The International Criminal Court Assembly of States Parties has opened their second session in the Hague this week. The Assembly of States Parties is composed of representatives of all of the governments party to the ICC Statute, that is to say, those countries that have signed and ratified the ICC Statute.

Of course, the U.S. has famously revoked its signature to the ICC Statute. Or has it? According to the ICC’s official statement, the U.S. is a “observatory signatory.” That is, the U.S. is not a party “to the Statute but ha[s] signed either the Statute or the Final Act of the Rome Conference. . .” As such, it “may be [an] observer[] in the Assembly. Observer States are allowed to participate in the deliberations of the Assembly, but may not participate in the taking of decisions.”

Does “unsigning” even matter if the U.S. is not a party to the treaty? It might, because states that sign a treaty generally have an obligation to try to comply with the treaty until it ratifies. This obligation is one of the reasons the U.S. tried to “unsign” back in 2001. In any case, it looks like the ICC hasn’t accepted the U.S. revocation of its signature. This might or might not matter, but it is certainly a strange situation. Perhaps it represents the ICC’s wishful thinking — if they can just hold on until 2008 and President Hillary…

First of all, I want to thank Chris, Peggy, Julian and Roger for letting me spend some time here at Opinio Juris. As an avid reader, I’m looking forward to the opportunity to exchange ideas with other Opinio Juris readers.

To that end, I want to start off with a question about judicial treatment of non-self-executing treaties. U.S. courts have certainly devoted considerable (albeit often inconsistent) attention to the question of when to enforce a U.S. treaty by declaring it “self-executing” or “non-self-executing.” But the inquiry always seems to end once a court decides the treaty in question is “non-self-executing.” Having made that determination, U.S. courts generally view such treaties as irrelevant to the case at hand.

What I am wondering is why courts don’t proceed to apply the Charming Betsy canon—i.e., “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” 6 U.S. (2 Cranch) 64, 118 (1804). After all, U.S. treaty practice is not to join a treaty unless the necessary domestic steps have been taken for the United States to be able to comply with the treaty. Sometimes this will require new legislation (e.g., the Senate gave advice and consent to the Basel Convention in 1992, but the United States has not ratified it pending the enactment of existing legislation). But other times the United States goes ahead and joins the treaty under the assumption that existing legislation meets the treaty’s requirements. This was the case, for example, with U.S. adherence to human rights treaties such as the ICCPR where, subject to the U.S. reservations and understandings, the Executive Branch (with Senate concurrence) took the position that existing law generally satisfied U.S. obligations under the treaty. If that’s true (and certainly we could debate the U.S. interpretation of what the treaty required), why don’t courts who decide a treaty is non-self-executing look at whatever law the United States indicated was the basis for U.S. adherence and analyze it with an eye to the treaty itself? Why not apply the Charming Betsy canon to non-self-executing treaties?

Let me be clear — I’m not suggesting direct judicial enforcement of such treaties, although I suspect some might view a Charming Betsy analysis as a back-door way of doing so. Rather, I am suggesting that courts that decide not to enforce a treaty directly could still utilize the treaty as an interpretative tool with regard to whatever law(s) the Executive Branch indicated was the basis for U.S. adherence to a treaty in the first place. I wonder whether such an approach could bridge the gap between those who object to giving treaties direct legal effect and those who want to ensure treaties receive recognition as the supreme Law of the Land under Article VI? I’d be interested in whether people are aware of any courts taking the approach I am suggesting (I think some WTO caselaw might lean this way but wonder whether the Uruguay Round Agreements Act makes it a case sui generis)? If there’s no existing precedent on this front, do people think it would be a feasible or appropriate thing for U.S. courts to do?

Today is my last day as a guest-blogger here at Opinio Juris, and so I’d like to begin by thinking Peggy, Roger, Julian, and Chris for their hospitality. I must say that I have a new respect for the effort that they put forth in generating the wonderful product from which we all benefit on this blog. Let’s hope they keep at for a long time to come.

On to more interesting matters…this just isn’t a good week for the U.S. vis-a-vis cooperation with our European allies with respect to counterterrorism. Yesterday, an Italian judge determined that a former diplomat at the U.S. embassy in Rome who was, apparently, the CIA’s Chief-of-Station at the time, should not receive the benefit of diplomatic immunity with respect to the arrest warrant issued in connection with the extraordinary rendition/seizure of Egyptian cleric Osama Moustafa Nasr. Don’t hold your breath on any U.S. citizens being extradited in connection with this case, of course. Meanwhile, both the Council of Europe and some member states continue to move forward with investigations associated with claims that the CIA operates “black site” detention centers for high-level al Qaeda detainees in undisclosed European locations (or at least transships such detainees through European airports).

That’s all for now. It’s been a real pleasure!

Comparative law is law’s cybernetics, or ‘theory of messiness.’ It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law’s traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular.

The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today’s world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge.

Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning.

Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.

Federal courts routinely assert that they are bound to give deference to treaty interpretations adopted by the Executive branch. See, e.g., Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-85 (1992) (stating that the “meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight”). And, at least as an anecdotal matter, conventional wisdom holds that the executive viewpoint does prevail in most, if not quite all, instances. But is conventional wisdom accurate on this score? I’m inclined to agree that courts do tend to conform to the executive viewpoint, but it also seems likely that the nature of judicial deference to executive treaty interpretations might vary in different contexts.

Potentially relevant variables might include: the manner in which the Executive’s “view” is made known to the court (e.g., the view might be stated by the U.S. as a litigant in its own brief; it might be stated by the U.S. as amicus; it might be stated in diplomatic correspondence that is brought to the attention of the court by private litigants; or it might be implicit in U.S. practice which is then brought to the attention of the court by litigants); whether the Executive’s “view” was presented to the Senate during the process of obtaining its consent to the treaty (an issue that generated considerable debate during the 1980s in connection with the Reagan Administration’s proposed reinterpretation of the ABM Treaty); whether the current Executive view departs from a prior view; and, of course, the subject-matter in issue. The more one thinks about these and other potential distinctions, the more it seems that it would be a mistake to view judicial deference to executive treaty interpretations as a monolithic phenomenon.

Why do I mention all of this? Well, I’ve recently drafted an essay setting forth my initial thoughts on the topic, and am now in the process of collecting cases in connection with a quasi-empirical inquiry into the matter. I’d be quite grateful for any suggestions that readers may have as I go about refining the design of this project.

Professor Duncan Hollis of Temple University School of Law will be blogging with us for the next month. Professor Hollis is a specialist in treaty law and has edited a new book, National Treaty Law and Practice. Other examples of his scholarship can be found on his SSRN page. Prior to entering the academy, Professor Hollis was in the U.S. State Department, where (among other things) he worked on treaty affairs, international environmental matters, and also served as Counsel to the United States in the provisional measures phase of the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States) and contributed to the U.S. presentation in the Oil Platforms Case (Iran v. United States).

Welcome to Opinio Juris!

The LA Times recently carried this op-ed by former Australian FM Gareth Evans on the successes of preventive diplomacy and peacekeeping (perhaps better described as peacemaking) missions around the world. He cites the Human Security Report 2005 for evidence that the incidence of war is on the decline, and that third-party interventions (diplomatic, sanctions, military deployments) play a large role in the success stories.

As Evans notes, one of the problems of measuring success is how to determine the conflicts that were avoided – the Holmesian (Sherlock, not Oliver Wendell) “dogs that did not bark.”

There are many reasons for these turnarounds. They include the end of the era of colonialism, the aftermath of which generated two-thirds or more of all wars from the 1950s to the 1980s. The end of the Cold War meant no more proxy wars fueled by Washington or Moscow, and it also hastened the demise of a number of authoritarian governments that each side had been propping up and that had generated significant internal resentment and resistance.

But the best explanation is the one that stares us in the face: the huge increase in international efforts to prevent, manage and resolve conflicts.

The best stories are the ones that do not reach the evening news: the dogs that never barked. Using the hard lessons learned from the disastrous days of the early 1990s in places such as Bosnia, Rwanda and Somalia, the international community is much better now than it ever used to be at preventing conflict. Between 1990 and 2002, the number of U.N. diplomatic missions aimed at stopping wars before they started increased sixfold, according to the Human Security eport. Although sometimes an imperfect tool, economic sanctions against abusive regimes around the world increased elevenfold between 1989 and 2003. Early and sensible action in places such as Burundi, Indonesia and Macedonia has kept most Americans blissfully unaware that these were countries that recently veered away from the large-scale violence that has plagued them in the past.

Evans is a proponent of the doctrine of the “responsibility to protect” – an effort to create a norm that the international community has not a right, but a duty under international law to go into states where through armed conflict, mass human rights violations or large-scale humanitarian disaster, the state has not protected the most basic rights of its inhabitants. Evans explained the concept in this article (via the International Crisis Group website) in Foreign Affairs last fall:

Using this alternative language will help shake up the policy debate, getting governments in particular to think afresh about what the real issues are. Changing the terminology from “intervention” to “protection” gets away from the language of “humanitarian intervention.” The latter term has always deeply concerned humanitarian relief organizations, which have hated the association of “humanitarian” with military activity. Beyond that, talking about the “responsibility to protect” rather than the “right to intervene” has three other big advantages. First, it implies evaluating the issues from the point of view of those needing support, rather than those who may be considering intervention. The searchlight is back where it should always be: on the duty to protect communities from mass killing, women from systematic rape, and children from starvation. Second, this formulation implies that the primary responsibility rests with the state concerned. Only if that state is unable or unwilling to fulfill its responsibility to protect, or is itself the interpetrator, should the international community take the responsibility to act in its place. Third, the “responsibility to protect” is an umbrella concept, embracing not just the “responsibility to react” but the “responsibility to prevent” and the “responsibility to rebuild” as well. Both of these dimensions have been much neglected in the traditional humanitarian-intervention debate. Bringing them back to center stage should help make the concept of reaction itself more palatable.

What do OJ readers think of the “responsibility to protect?” Is it just another name for “humanitarian intervention?” Or does it imply a new conception of sovereignty itself, conditioned on “right conduct” at home and within the international community? Comments are open.

Federalism can be a tricky issue when it comes to foreign relations. On the one hand, states of the U.S. may not enter into treaties as foreign policy is the reserve of the federal government but, on the other hand, if a U.S. state breaches international law, it is the country as a whole that is responsible under international law.

This week there were two stories concerning states of the U.S. and foreign policy. First, there are the reports of Massachusetts and New York entering into agreements with the government of Venezuela and Citgo, the U.S. sub of the Venezuelan national oil company, to provide cheap heating oil to low income housing in those states. While states are not allowed to enter into treaties, they do in fact enter into many such agreements on a whole host of foreign trade and investment issues. In any given year, in fact, the number of state government foreign trade missions dwarfs the number of such missions from the federal government. Of course, these Venezuelan oil deals are especially contentious since Venezuelan President Hugo Chavez will use them to thumb his nose at the U.S. government. The deal was announced by Chavez during an official visit to Cuba, no less. I guess this is payback for Pat Roberston ordering a fatwa on Chavez, but at least it is payback in which some poor people can get cheaper heating oil.

Another aspect of international law and federalism has been how international standards have affected state regulations. New York has joined ten other states, including California, to have enacted (or be in the process of enacting) greenhouse gas emission standards that more closely hew international standards than those of the U.S. The result is an impending battle royale of litigation over whether New York can set more protective environmental standards than the federal government. New York isn’t claiming that it is doing this because of international law; rather I find this interesting because the international discourse on greenhouse emissions, as centered around the Kyoto Treaty, undoubtedly informed this bit of domestic legal change. The New York Times specifically mentioned that Gov. George Pataki supported the global greenhouse gas emission regulations and subsequently sought action by the NY state government. The results could be significant. The New York Times reports:

“The two biggest contributors to global warming are power plants and motor vehicles,” said David Doniger, a senior lawyer for the Natural Resources Defense Council. “If you deal with them, you deal with more than two-thirds of the problem.”

But automakers contend that the regulations will limit the availability of many sport utility vehicles, pickup trucks, vans and larger sedans, since they will effectively require huge leaps in gas mileage to rein in emissions. The industry also says the rules will force them to curb sales of more-powerful engines in the state, and ultimately harm consumers by increasing the cost of vehicles.

The standards are the most ambitious environmental regulations for automobiles since federal fuel economy regulations were enacted in the 1970’s. They will be phased in starting with 2009 models and require a roughly 30 percent reduction in automotive emissions of carbon dioxide and other greenhouse gases by the 2016 models.

So, between foreign oil deals and the give and take of norms between the international and domestic system, states of the U.S. often affect—and are affected by—international law and international relations.

Syria has agreed to comply with the demands of Security Council resolution 1636 and will cooperate with the Hariri investigation by allowing five Syrian government officials to be interviewed in UN offices in Vienna. This ends, for now, the Syrian stalemate with the Council, and avoids a follow on resolution that would likely have slapped sanctions against Syria. The progress of the Mehlis team investigating the Hariri murder and the Security Council’s robust response is significant, fairly rebutting Julian’s view that UN investigations tend to produce “muddy, often useless conclusions.” But it is also too early to declare complete success here.

What will happen to the co-conspirators in the Hariri assassination? If the earlier conclusions about official Syrian involvement are true, Assad faces further tough decisions with enormous international and domestic implications. It is not a foregone conclusion that the Council will continue to take a tough stance and hold Syria to the stringent obligations of 1636. The Council is, nonetheless, the only mechanism through which meaningful international sanctions can be imposed. As such, the case demonstrates the value of the UN playing the role of the disinterested third party in an investigation in which no one country can claim to be truly neutral.

Less than a week after the U.S. surrendered to a NAFTA tribunal’s order to eliminate U.S. duties on Canadian lumber, Canada brazenly announced yesterday that it would add a $1.28 billion subsidy to existing supports for the Canadian lumber industry. In other words, just as the U.S. dropped its duties in a good faith gesture, Canada has decided to whack the U.S. by adding even more subsidies to its (already wealthy and prosperous) lumber industry.

This little episode reminds us that there are no good guys or bad guys in most international trade disputes. The U.S. has been dilatory in its response to NAFTA judgments. But for all their posturing about respect for international trade rules, Canada’s leaders have proven themselves to be relentlessly pursuing their industry’s advantage, even against the spirit of the NAFTA trade rules.

Recently declassified documents at the National Security Archives show how President Nixon and Henry Kissinger were concerned that U.S. nuclear strategy was basically only a single option: Mutually Assured Destruction. The documents show how a mix of moralism, strategy, bureaucratic politics, and even Watergate drove the National Security Council to grapple with the idea whether there could be a limited nuclear war. It is the story of how the Single Integrated Operational Plan or SIOP was reconsidered during the Nixon Administration and how its three target packages—Alpha, Bravo, and Charlie—became part of the new doctrine. The documents and the analysis of William Burr of the National Security Archives are available here.

The tone of the memos and transcripts is framed, perhaps, by Kissinger’s quote from one NSC meeting that “to have the only option of killing 80 million people is the height of immorality.” Yes, but that doesn’t mean that the other options don’t make for chilling reading. While Nixon, in particular, was concerned with the specter of nuclear annihilation, there was also the concern was that the U.S.’s nuclear threat would not be credible if the only threat we had was to destroy the world. Credibility required some option that was less extreme. Consequently, pragmatism also informed the strategic reconsideration

The documents also show other factors that may be somewhat surprising. For example, one report notes that

The documents reveal Kissinger’s chilling insight that government budget-crunchers would prefer complete nuclear warfare because it was already planned for and would be cheaper than recasting U.S. capabilities to permit limited strikes.
“They believe in assured destruction because it guarantees the smallest expenditure,” he told an August 1973 National Security Council meeting in the White House Situation Room.

Watergate also played a part in the increased focus on a survivable nuclear option. Kissinger said in an August 1973 meeting that “My nightmare is that with the growth of Soviet power and with our domestic problems, someone might decide to take a run at us.”

The various declassified documents, and William Barr’s guided tour through the documents shed light on how the government went about considering the issues of the utmost importance, which literally had implications for the survival of the species.

Burr notes the following, for example:

Not all in the government agreed with Kissinger on the merits of limited nuclear options. One of Kissinger’s close advisers, Winston Lord, signed off on a paper prepared by several members of the Planning and Coordination Staff that took exception to the new thinking. While no one quarreled with the merits of flexibility, the Staff worried about some of the implications of the concept of “controlled nuclear escalation,” including a “possible adverse impact on deterrence, overreliance on nuclear forces, and overconfidence in the applicability of nuclear escalation in a wide variety of situations.” The arguments did not persuade Kissinger, who scrawled: “Good paper though I disagree with much of it.”

For those with an interest in national security or executive decision-making, Burr’s essay and the underlying documents are a compelling read.

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After months of whining by high-level Canadian politicians, the U.S. Commerce Department announced yesterday that the U.S. will comply with a NAFTA tribunal’s decision requiring the reduction or elimination of U.S. duties on Canadian lumber. The U.S. refusal to eliminate these duties had been one of the main sources of friction between the U.S. and Canada and potentially threatened the long-term viability of NAFTA itself.

This is far from the end of this long-running, dispute between the U.S. and Canada over lumber. Big Lumber in the U.S. is deeply disappointed calling the Commerce decision wrongful as well as “unconstitutional.” As I discussed earlier here, Big Lumber has filed a complaint in U.S. district court seeking to have the entire NAFTA Chapter 19 arbitration process declared unconstitutional.

Still, at least Canada can’t complain that the U.S. doesn’t respect NAFTA. Hopefully, the U.S. and Canada can now sit down and negotiate a full settlement of this essentially ridiculous dispute between two governments that should know better.

An Australian national convicted by Singapore of drug running is facing execution next week, causing much justifiable angst in Australia. Some are advising the Australian government to seek a provisional measures order from the ICJ to stop the execution. As Australia’s Prime Minister announced today, however, such an appeal to the ICJ would be “pointless” because Singapore hasn’t done anything illegal.

I agree that an appeal to ICJ is a hopeless case because Singapore does not accept the compulsory jurisdiction of the ICJ and because Singapore almost certainly hasn’t violated any treaty or international law obligations it owes to Australia in convicting and then sentencing the Australian national to death. If the ICJ got involved, though, the court might prove my skepticism about their slow and ineffectiveness wrong. But I doubt it.

It is hard to believe that a decade has passed since the signing of the Dayton Peace Accords that brought an end to the war in Bosnia. The peace in Bosnia certainly came too late for many (260,000 lost their lives in the war, over a million were displaced), but it did finally end the bloodshed. The implementation force for Bosnia — initially a NATO operation and now representing the first EU peacekeeping operation (EUFOR)– has succeeded in creating the conditions for democratic institution-building, resettlement, construction, foreign aid and investment, and some degree of reconciliation between the warring parties. And all this was accomplished with no casualties among peacekeepers deployed to enforce Dayton. UNPROFOR troops (those sent in under UN auspices to secure aid during the war) did suffer about 1,000 casualties pre-Dayton. So what made Dayton work?

First, the dispute was ripe for resolution. Bill Zartman at SAIS has defined ripeness in an armed conflict as a “mutually hurting stalemate.” Bosnia was not a prototypical stalemate in the summer of 1995; the Croats and Muslims had formed a coalition against Serb forces and had turned the tide by regaining territory on the ground. They were assisted by the decision of NATO to begin strategic bombing in response to an attack on Sarajevo and the massacre at Srebrenica. But the shifting fortunes on the ground made it clear that the US had the power to tip the balance in any direction. Second, the U.S. backed the peace. It was clear by 1994 that the earlier UN/EU peace process would not work. Engagement by the U.S., backed by NATO, made a difference. Indeed, it could be argued that by putting the credibility and the future of the NATO alliance on the line, the U.S. committed itself to success. Third, the appropriate number and right kind of troops were contributed to the implementation effort. The UN was kept out of Dayton implementation because they had failed during the UNPROFOR mandate. As Richard Holbrooke pointed out on the News Hour last night, if the ratio of troops currently in Iraq were as high as it was for the post-conflict phase in Bosnia, there would be 600,000 troops on the ground in Iraq, rather than 150,000.

Was Dayton perfect? No. There are flaws in both the process and the political arrangement - including the creation of two separate legal entities within Bosnia — that resulted at Dayton. The fact that Radovan Karadzic and Ratko Mladic are still at large ten years after their indictment by the ICTY is evidence, for example, that the “justice” part of the peace has had mixed results. And the governmental structures set up at Dayton have proved unworkable. That is why leaders of the main political parties in Bosnia committed themselves Tuesday to constitutional reform aimed at strengthening the central government. Such reforms are an important step toward European integration and eventual membership in the EU.

We will be studying and teaching the disintegration of the former Yugoslavia for many more decades to come. Dayton is just one piece of that complex case study.

For an additional view, Derek Chollet has this excellent analysis at Democracy Arsenal discussing lessons from Bosnia for the current crisis in Iraq.

Although it gets us a bit far afield from the focus of Opinio Juris, I’m going to follow Roger and Julian’s lead and blog briefly regarding the Padilla indictment. (Yes, I’m still here. Sorry to have been so quite the past two weeks, but I do plan to be more active in the days ahead!)

Many months ago, there was considerable speculation that the government would obtain a criminal indictment against Jose Padilla in the Southern District of Florida, where it was known that a grand jury was investigating a circle of alleged Islamist extremists said to have links to Padilla. This has now come to pass. A grand jury in Miami has issued an indictment against Jose Padilla (and four others), and the President has ordered the Secretary of Defense to transfer him to the custody of the Attorney General. (You can get to the indictment from Roger’s post).

This is actually a superseding indictment in the existing matter of United States v. Hassoun, et al., No. 04-600001-CR (Cooke) (S.D. Fla.). Indeed, I believe it is the 5th superseding indictment, although of course it is the first to add Padilla as a co-conspirator (an earlier iteration, with charges against Hassoun, Youssef, and Jayyousi, is described in a DOJ press release here. In any event, the current defendants are: Adham Amin Hassoun (in custody), Mohamed Hesham Youssef (currently in jail in Egypt), Kifah Wael Jayyousi (in custody), Kassem Daher (not sure if he is in custody here, in Canada (where he lives), or not at all), andJose Padilla (in custody, of course).

The indictment is a fascinating example of the way in which federal prosecutors make use of existing federal statutes to prosecute persons allegedly involved, to varying degrees, with Islamist extremism.

1. Section 956:

Conspiracy to commit violent acts outside the United StatesIn this instance, the indictment alleges the existence of a conspiracy - including but not limited to these defendants - the ultimate aim of which was to commit acts of violence in other countries. Based on that claim, the indictment charges a violation of 18 U.S.C. 956, which prohibits conspiracy to commit an act of violence outside the United States, so long as (i) the act would constitute the offense of murder, kidnapping or maiming if committed in the US and (ii) at least one act in furtherance of the conspiracy takes place in the U.S. What is very interesting here - although typical of how 956 has been charged since 9/11 - is that there is no attempt to allege with any particularity what the specific act of violence would be; the indictment instead merely describes at a general level the use of violence by the broader jihadist movement of which this conspiracy allegedly was a part. In this regard, it is worth noting that the indictment does not label the conspiracy as a component of al Qaeda or any other specific group. Instead, the indictment describes the conspiracy simply as part of the overall “radical Islamic fundamentalist movement . . . [based on] a radical Salafist ideology that encourage[s] and promote[s] ‘violent jihad’”. (Indictment at 1). Several organizations - including al Qaeda - are named as representative and constituent of that movement, but in the end there is no formal attempt to match the defendants to any one group (reflecting the widely-held view that the jihadist movement has network rather than formal group characteristics). Thus, the conspiracy is labeled the “North American Support Cell,” rather than, say the “al Qaeda Cell.”

2. Section 2339A:

Material Support (to an act, not a group)As also has happened in the past, the indictment pairs the 956 charge with a charge under 18 U.S.C. 2339A, the older of the two material support statutes. This is not the statute that prohibits the provision of support to designated foreign terrorist organizations; as noted above, the indictment avoids formal organizational labels, as it probably must. Instead, this is the version of the material support law that more closely resembles a traditional aiding-and-abetting statute; it forbids provision of suppport (for example, money) to anyone if done with knowledge the support will be used to further a violation of one of several listed statutes, including 956. In this case, the claim is that the cell conspired to (and did) provide money and other logistical assistance (fundraising, mainly) in connection with the 956 conspiracy described above.

3. The other charges:

The other charges all concern defendant Hassoun. He has been charged with unlawful possession of a firearm (18 USC 922); making false statements to federal agents (18 USC 1001); multiple counts of perjury arising out testimony before an immigration judge (18 USC 1621); and obstruction of those same proceedings (18 USC 1505).

The Washington Post is reporting that Jose Padilla, the alleged dirty bomber held for three years as an “enemy combatant”, has been indicted by a federal grand jury for conspiring to commit terrorist attacks overseas. Interestingly, the indictment does not include the “dirty bomb” charges that were the basis for Padilla’s detention as an enemy combatant.

The obvious reason for bringing this indictment is to avoid a coming showdown in the U.S. Supreme Court over Padilla’s detention. As a U.S. citizen, Padilla’s detention was probably going to be reversed by the current Court’s membership, and even a future court’s membership, with Justice Scalia poised to order Padilla’s release.

This avoids the enemy combatant issue for U.S. citizens, at least right now. But the issue of the President’s authority to hold enemy combatants who are not U.S. citizens, mostly in Guantanamo Bay. That issue may yet be litigated. Or it may not, depending on whether Congress acts to endorse the President’s detention of those aliens in Guantanamo.

This is a smart move strategically (less so, from a principled point of view). It may be the last piece in the Bush Administration’s retreat from its more aggressive legal positions in the conduct of the war on terrorism. If Congress acts on McCain-Graham, the Bush Administration may yet avoid final court battles on all of its positions. We’ll see.

Creighton University School of Law has recently been awarded a $750,000 U.S. government grant to create a “a working model to establish a bilateral U.S.-Cuba property claims tribunal.” The goal is to have this model in place, along with others, for eventual use to ease Cuba’s post-Castro transition to democracy.

The grant to Creighton has already been the subject of some snarky comments in the Washington Post, pointing out that the grant to the Omaha, Nebraska school was awarded by a U.S. government official who graduated from Creighton. One wonders how the folks at the University of Miami Law School are feeling today, for instance. The grant calls for

a two-year factual/claims investigation, extensive multi-level legal analysis, significant field work in the U.S., Europe, Latin America and the Caribbean and legitimacy modeling on sophisticated social science computer software.

I admit that I’m a bit jealous that I didn’t get such a cool grant. Still, you don’t have to be churlish to wonder how some hypothetical future Cuban government will feel when the U.S. shows up at the bargaining table with a model tribunal and, perhaps, prior legal analysis and factual investigation of disputes that the hypothetical future tribunal will settle.

One might also wonder why it is worth creating a model for a bilateral claims tribunal when this is arguably the one kind of international tribunal the U.S. over which has extensive technical expertise and historical experience. Claims from the U.S. Revolutionary War were settled by an international claims commission, as were claims from the Mexican-American War and the Iran Hostage Crisis. It is a bit surprising that there is $750,000 worth of research on this process. I suppose “legitimacy modeling” software is very expensive.

“The real complaining party at your bar is Civilization. In all our countries it is still a struggling and imperfect thing. It does not plead that the United States, or any other country, has been blameless of the conditions which made the German people easy victims to the blandishments and intimidations of the Nazi conspirators.

But it points to the dreadful sequence of aggressions and crimes I have recited, it points to the weariness of flesh, the exhaustion of resources, and the destruction of all that was beautiful or useful in so much of the world, and to greater potentialities for destruction in the days to come. It is not necessary among the ruins of this ancient and beautiful city with untold members of its civilian inhabitants still buried in its rubble, to argue the proposition that to start or wage an aggressive war has the moral qualities of the worst of crimes. The refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.

Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your juridical action will put the forces of international law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will, in all countries, may have “leave to live by no man’s leave, underneath the law.”

The full text of the speech is here. More on the Nuremberg Trials is available through Yale Law School’s Avalon Project here.

This hilarious video of two Chinese students lip-syncing the Backstreet Boys reminds me for the zillionth time how technology and globalization is changing China in ways we can’t even imagine. President Bush, currently in Beijing, might want to take notice. Of course, the real value of this video is not its social-political significance. It’s just downright hilarious and should be an instant classic.

Thanks to Roger for pointing out this interesting poll. Here’s another tidbit. The U.N.’s favorability rating among the general public continues to fall rather dramatically and pretty widely among all demographic groups, even as public support for the war in Iraq continues toi fall. Here is an excerpt from the report’s section on the U.N.

The public’s view of the United Nations has soured since March, continuing a slide that has been relatively steady over the last few years. In March, 59% held a favorable opinion of the U.N.; today just under half (48%) have a positive view. The decline has been steepest among groups that had been some of the U.N.’s strongest supporters, including Democrats (now at 58% favorable, down 17 points since March), blacks (49%, down 20 points), and those with household incomes below $20,000 (48%, down 19 points).

Of course, this doesn’t reveal whether the fall in support is due to the U.N.’s internal problems or its failure to more effectively constrain the U.S., or some other problem. But still, this is an interesting and potentially important trend.

“The public, on balance, believes cases of U.S. prisoner mistreatment in Iraq and Guantanamo Bay were mostly the result of misconduct by American soldiers rather than the consequence of official policies. Opinion leaders are divided, with solid majorities in five of eight groups saying that the prison abuse scandal was the result of official policies.”