Koh Nomination Provokes Hysteria over Shariah

In March 2007 the National Review-linked blog Phi Beta Cons carried a letter from a New York lawyer named Steven J. Stein addressed to Harold Koh, Dean of Yale Law School:

Dear Dean Koh

I attended the dinner of the Yale Club of Greenwich earlier this week.  In your discussion of “global law” I recall at least one favorable reference to “Sharia”, among other foreign laws that could, in an appropriate instance (according to you)  govern a controversy in a federal or state court in the US.  I, for one, oppose following “law” that is not the product of democratic lawmaking processes such as in this country, the Constitution, treaties to which the US is a party, legislative acts, (whether by a congress or a rulemaking authority in the executive branches of government) and, of course, judicial interpretations thereof . You mentioned, en passant, your extensive travels to Muslim countries so I must assume some familiarity with Sharia “law” including its decidedly undemocratic source, i.e., the truth as revealed to a Seventh Century “prophet” .  Therefore, I must assume your awareness that such ‘truths” include, the following:

Sura 8:12: “I am with you: give firmness to the Believers: I will instill terror into the hearts of the Unbelievers: smite ye above their necks and smite all their finger-tips off them.”

Sura 3:151 “Soon shall We cast terror into the hearts of the Unbelievers, for that they joined companions with Allah, for which He had sent no authority: their abode will be the Fire: And evil is the home of the wrong-doers!”

Sura 9:25 declares: “But when the forbidden months are past, then fight and slay the Pagans wherever ye find them, and seize them, beleaguer them, and lie in wait for them in every stratagem (of war); but if they repent, and establish regular prayers and practise regular charity, then open the way for them: for Allah is Oft-forgiving, Most Merciful.”

Sura 9:29 states: “Fight those who believe not in Allah nor the Last Day, nor hold that forbidden which hath been forbidden by Allah and His Messenger, nor acknowledge the religion of Truth, (even if they are) of the People of the Book, until they pay the Jizya with willing submission, and feel themselves subdued.” (Jizya was a tax which non-Muslims had to pay to their Muslim overlords).

Your own world view, as expressed in Greenwich, based on fairness, reasonableness and tolerance seems very much at odds with the foregoing “laws” followed by over One Billion residents of this planet.

The above does not inspire confidence in Stein’s abilities; Islamic law is a complex phenomenon that has developed in many different ways, and only a fool would suggest it can be encapsulated in a few random sanguinary verses from the Koran.

Now that Koh has been nominated as the State Department’s legal adviser, Stein’s accusation has been dusted off by those looking for evidence of B. Hussein X’s secret plans for Islam to dominate the USA. The NY Post has an article by Meghan Clyne, entitled “Obama’s Most Perilous Legal Pick“, which sees Koh’s supposed enthusiasm for shariah as of a piece with, erm… opposition to the death penalty and support for gay marriage:

…California voters have overruled their courts, which had imposed same-sex marriage on the state. Koh would like to see such matters go up the chain through federal courts — which, in turn, should look to the rest of the world. If Canada, the European Human Rights Commission and the United Nations all say gay marriage should be legal — well, then, it should be legal in California too, regardless of what the state’s voters and elected representatives might say.

He even believes judges should use this “logic” to strike down the death penalty, which is clearly permitted in the US Constitution.

The primacy of international legal “norms” applies even to treaties we reject. For example, Koh believes that the UN Convention on the Rights of the Child — a problematic document that we haven’t ratified — should dictate the age at which individual US states can execute criminals. Got that? On issues ranging from affirmative action to the interrogation of terrorists, what the rest of the world says, goes.

Including, apparently, the world of radical imams. A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that “in an appropriate case, he didn’t see any reason why sharia law would not be applied to govern a case in the United States.”

However, Clyne at least gives us a clarification from Koh:

A spokeswoman for Koh said she couldn’t confirm the incident, responding: “I had heard that some guy . . . had asked a question about sharia law, and that Dean Koh had said something about that while there are obvious differences among the many different legal systems, they also share some common legal concepts.”

For Daniel Pipes, this becomes:

Harold Koh, Promoter of Shari’a?

And as we move further rightwards, another site gives us:

Obama Pick Harold Koh Favors Sharia Law Over Constitution

However, not everyone has fallen prey to the latest hysteria. One conservative blogger with a dislike of Koh complains that:

The Posts big tag of Koh and Sharia law is an unsubstantiated overheard and poorly commented handoff from a Koh staffer. The thing is attacking him on being pro Sharia is easily refuted by looking back at some 2007 House testimony he gave.

Here’s the relevant quote:

The human rights situation in Iran is increasingly disturbing. Although a great percentage of the Iranian people support democratic reform, the country remains in the hands of the conservative clerics, who closely monitor and restrict the opposition and the press, punish human rights defenders, and impose a strict form of Sharia law that denies women and minorities basic rights. This year, Iranian government shut down two independent newspapers and blocked access to many media internet sites.  Yet the U.S. saber-rattling approach has blunted its ability to gain human rights leverage.  In criticizing Iran for its “severe restriction of the right of citizens to change their government peacefully,” the report uses stronger language than is found in the reports for Syria and Saudi Arabia, which have arguably similar levels of restrictions on the right to change the government.

That was taken from  a Committee of Foreign Affairs discussion of the 2007 Country Reports on Human Rights Practices and the Promotion of Human Rights in US Foreign Policy (see here, p. 21). Koh also complains about human rights abuses in other Middle Eastern countries, and he complains that the report downplays violations in friendly countries in the region.

Meanwhile, Daniel Pipes hilariously draws on the expertise of David Limbaugh as evidence against Koh:

Limbaugh goes on to comment: “Whether or not Koh ever responded to Stein’s letter, Stein’s representations of Koh’s remarks are certainly consistent with Koh’s writings that I reviewed.”

Limbaugh, of course, is himself a fan of religious supremacy in the USA, although in his case his preference is for Christian fundamentalism. However, Limbaugh’s “review”, at Townhall, adds no new information as regards Koh’s views on Shariah, and is instead a rant against his supposed “transnationalism”.

UPDATE: Fox News explains Koh’s views to the masses, with a bit of help from Nonie Darwish:


The particular phrasing for the list of punishments appears in only one other place online, in an essay by Lauren Vriens for the Council for Foreign Relations, and I have confirmation that the wording is her own. Here’s the actual context (emphasis added):

Marriage and divorce are the most significant aspects of sharia, but criminal law is the most controversial. In sharia, there are categories of offenses: those that are prescribed a specific punishment in the Quran, known as hadd punishments, those that fall under a judge’s discretion, and those resolved through a tit-for-tat measure (ie., blood money paid to the family of a murder victim). There are five hadd crimes: unlawful sexual intercourse (sex outside of marriage and adultery), false accusation of unlawful sexual intercourse, wine drinking (sometimes extended to include all alcohol drinking), theft, and highway robbery. Punishments for hadd offenses–flogging, stoning, amputation, exile, or execution–get a significant amount of media attention when they occur. These sentences are not often prescribed, however. “In reality, most Muslim countries do not use traditional classical Islamic punishments,” says Ali Mazrui of the Institute of Global Cultural Studies in a Voice of America interview. These punishments remain on the books in some countries but lesser penalties are often considered sufficient.

UPDATE 2: From the Yale Daily News:

In an interview Thursday, Robin Zorthian ’76, who organized the event in Greenwich, dismissed Stein’s claims as entirely false. Zorthian said Stein, a Yale alumnus’ guest that night, seemed a “tad unreasonable” throughout the question-and-answer session with Koh.

“[Koh] never said that Shariah law could or should be applied in the United States,” Zorthian said. “It seemed as if [Stein] was trying to pin down [Koh] to say something.”

Zorthian has also written a letter to the New York Post:

I was the organizer of the Yale Club of Greenwich event on March 13, which Meghan Clyne references.

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.

Hopefully, your readers are interested in the facts.

Robin Reeves Zorthian
Yale Alumni Association of Greenwich
Greenwich, Conn.