrifices of Americans - helped convince me that he has a deep-seated antipathy toward American values and traditions. His nomination of former Yale Law School Dean Harold Koh to be the State Department's top lawyer constitutes further evidence of his disdain for American values.

It's a now standard right-wing talking point that Obama "apologized for America's arrogance" in France. But what did he actually say? Here's the transcript from The White House:

In recent years we've allowed our Alliance to drift. I know that there have been honest disagreements over policy, but we also know that there's something more that has crept into our relationship. In America, there's a failure to appreciate Europe's leading role in the world. Instead of celebrating your dynamic union and seeking to partner with you to meet common challenges, there have been times where America has shown arrogance and been dismissive, even derisive.

But in Europe, there is an anti-Americanism that is at once casual but can also be insidious. Instead of recognizing the good that America so often does in the world, there have been times where Europeans choose to blame America for much of what's bad.

On both sides of the Atlantic, these attitudes have become all too common. They are not wise. They do not represent the truth. They threaten to widen the divide across the Atlantic and leave us both more isolated. They fail to acknowledge the fundamental truth that America cannot confront the challenges of this century alone, but that Europe cannot confront them without America.

Can someone tell me where the apology is? Immediately after noting the "arrogance" of "recent years" (and do I need to call anyone's attention to Secretary Rumsfeld's utterly dismissive attitude towards the "Old Europe" of France and Germany?) President Obama criticizes European anti-Americanism for "blam[ing] America for much of what's bad" while ignoring the good that America does in the world.

But this is just the hors d'oeuvre the amuse-bouche of the column. The column is yet another right-wing attack on Harold Koh. And Rick jumps right in with an apophasis. Here it is:

Let's set aside Koh's disputed comments about the possible application of Sharia law in American jurisprudence.

On the surface he want's to "set aside" the comments but what he really wants to do is to inject the idea into the structure of the column without actually having to take responsibility for it. All you know is that there are "disputed" comments about Koh and Sharia law.

What's the dispute? It comes from this blog entry at the National Review Online. In it an attorney claims that at a event the two attended Koh made:

at least one favorable reference to "Sharia", among other foreign laws that could, in an appropriate instance...govern a controversy in a federal or state court in the US.

From the National Review Online it made it onto the pages of the New York Post. And from there Fox and right wing pundits from sea to shining sea.

The only problem is that Robin Reeves Zorthian, the organizer of that event says it's all untrue:

The account given by Steve Stein of Dean Koh's comments is totally fictitious and inaccurate. I was in the room with my husband and several fellow alumni, and we are all adamant that Koh never said or suggested that sharia law could be used to govern cases in US courts.

The subject of his talk was Globalization and Yale Law School, so, of course, other forms of law were mentioned. But never did Koh state or suggest that other forms of law should govern or dictate the American legal system.

But Rick wants you to think so anyway. That's why he said it. Talking Points Memo has the rundown on the "dispute."

But let's get to the heart of Lil Ricky's argument:

What is indisputable is that Koh calls himself a "transnationalist." He believes U.S. courts "must look beyond national interest to the mutual interests of all nations in a smoothly functioning international legal regime. ..." He thinks the courts have "a central role to play in domesticating international law into U.S. law" and should "use their interpretive powers to promote the development of a global legal system."

Koh's "transnationalism" stands in contrast to good, old-fashioned notions of national sovereignty, in which our Constitution is the highest law of the land. In the traditional view, controversial matters, whatever they may be, are subject to democratic debate here. They should be resolved by the American people and their representatives, not "internationalized." What Holland or Belgium or Kenya or any other nation or coalition of nations thinks has no bearing on our exercise of executive, legislative, or judicial power.

Koh disagrees. He would decide such matters based on the views of other countries or transnational organizations - or, rather, those entities' elites.

To which Dahlia Lithwick has a response:

The underlying legal charge from the right is that Koh is a "transnationalist" who seeks to subjugate all of America to elite international courts. We've heard these claims from conservative critics before. They amount to just this: The mere acknowledgment that a body of law exists outside the United States is tantamount to claiming that America is enslaved to that law. The recognition that international law even exists somehow transforms the U.S. Supreme Court into a sort of intermediate court of appeals that must answer to the Dreaded Court of Elitist European Preferences.

Ricky continues:

Unsurprisingly, Koh is a strong supporter of the International Criminal Court, which could subject U.S. soldiers and officials to foreign criminal trials for their actions while fighting for our security. He has recommended that American lawyers work to "undermine" official American opposition to the court.

Here's Koh himself defending the ICC:


His reasons?

• The US was one of the initial proponents of the ICC.
  
• It's in the interest of the United States to have an international criminal court - there are places on the planet where the US has no good solution. The ICC might be useful in those places.
  
• The court is up and running already. It's going to develop. The US should be part of that process because if it's outside the process it runs the risk that the process will turn against the US.
  

Yep. Sounds very anti-American to me.

End of Part I