The sole virtue of being the last among bloggers to weigh in on yesterday’s Hamdan verdict is having a chance to read what everyone else is saying. The New York Times, the ACLU, Human Rights First and others are pretty scathing in their criticism: don’t be fooled by the patina of fairness evinced by the split verdict, this system is irretrievably broken.

The White House’s rhetoric was comparatively reserved, saying in a statement the Times quotes: “The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial.”

The campaigns largely talked past each other on how trials for detainees like Hamdan should be handled. After proclaiming the verdict as evidence of the system’s success after Congress fixed it by passing the MCA in 2006, McCain’s statement says:

This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.

Of course, that’s not quite Obama’s position. That campaign issued this statement:

I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial - the first military commission trial with a guilty verdict since 9/11 - took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Osama bin Laden and the terrorists who murdered nearly 3000 Americans.

And everyone recognizes there are appeals to come, as well there should be. But while there are obviously some important legal questions to be resolved here (on that I hope later better than never), I confess I’m not sanguine about the likelihood of Hamdan prevailing, as much for reasons of atmospherics as law. In many respects, this trial gave the impression of normalcy. The ‘judge’ evaluated a host of pretrial motions, ruling in Hamdan’s favor on some, in the government’s favor on others. The ‘jury’ deliberated at length and thoughtfully, acquitting Hamdan of the broadest (and least plausible) allegations that would have led him to taking direct blame for terrorist attacks of which he was (at most) distantly aware. There are enormous questions of the legitimacy of some of the factual evidence the commission considered, but at base, my understanding is that the central conduct for which he was convicted – driving Osama bin Laden – is not actually much (or at all) in dispute.

Will a federal court look past these facial features to probe the real legal questions here? Only a delinquent court would fail to do so. But judges are not immune to atmospherics like this. And many have a habit to decide only what needs to be decided in the individual case. It’s the perception challenge that will be among Hamdan’s greatest on appeal. I’d welcome being proven wrong.

To tide readers over until Deb offers her thoughts, readers interested in some of the strengths and the weaknesses of the Hamdan verdict would do well to read Dave Glazier’s post at National Security Advisors and Marty Lederman’s post at Balkinization.

Durham University’s International Boundaries Research Unit has made a map that illustrates the various disputes over the Arctic. The BBC reports:

“Its primary purpose is to inform discussions and debates because, frankly, there has been a lot of rubbish about who can claim (sovereignty) over what,” explained Martin Pratt, director of the university’s International Boundaries Research Unit (IBRU).

“To be honest, most of the other maps that I have seen in the media have been very simple,” he added.

“We have attempted to show all known claims; agreed boundaries and one thing that has not appeared on any other maps, which is the number of areas that could be claimed by Canada, Denmark and the US.”

The map is available here.

Another example of  how geography and cartography can affect international law.

Hat tip: Futurismic

Well, the Hamdan verdict is in: guilty on five counts of material support to a terrorist organization, but significantly for cases to come - not guilty on the far broader charge of conspiracy. The Times’ story is here. Sentencing to follow this afternoon.

This is hardly the end of the story. There will certainly be appeals. But it is no doubt a significant milestone: the first trial conviction of any of the detainees at Guantanamo Bay. I’ll be back later this afternoon with some more detailed thoughts.

UPDATE: The Hamdan charge sheet is available here. Hamdan was acquitted of both specifications of conspiracy, and on Specifications 1, 3, 4 of the material support charges.

The State of Texas carried out its execution of Jose Ernesto Medellin late Tuesday night.  It did so following the Supreme Court’s denial of a stay, 5-4.  The split is unsurprising, with the majority focused (accurately I suspect) on the fact that a legislative fix was unlikely, and reading DOJ’s silence on the stay request as consistent with a larger pattern of Executive hostility to the ICJ ruling itself.  In terms of dissents, Justice Stevens moved from concurring in the original Medellin decision to dissenting on this one, having wanted to require the reluctant Solicitor General’s Office to provide views (the other dissenters echoed the call for paper from the S.G.).  Separately, I was disappointed to see the majority did little to qualify the confusion its Medellin decision caused over the domestic legal status of U.S. treaties.  The Majority simply noted that the treaty does “not itself have the force and effect of domestic law sufficient to set aside the judgement or ensuing sentence.”  That still leaves me wondering whether the court’s denial of domestic law status to non-self executing treaties means that they are not domestic law in any sense or only that they’re not judicially enforceable domestic law.

So, now what?  The United States has breached its obligation to comply with the ICJ’s Avena decision (not to mention the more recent provisional measures order).  But what exactly will that mean here?  Can Mexico now legally engage in reprisals or retorsion against the United States or (to take up Peter Spiro’s idea of targeted retaliation) against Texas specifically?  Even if it can, will it do so?  To date, Mexico has appeared content to employ the ICJ to amplify its rhetorical opposition to its citizens’ fate.  As yet, it’s taken few concrete actions to actually force a change in the U.S. position (i.e., doubling the time it takes US trucks to cross the border; suspending mutual legal assistance or extradition with the United States, etc.).

I was hoping that the discussion last week would address not only who could be tried by a military commission, but also for what crimes someone could be tried.  That issue flared up again yesterday in the Hamdan trial, when the presiding military judged refused to instruct the jury that any attempt by an “unlawful enemy combatant” — a status that, as innumerable scholars have pointed out, does not exist under international humanitarian law — to kill a soldier is a war crime…

Okay, so Medellin himself is going down. But as Julian highlights above, Texas has now undertaken to extend some sort of review and reconsideration to others covered by the Avena judgment.

Why the quiet retreat? Here’s some totally unsupported speculation: this is the result of a deal between Texas and Mexico. The GOM is sophisticated enough to understand that, in the end, Medellin wasn’t going to get any relief here: too gruesome a murder. too high profile a case, too much for Texas to back away from, all that complicated by state law quirks that deprive Governor Rick Perry of the final say. On the other side, for all its bluster along the lines of “we didn’t sign no treaty,” Texas understands that the Avena controversy hasn’t been good for the state’s global image.

So this represents the putative compromise. A slender reed of evidence for a deal: the Mexican government is MIA in all the press reports on Medellin’s impending execution. It appears not to be complaining publicly about the clear violation an IL obligation. If there were some sort of agreement (calling Duncan Hollis!), then Mexico wouldn’t go back to the ICJ to complain that Texas’ version of “review and reconsideration” isn’t good enough. Julian asks what Texas has gotten itself into here. But maybe they’ve finally dug themselves out..

That, in essence, is the surprising argument that the Coast Guard raised in a recent administrative law decision involving regulation of shipping traffic to protect an endangered species. In Defenders of Wildlife v. Gutierrez, the D.C. Circuit was presented with the question of whether Coast Guard action implementing “traffic separation schemes” constituted “final agency action” within the meaning of the Endangered Species Act. North Atlantic Right Whales are critically endangered, and ship strikes are the greatest source of known deaths. Defenders of Wildlife argued that the traffic rules failed to take sufficient account of the need to protect this species. The Coast Guard argued that it was simply following the orders of the International Maritime Organization, an agency of the United Nations, and therefore its conduct was not final agency action subject to judicial review. In short, the Coast Guard was arguing that we’re just traffic cops following the orders of an international agency, so federal courts have no jurisdiction to second guess how we implement the scheme of global governance established by the IMO. The district court agreed, but the D.C. Circuit wasn’t buying it….

Almost buried amid the last-minute flurry of litigation over Medellin’s pending execution tonight at 7 p.m. EDT, Texas has made a potentially important but ambiguous concession to the ICJ.  It has agreed to support federal habeas petitions in the future for Mexican citizens arguing that a failure of consular notification had caused prejudice to their criminal conviction and death sentence.  Here is the somewhat curious but very interesting statement by Texas, made at the very end of a brief which aggressively resisted any attempt by the U.S. Supreme Court to block Medellin’s execution.

Greg Fox of Wayne State University Law School has posted a new article on SSRN that examines the proposed US/Iraq Status of Forces Agreement (SoFA) from a unique angle. Discussions in U.S. academic journals and blogs have tended to focus on the constitutionality under U.S. law of the Administration pursuing the completion of a long-term security arrangement with Iraq under the auspices of a SoFA that is not submitted to Congress. But Greg’s analysis looks at the SoFA from through the optics of Iraqi law and politics as well as international law and asks what would be the result if the Iraqi Prime Minister “approved” the SoFA but the Iraqi Parliament did not.

The article abstract begins:

The United States and Iraq are about to conclude a Status of Forces Agreement (SOFA) designed to replace UN Security Council resolutions as the legal basis for a continued U.S. troop presence in Iraq. But it appears the Iraqi Prime Minister and the Iraqi Parliament are divided on the desirability of a SOFA, the former favoring the agreement and the latter opposing it. Because the United States has pushed very hard to complete an agreement, one possible scenario is that the Iraqi Parliament will refuse to ratify the SOFA. What would happen if the Iraqi Prime Minister nonetheless signed the agreement, representing that his signature was sufficient to bind the state of Iraq?

Few dispute that such an act would violate the 2005 Iraqi constitution, which requires parliamentary approval of all treaties. This article inquires into the international legal effect of such a national law violation. It concludes that under Article 46 of the Vienna Convention on the Law of Treaties, the SOFA would be voidable at the discretion of future Iraqi governments…

Thus, rather than rehashing the arguments over Executive versus Congressional power under U.S. law, this article frames the issues within Iraqi domestic law and the international law of treaties. A welcome addition to the debate over the Iraqi SoFA.

One’s peaceful childish images are shattered by a visit to the fragile town of Bethlehem. “The reality of life in Bethlehem today confounds the traditions of the Christmas story: How could the shepherds, abiding in their fields beyond the wall, visit the Christ child? And what about the Magi? Would they have the proper travel documents to enter Bethlehem? Would their gold, frankincense and myrrh be confiscated at a checkpoint? In the troubled “little town” of Bethlehem, the angels’ song of “Peace on Earth” seems faint indeed.” My host is a highly-educated Palestinian Christian who is actively engaged in interfaith peace negotiations. His charge was twofold: provide a private tour of the holy sites and offer his unadulterated version of the impact the security barrier has had on the people of Bethlehem. I left Bethlehem feeling that the town was broken. Here are some of the highlights….

As I’ve mentioned before, I’m completing a short, popular, non-academic, policy book on US-UN relations.  The genesis of the book, however, was the run-up to the UN reform summit, the General Assembly summit (and accompanying final document) of September 2005.  My editors have been beyond patient in waiting for me to finish this not-very-large project.  But I must say that the one silver lining in my dilatoriness is that enough time has passed to see that the festival-like atmosphere surrounding “UN reform” in 2005 has not really amounted to much over the succeeding couple of years.  I was caught up, like many others, in the hoopla in 2005.  Had I done what I intended at that moment, I would have produced a breathless essay on the perils and promise of UN reform.  Which would have seemed, just a year or so later, let alone today, silly and overwrought.  But what has happened, or not, with UN reform dating from 2005?

Last week, reflecting on the effusive welcome he received in Germany, Obama said the following to a group of House Democrats:

It has become increasingly clear in my travel, the campaign, that the crowds, the enthusiasm, 200,000 people in Berlin, is not about me at all. It’s about America. I have just become a symbol of the possibility of America returning to our best traditions… this is the moment, as Nancy [Pelosi] noted, that the world is waiting for.

Dana Milbank then reported that quote in The Washington Post as follows:

[Obama] told the House members, “This is the moment . . . that the world is waiting for,” adding: “I have become a symbol of the possibility of America returning to our best traditions.”

The liberal blogosphere was predictably — and justifiably — outraged that Milbank would so blatantly distort the meaning of Obama’s statement, implying that he was “arrogant” or “presumptuous” (the new right-wing meme), instead of self-effacing and humble, concerning his world-wide popularity…

On behalf of all of us at Opinio Juris, I want to thank Benjamin Wittes  for joining us this week for a symposium his book Law and the Long War.  We also want to thank  Bobby Chesney,  Geoff Corn, Marty Lederman, Glenn Sulmasy, and Steve Vladeck for their guest-blogging with us. Their contributions were invaluable.

We also want to thank everyone else from the Opinio Juris community who commented or followed the discussion.

We hope you found it interesting and useful.

Later this month, we will have our next book symposium (our first from the Oxford University Press/ Opinio Juris Book Club). Dean Tom Farer of the Graduate School of International Studies of the University of Denver (and other guests) will be joining us to discuss his book Confronting Global Terrorism and American Neo-Conservatism: The Framework of a Liberal Grand Strategy.

It should be a good follow-up to the symposium we have just completed. More details soon.

Well, we never got as far as interrogation or surveillance, but that’s okay. This has been a truly exceptional exchange, a model of everything the debate over law and the war on terror too often is not: civil, serious, rigorous, and respectful of the profound difficulty of the issues at hand. Many thanks to all who participated in it and to the OJ team for hosting it.

One big-picture thought in closing: We’re actually approaching some kind of synthesis here, or at least veering in the general direction of one. On the book’s basic premises, the argument is between those (like me) who believe that that congressional design of the system is essential and that judicial design dangerous but who also believe that extensive judicial involvement in the system is critical to its success and those who believe that judicial involvement is essential and that judicial design is not all that scary, but who also welcome congressional design involvement. That’s not an insurmountable divide, frankly. On detention, the argument is between those (like me) who believe that the existing detention powers of the government should be supplemented by one tailored to the current problems and those who believe that law of war and the criminal law adequately provide for and regulate detentions in the current conflict. That’s also not an insurmountable barrier, since I agree that the laws of war are, in a pinch, serviceable and Marty, Deborah, and Steve do not seem per se against any supplmental authority. Had we gotten as far as interrogation, I suspect we might have said something similar there, and recent congressional evidence of an emerging consensus on surveillance is, well, pretty striking…

I want to close by thanking Ben for writing this terrific book, and our hosts here at OJ for sponsoring this discussion.  Before sigining off, however, I want to offer a few predictions and related observations about the road ahead.

It appears quite possible that in the near future we will substantially reduce our reliance on military detention for terrorism suspects at least insofar as they are captured outside of Iraq and Afghanistan (I predict that no matter who wins the next election, we are not going to abandon or even substantially alter our detention practices in either of those theaters). 

Assuming that this change is not accompanied by adoption of a hybrid detention framework along the lines Ben has proposed, this will result in increased pressure on DOJ to identify grounds for prosecution (I predict that no matter who wins the next election, there will still be substantial interest in preventive incapacitation rather than just surveillance of terrorism suspects (though you should listen to this story by Ari Shapiro on NPR Morning Edition for the view that FBI may be leaning in the latter direction these days as it grows into its intelligence-gathering responsibilities)). 

We may then go a substantial period without any further attacks in the US.  In that case, I predict that we will see a growing trend of criticism attacking the substantive scope of federal criminal law relating to terrorism, particularly as it relates to conspiracy and material support prosecutions, and in general a greater backlash against the prevention-oriented framework of current counterterrorism law. 

Sooner or later, however, we will again suffer a strategically-significant terrorist attack in the US (or a series of smaller attacks, akin to the Beltway Sniper, that collectively have a strategic impact).  At that point, we will experience tremendous pressure either to revert to our post-9/11 practices or perhaps even undertake more draconian measures.  When that moment comes, I hope that we heed Steve’s warning not lose sight of our past problems and abuses.  If we can do that, though, I believe the result will be to draw us toward just the sort of proposals that Ben has set forth in Law and the Long War.  I am predicting, in short, that the conversation we’ve had this week will be relevant for a very long time to come.

I must confess that I’ve been a bit cowed into silence by the heavyweight detention discussion between Deborah, Marty, and Ben. At the risk of wading in, though, I think Ben’s point in his most recent post — that detention should be based upon “dangerousness in the context of a showing of some significant relationship with groups against which Congress has authorized the use of force” seems reasonable on the surface, but assumes away the problem that cases like Parhat illustrate, i.e., the demonstration of “some significant relationship.” Is it true that anyone with such a relationship is presumptively dangerous, and thereby detainable under Ben’s framework? Or is there a second showing — first that there is a relationship, and second that within the contours of that relationship, the particular detainee is particularly dangerous? If Ben means the second, then I’m far less troubled (although not completely satisfied, for some of the reasons articulated by Deborah and Marty). But if Ben means the first, then we’re right back where we started, no?

We’re supposed to start winding down this conversation, so rather than dwell on this point, I want to briefly segue to a larger question that has plagued me from the beginning of this debate: are we to judge proposals like those in Ben’s book in a vacuum? Or, in contrast, should we see these proposals through the lens of the many egregious missteps the Bush Administration has taken in its conduct of the fight against terrorism over the past seven years?

A few final thoughts on detention and Al-Marwallah before we move on to interrogation–a subject on which I’m certain my arguments will provoke no disagreement.

First, a concession: Marty is quite right that there is an ambiguity in the book concerning what the Al-Marwallah example stands for. I had not noticed this until his last post, and it warrants clarification. I believe that someone like Al-Marwallah is detainable on the basis of the laws of war (as, with a little more hand-wringing than I would expend on the man, does Marty). In other words, we agree that he is very likely subject to lawful extra-criminal detention of some sort for some very long period of time. I do, however, also thing that if we are totally honest about why we want to detain people like Al-Marwallah, we have to acknowledge that our reasons are not quite the same as they are in conventional law of war detentions. In these more conventional detentions, we detain because the subject is an obvious (by dint of his uniform) arm of a state with whom we have a political difference unbridgeable except by the use of force. We consider the detainee an honorable figure to whom no opprobrium attaches and with whom we have no individual battle. And we offer him no–or almost no–process, because we assume there to be no doubt as to his identity, affiliation, or status. Moreover, we don’t sweat much over his liberty because we know he’ll be released at the termination of hostilities…