Archive for
January, 2006

One Final Alito Post (Really)

by Julian Ku

As Roger noted a couple of weeks ago, my colleague Nora Demleitner testified on behalf of newly-confirmed Justice Samuel Alito during his confirmation hearings. Nora, a criminal and immigration law expert and a former Alito clerk, has suggested that Alito will be quite progressive on certain immigration law-related issues. Here are some of her further thoughts on Alito’s decision in the Fatin case, which involved a political asylum claim based on fear of gender-based persecution. Her analysis provides a bit more insight into Justice Alito’s thinking about immigration but also on treaty interpretation. It will be interesting to see how this plays out in the next few years.

Why has the Fatin case featured so little in the discussion?

One reason is that it fits poorly into the ideological picture painted of Judge Alito. This is a very progressive opinion on gender-based asylum. In whose interest would it be to discuss it??? Republicans have barely used the case since it wouldn’t play too well with their base, and Democrats have narrowly focused on its holding rather than the overall framework it develops. Ultimately, the panel opinion denied Ms. Fatin her asylum claim since she couldn’t make out a case under the framework Judge Alito developed. In written questions to the Judge, Senator Durbin focused particularly on that point, without acknowledging any of the rationale on which the decision is based.

What did the Fatin case do?

Ms. Fatin was an Iranian asylum-seeker who based her asylum claim, among others, on the argument that she holds Western feminist thoughts that would be unpalatable to Ayatollah Khomeini’s regime. Ms. Fatin claimed asylum based on her political opinion and her membership in a social group. The latter phrase was never defined in the Refugee Convention, and Congress didn’t define it either when it enacted the Refugee Convention into the INA.
Based on BIA decisions, Judge Alito outlined different membership groups based on which Ms. Fatin could possibly claim asylum. He recognized gender itself as a social group. If gender were a social group, it would no longer be necessary to add it as a distinct asylum ground, as many commentators have demanded. However, in most cases women aren’t persecuted solely because they are women. Usually they share some other characteristic, e.g., membership in a minority religion or ethnic group.

Ms. Fatin could not show that the Khomeini government would persecute her based on her gender alone. In fact, she claimed to belong to a narrower group: “‘Iranian women who refuse to conform to the government’s gender-specific laws and social norms.’” The problem with the weak lower court record in this case was that Ms. Fatin had never indicated that she would actually refuse to conform to such laws. Therefore, Judge Alito developed a third membership group: “Iranian women who find their country’s gender-specific laws offensive and do not wish to comply with them.” He found there to be an insufficient showing of persecution as Ms. Fatin hadn’t indicated that compliance with gender-specific laws was so abhorrent to her that it could be called persecution.

Some commentators have argued that Judge Alito set the bar too high, that he would never require such a showing in cases of religious persecution. While that may be true, the issue may be with the category – social group — and the implicit assumptions about it. Judge Alito’s opinion, published in 1993, long before Kasinga, was surprisingly liberal and progressive. It was written by a judge who tried to make the best he could of the lower court record which didn’t give him much to work with. Maybe you can call that judicial activism – but it’s not the type of activism liberals (including myself) usually complain about.

Also note that Judge Alito got a Nixon appointee to sign on to his opinion as well as one of the most respected and thoughtful district court judges in the country, Judge Pollack. One wonders what that may mean for his coalition building on the Court.

It’s Official: Antarctica Is (Not) a Foreign Country

by Roger Alford

If you earn income on a research expedition in Antarctica, can you claim a tax exemption for foreign earned income? The tax regulations allow an exclusion from gross income for any foreign earned income, but the latter term is defined as residency for a qualified period in a “foreign country.”

The United States Tax Court ruled this week in Arnett v. United States that Antarctica is not a foreign country and therefore income earned there is fully taxable. “The term “foreign country” when used in a geographical sense includes any territory under the sovereignty of a government other than that of the United States…. As Antarctica is not a foreign country for purposes of the Code, we conclude that petitioner is not entitled to exclude the wage income he earned in Antarctica.”

But wait! In 1993 the Supreme Court ruled in Smith v. United States that Antarctica is a foreign country for purposes of the Foreign Tort Claims Act. It seems the FTCA precludes tort claims against the United States if the claim arises in a foreign country. In Smith the spouse of a construction worker sued the United States for wrongful death arising out of a project with the National Science Foundation. The Supreme Court in Smith held “that the FTCA’s waiver of sovereign immunity does not apply to tort claims arising in Antarctica.”

No matter, the Tax Court in Arnett distinguished Smith by noting that that holding applied solely to cases arising under the FTCA.

So I guess the rule is fairly clear: Antarctica is a foreign country if you are suing the United States, but is not a foreign country if the United States is suing you.

Stein on Stein on Supporting Our Troops

by Roger Alford

Joel Stein has a piece in the L.A. Times this week entitled “Warriors and Wusses” that takes to task anyone who supports our troops in Iraq. Here is an excerpt: “I’m not for the war. And being against the war and saying you support the troops is one of the wussiest positions the pacifists have ever taken — and they’re wussy by definition…. [B]laming the president is a little too easy. The truth is that people who pull triggers are ultimately responsible, whether they’re following orders or not…. I’m not advocating that we spit on returning veterans like they did after the Vietnam War, but we shouldn’t be celebrating people for doing something we don’t think was a good idea. All I’m asking is that we give our returning soldiers what they need: hospitals, pensions, mental health and a safe, immediate return. But, please, no parades.”

Ben Stein has responded with this piece in the American Spectator entitled “Saints in Armor.” Here is an excerpt: “The most heroic, ethically courageous, morally resolute men and women in the world today are the Americans, British, and other forces fighting in Iraq and Afghanistan. They are fighting the most evil men and women currently on the world scene…. The men and women who wear the uniform fought, bled, and died to rid the world of the most dangerous man on the planet in the most flammable place on the planet…. Do I support men and women who are fighting Nazis who call themselves insurgents or Islamic militants? … I support them, pray for them, am humbled just to be on the same planet with them.”

It seems Joel Stein and Ben Stein represent opposite extremes of possible attitudes about the war in Iraq and support for our troops fighting there. I would be curious what our readers’ perspectives are. Scroll down and vote.

When It Comes to the War in Iraq and Supporting Our Troops:
I’m With Joel Stein: Oppose The War and Tolerate Our Troops
I’m With Neither: Oppose The War but Support Our Troops
I’m With Ben Stein: Support The War and Support Our Troops


Free polls from Pollhost.com

Treaties, Private Rights of Action, and Comity: An Internationalist Critique

by Julian Ku

The Supreme Court is poised to decide one of the most important cases involving the enforceability of treaties in the last few decades (indeed, maybe the last century). In Sanchez-Llamas v. Oregon, the Supreme Court will consider whether the Vienna Convention on Consular Relations gives such aliens the private rights of action as well as the remedy of suppression for any evidence gathered against them in violation of their treaty rights.

Professor Paul Stephan of UVA Law, joined by eight other law professors (including me), has filed an amicus brief in support of the respondent state governments. I can’t really do the arguments justice here. Suffice to say they offer a unique and often overlooked point of view. When a court aggressively interprets treaties to incorporate international court judgments and to create wide-ranging domestic rights, the court may actualy be discouraging U.S. participation in treaty systems and in international dispute resolution.

The brief has three main arguments, which I paraphrase below:

(1) The VCCR does not create a private right of action. There is no evidence that the drafters of the treaty intended for the treaty to create a private right of action, and the President’s interpretation warrants substantial deference. Most importantly, the Court should avoid finding a private right of action in a treaty unless it is plainly expressed in the text of the treaty, especially since overbroad interpretations of treaties will discourage future U.S. participation in treaty regimes.

(2) Neither comity nor a policy of uniform treaty interpretation compels this Court to regard the Vienna Convention as creating a private right of enforcement. The International Court of Justice, the only tribunal that has reached such a conclusion, is not a national court but an international agency with clearly delimited authority. It lacks the characteristics of a domestic agency that invite judicial deference.

(3) Finally, a decision that the Vienna Convention authorizes private enforcement will disrupt rather than promote uniform treaty interpretation, as no other state has reached such a conclusion.

Avian Flu and Traveling Greenbacks

by Roger Alford

Ever wonder how disease spreads? Apparently not unlike the way currency travels. As reported here and here, scientists are modeling the anticipated spread of the Avian Flu based on how currency changes hands. On this website you can track the movement of money in your pocket. For example, this particular dollar has travelled 4,191 Miles in 3 Yrs, 12 Days, 17 Hrs, 25 Mins at an average of 3.8 Miles per day.

As noted in this AP story, “By analyzing the movement of money – and human travel – over different distances, the scientists found that the money followed a predictable pattern. The method could be used to create more realistic disease models that track the spread of germs and perhaps prevent outbreaks.” As Conglomerate put it, “Somehow, I feel the need to go wash my hands.”

The Hamas Party Platform

by Roger Alford

There is substantial commentary on the Internet and in mainstream media that is expressing cautious optimism about Hamas’ victory in Palestine. The essence of these sentiments is that Hamas in power will not be the same as Hamas in opposition. I hope they are right.

Before expressing optimism about what might be, let’s look at what is. As the New York Times rightly suggests this weekend, the Hamas party platform, articulated in the 1988 Hamas Charter, provides a useful prism to understand the mentality of Hamas (a.k.a. The Islamic Resistance Movement). Just read the Hamas Charter and it will leave you utterly depressed about the prospects for Middle East peace.

Here are some of the lowpoints:

  • Hamas is an arm of the Muslim Brotherhood (Art. 2);
  • Hamas’ goal is Jihad and the death of Jews (Art. 7);
  • Jihad is the path of Hamas, and death for Allah its most sublime belief (Art. 8);
  • The land of Palestine is an Islamic inheritance (Art. 11);
  • All Muslims are duty-bound to commit Jihad against Israel (Art. 12);
  • Peace is not an option (Art. 13);
  • Muslims everywhere are duty-bound to liberate Palestine (Art. 14);
  • Muslims must study the enemy, looking for weak spots (Art. 16);
  • Western culture is a Zionist plot to distance women from Islam (Art. 17)
  • Women must train their children to become Jihad fighters (Art. 18);
  • Enemies rule the world through intermediaries such as the United Nations (Art. 22);
  • The PLO is too secular (Art. 27);
  • All Arab states must support Jihad (Art. 28);
  • All Muslim leaders must support Jihad (Art. 30);
  • Hamas cares about human rights and religious toleration, provided all other religions live in the shadow of Islam (Art. 31);
  • Peace accords are treacherous schemes of Zionists (Art. 32);
  • Jihad will not end until liberation is complete (Art. 33); and
  • Palestine is the navel of the earth and Jihad is our answer to the Christian Crusades (Art. 34).

Excerpts of these articles are below:

Art. 2 The Link Between Hamas and the Association of Muslim Brothers

The Islamic Resistance Movement is one of the wings of the Muslim Brothers in Palestine. The Muslim Brotherhood Movement is a world organization, the largest Islamic Movement in the modern era. It is characterized by a profound understanding, by precise notions and by a complete comprehensiveness of all concepts of Islam in all domains of life: views and beliefs, politics and economics, education and society, jurisprudence and rule, indoctrination and teaching, the arts and publications, the hidden and the evident, and all the other domains of life.

Art. 7. The Universality of Hamas

Hamas is one of the links in the Chain of Jihad in the confrontation with the Zionist invasion…. But even if the links have become distant from each other, and even if the obstacles erected by those who revolve in the Zionist orbit, aiming at obstructing the road before the Jihad fighters, have rendered the pursuance of Jihad impossible; nevertheless, the Hamas has been looking forward to implement Allah’s promise whatever time it might take. The prophet, prayer and peace be upon him, said: “The time will not come until Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: O Muslim! there is a Jew hiding behind me, come on and kill him!”

Art. 8. The Slogan of the Hamas

Allah is its goal, the Prophet its model, the Qur’an its Constitution, Jihad its path and death for the case of Allah its most sublime belief.

Art. 11. … Palestine is an Islamic Waqf

The Islamic Resistance Movement believes that the land of Palestine has been an Islamic Waqf [inheritance] throughout the generations and until the Day of Resurrection, no one can renounce it or part of it, or abandon it or part of it….

Art. 12. Hamas in Palestine: Its View on Homeland and Nationalism

Hamas regards Nationalism … as part and parcel of the religious faith. Nothing is loftier or deeper in Nationalism than waging Jihad against the enemy and confronting him when he sets foot on the land of the Muslims. And this becomes an individual duty binding on every Muslim man and woman; a woman must go out and fight the enemy even without her husband’s authorization, and a slave without his masters’ permission. This [principle] does not exist under any other regime, and it is a truth not to be questioned….

Art. 13. Peaceful Solutions…

[Peace] initiatives, the so-called peaceful solutions, and the international conferences to resolve the Palestinian problem, are all contrary to the beliefs of the Islamic Resistance Movement. For renouncing any part of Palestine means renouncing part of the religion… From time to time a clamoring is voiced, to hold an International Conference in search for a solution to the problem…. Those conferences are no more than a means to appoint the nonbelievers as arbitrators in the lands of Islam. Since when did the Unbelievers do justice to the Believers?… There is no solution to the Palestinian problem except by Jihad….

Art. 14. The Three Circles

…Palestine is an Islamic land where the First Qibla and the third holiest site are located. That is also the place whence the Prophet … ascended to heavens… In consequence of this state of affairs, the liberation of that land is an individual duty binding on all Muslims everywhere.

Art. 16. … Jihad for … Palestine is an Individual Obligation [cont’d]

… It is … necessary to study conscientiously the enemy and its material and human potential; to detect its weak and strong spots, and to recognize the powers that support it and stand by it. …

Art. 17. The Role of Muslim Women

… The enemies … realize that if they can guide and educate [the Muslim women] in a way that would distance them from Islam, they would have won that war. Therefore, you can see them making consistent efforts [in that direction] by way of publicity and movies, curricula of education and culture, using as their intermediaries their craftsmen who are part of the various Zionist Organizations which take on all sorts of names and shapes such as: the Freemasons, Rotary Clubs, gangs of spies and the like. All of them are nests of saboteurs and sabotage. Those Zionist organizations control vast material resources, which enable them to fulfill their mission amidst societies, with a view of implementing Zionist goals and sowing the concepts that can be of use to the enemy. Those organizations operate [in a situation] where Islam is absent from the arena and alienated from its people. Thus, the Muslims must fulfill their duty in confronting the schemes of those saboteurs. When Islam will retake possession of [the means to] guide the life [of the Muslims], it will wipe out those organizations which are the enemy of humanity and Islam.

Art. 18. The Role of Muslim Women [cont’d]

The women in the house and the family of Jihad fighters, whether they are mothers or sisters, carry out the most important duty of caring for the home and raising the children upon the moral concepts and values which derive from Islam; and of educating their sons to observe the religious injunctions in preparation for the duty of Jihad awaiting them.

Art. 22. The Powers Which Support the Enemy

The enemies have been scheming for a long time, and they have consolidated their schemes, in order to achieve what they have achieved. They took advantage of key elements in unfolding events, and accumulated a huge and influential material wealth which they put to the service of implementing their dream…. They collected material gains and took control of many sources of wealth. They obtained the Balfour Declaration and established the League of Nations in order to rule the world by means of that organization…. They inspired the establishment of the United Nations and the Security Council to replace the League of Nations, in order to rule the world by their intermediary.

Art. 27. The Palestinian Liberation Organization

… [T]he PLO has adopted the idea of a Secular State, and so we think of it. Secular thought is diametrically opposed to religious thought. Thought is the basis for positions, for modes of conduct and for resolutions. Therefore, in spite of our appreciation for the PLO … we cannot substitute it for the Islamic nature of Palestine by adopting secular thought…. When the PLO adopts Islam as the guideline for life, then we shall become its soldiers, the fuel of its fire which will burn the enemies….

Art. 28. The Palestinian Liberation Organization [cont’d]

… The Arab states surrounding Israel are required to open their borders to the Jihad fighters, the sons of the Arab and Islamic peoples, to enable them to play their role and to join their efforts to those of their brothers among the Muslim Brothers in Palestine. The other Arab and Islamic states are required, at the very least, to facilitate the movement of the Jihad fighters from and to them….

Art. 30. National and Religious Associations…

Men of letters, members of the intelligentsia, media people, preachers, teachers and educators and all different sectors in the Arab and Islamic world, are all called upon to play their role and to carry out their duty in view of the wickedness of the Zionist invasion… Jihad means not only carrying arms and denigrating the enemies. Uttering positive words, writing good articles and useful books, and lending support and assistance, all that too is Jihad

Art. 31. The Members of Other Religions…

Hamas is a humane movement, which cares for human rights and is committed to the tolerance inherent in Islam as regards attitudes towards other religions. It is only hostile to those who are hostile towards it, or stand in its way in order to disturb its moves or to frustrate its efforts. Under the shadow of Islam it is possible for the members of the three religions: Islam, Christianity and Judaism to coexist in safety and security. Safety and security can only prevail under the shadow of Islam…

Art. 32. The Attempts to Isolate the Palestinian People

World Zionism and Imperialist forces have been attempting, with smart moves and considered planning, to push the Arab countries, one after another, out of the circle of conflict with Zionism, in order, ultimately, to isolate the Palestinian People. Egypt has already been cast out of the conflict, to a very great extent through the treacherous Camp David Accords, and she has been trying to drag other countries into similar agreements in order to push them out of the circle of conflict. Hamas is calling upon the Arab and Islamic peoples to act seriously and tirelessly in order to frustrate that dreadful scheme and to make the masses aware of the danger of coping out of the circle of struggle with Zionism. Today it is Palestine and tomorrow it may be another country or other countries. For Zionist scheming has no end, and after Palestine they will covet expansion from the Nile to the Euphrates. Only when they have completed digesting the area on which they will have laid their hand, they will look forward to more expansion, etc. Their scheme has been laid out in the Protocols of the Elders of Zion…

Art. 33. The Attempts to Isolate the Palestinian People [cont’d]

… [I]n accordance with Allah’s will, its supporters and partisans who extend assistance to it and provide it with reinforcement after reinforcement, until the Decree of Allah is fulfilled, the ranks are over-swollen, Jihad fighters join other Jihad fighters, and all this accumulation sets out from everywhere in the Islamic world, obeying the call of duty, and intoning “Come on, join Jihad!” This call will tear apart the clouds in the skies and it will continue to ring until liberation is completed, the invaders are vanquished and Allah’s victory sets in.

Art. 34. Confronting Aggressors Throughout History

Palestine is the navel of earth, the convergence of continents, the object of greed for the greedy, since the dawn of history…. Multitudes of Crusades descended on it, carrying their faith with them and waving their Cross…. This is the only way to liberation, there is no doubt in the testimony of history. That is one of the rules of the universe and one of the laws of existence. Only iron can blunt iron, only the true faith of Islam can vanquish their false and falsified faith.

KAFTA: The Next Big Free Trade Agreement

by Julian Ku

The Washington Post reports that the U.S. and South Korea will likely announce the opening of talks to sign a comprehensive free trade agreement. For the U.S, such an agreement would represent the most economically significant free trade agreement since the implementation of NAFTA in 1994.

As Roger has noted, the U.S. free trade strategy under President Bush has been to negotiate bilateral free-trade agreements with the most important U.S. trading partners (Singapore, Australia, Chile, Central America, etc). From a free trade perspective, this is better than nothing, but many trade scholars prefer worldwide free trade schemes to these regional or bilateral pacts.

One interesting question for the U.S. and South Korea is whether the two parties will include a dispute resolution system as aggressive and comprehensive as NAFTA (so aggressive that it has sparked this lawsuit challenging its constitutionality). That seems unlikely, largely because it seems unnecessary, but something to keep an eye on.

Jack Goldsmith at OLC

by Roger Alford

Having personally known and admired Jack Goldsmith for years, I always suspected that there was more than meets the eye in his very short-lived tenure at the Office of Legal Counsel. We now have one public version of what transpired with Goldsmith at OLC in a Newsweek article entitled “Palace Revolt.” The story appears to be based almost totally on anonymous sources and key players–including John Ashcroft, David Addington, Jack Goldsmith, James Comey, Daniel Levin, and Patrick Philbin–all refused to comment. So it is difficult to know how accurate it really is. But it is worth reading the whole thing. It certainly puts Goldsmith in a favorable light. Hat tip Volokh.

Planning for the Next Oil Crisis

by Chris Borgen

Fortune Magazine reports about a session at the Davos World Economic Forum on scenarios for possible oil crises in the near future. Bill Browder of Hermitage Capital and George Soros led the session. Soros was particulalry concerned that U.S. over-reach in Iraq would further embolden countries such as Iran that want to overturn the current order. While the hegemon’s away, the rogues will play.

Browder, for his part, set out a series of scenarios:

To come up with some likely scenarios in the event of an international crisis, [Browder’s] team performed what’s known as a regression analysis, extrapolating the numbers from past oil shocks and then using them to calculate what might happen when the supply from an oil-producing country was cut off in six different situations. The fall of the House of Saud seems the most far-fetched of the six possibilities, and it’s the one that generates that $262 a barrel.

More realistic — and therefore more chilling — would be the scenario where Iran declares an oil embargo a la OPEC in 1973, which Browder thinks could cause oil to double to $131 a barrel. Other outcomes include an embargo by Venezuelan strongman Hugo Chavez ($111 a barrel), civil war in Nigeria ($98 a barrel), unrest and violence in Algeria ($79 a barrel) and major attacks on infrastructure by the insurgency in Iraq ($88 a barrel).

Regressions analysis may be mathematical but it’s an art, not a science. And some of these scenarios are quite dubious, like Venezuela shutting the spigot.

Although all admit that none of these scenarios is especially likely, it is important to nonetheless plan in case any of these events occur. Unfortunately, forward planning has not proven to be one of the current administration’s strong points.

ICJ Watch: (Slowly) Clearing the Decks, but More Cases Coming

by Julian Ku

Next week will be a busy one at the ICJ.

First, the ICJ will release its jurisdictional judgment in the case brought by Congo against Rwanda on Friday, February 3. Congo filed the case back 2002 alleging that Rwanda violated a variety of international human rights treaties by carrying out armed attacks in Congo during the height of the Congo civil war in the 1990s. This case seems like a sure loser for Congo, on jurisdictional grounds, but we’ll see. In any event, the ICJ did not exactly place this case on its front-burner. After the initial set of hearings on provisional measures, the ICJ ordered briefing on jurisdiction to be completed by May 2003. The parties complied, and the ICJ then waited over two years before holding oral hearings. In other words, Congo will probably have litigated for almost four years to simply get a judgment on whether the ICJ has jurisdiction.

Second, Argentina has announced it will file an application in the ICJ against Uruguay arguing that Uruguay has violated certain treaties by building pulp mills that discharge waste into the river that separates the two countries. No formal application is posted yet, but it seems like it should happen any day now and may result in a useful solution to a potentially nasty border dispute.

Third, the United Kingdom may be facing an application from Cyprus alleging the UK has failed in its treaty commitments as the “guarantor power” to protect Cyprus from Turkish incursions.

The ICJ docket is hardly full, but given it takes the ICJ years to issue jurisdictional judgments, I wouldn’t expect any resolution to these cases anytime soon.

Seth Weinberger’s New International Politics Blog: Security Dilemmas

by Peggy McGuinness

Our past guest blogger Professor Seth Weinberger liked blogging so much that he started his own. Security Dilemmas, already a terrific addition to the blogosphere, will focus on “issues of international and national security, international politics, and international law (and anything else I want to write about).” Check out Seth’s posts on Hamas and the Palestinian elections here and here.

Welcome!

Happy Days in Davos

by Roger Alford

The World Economic Forum at Davos, Switzerland has to be one of the most fascinating events on the planet. Apart from the fact that it is in Davos, Switzerland (one of the most beautiful ski resorts in the world, and I speak from personal experience), it is filled to the brim with an amazing line-up of guests and speakers. A parade of glamor, power, fame, and fortune. Where else do you find leading politicians, academics, trade unionists, business leaders, pop stars, NGOs, all gathered together to discuss (not solve) the problems of the world? The assumption is if you are there, you’ve already arrived. “The great thing about Davos is this assumption that you must be interesting, just because you are here.” OK, I guess that means that the rest of us might be interesting, but no promises. For more on who goes to Davos and what they do there, see here.
The agenda for this year “The Creative Imperative” and here is a list of discussion topics. Short summary of the topics: (1) Bill Gates has another half-billion to spare; (2) There is no energy crisis; (3) Africa needs Western farmers; (4) Annan offers more blather about UN reform; (5) Disaster preparedness is important; (6) The U.S. consumer is weak; (7) The Arab world is backward; (8) China is hungry; and (9) Europe is lazy.

The happy news is that the good and great at Davos have opened their doors for session summaries, webcasting and now… live-blogging. All of this is quite a remarkable development given that the events are supposed to be not-for-attribution. If you visit here, there is a short blog summary of the discussion at various events. One of my favorite anecdotes is this:

At today’s session on global challenges, an invited speaker told us a candy story: While in an African country, he took a bag of candies to the street and distributed them to kids there. The bag went empty soon. He went back to the hotel and brought more. As the candy news had gone around, this time a crowd of excited kids rushed to him, kicking and pushing one another. Then a woman came to him, asking to help distribute candies. He gave her a bag, but she just grabbed and ran away. He asked why and the woman’s reply was she wanted to sell the candies in exchange for something productive. The speaker’s conclusion: the current western aid policy for Africa is seriously flawed. Aid agencies sometimes do not understand how to give aids, corruption occurs in the process, and the way that aids are given may not be truly productive.

Oh really? Good thing we went all the way to Davos to learn that foreign aid needs reform. Well, at least the good and great are gathered together to earnestly listen to such truisms. And if the world’s glitterati is listening together, it must be important.

What do Nicole Kidman and Angelina Jolie do as UN Goodwill Ambassadors?

by Peggy McGuinness

Today’s big news in the narrow category of “celebrities and international law” is that Nicole Kidman has been named a UN goodwill ambassador. The UN Development Fund for Women, to whose work Kidman will be lending her celebrity, issued this press release:

As UNIFEM Goodwill Ambassador, her efforts will be geared toward raising awareness on the infringement of women’s human rights around the world. A particular focus will lie on putting a spotlight on violence against women, probably the most pervasive human rights violation that affects as many as one in three women. Nicole Kidman will visit initiatives supported by UNIFEM to increase visibility for the efforts underway to end gender-based violence.


Kidman is already familiar with the work of UN agencies, having served as UNICEF’s ambassador to Australia for several years. And she played the role of UN interpreter in last year’s aptly named “The Intepreter.”

But what exactly is a “goodwill ambassador?” They are not at all ambassadors in the strict sense of the word. No special diplomatic status or accoutrements attend the position. They are there for photo-ops, fundraising appeals, and awareness raising. This can involve serious work in less-than-plush settings. Even among these celebrity ambassadors of goodwill, there is a hierarchy. At the top are the handful of goodwill ambassadors recruited to represent the whole of the UN organization. This BBC article from 2000 explains the history:

The UN first hit on the idea of celebrity ambassadors in the 1950s, when Hollywood and Broadway star Danny Kaye was taken on to promote children’s rights. He worked tirelessly throughout that year and subsequent decades. It was his success that led to the use of stars, like Sir Peter Ustinov and Audrey Hepburn, on a regular basis.

The current set of celebrities is led by a top flight of seven, called “Messengers of Peace”, of which Michael Douglas is one. Others include boxing legend Muhammad Ali, basketball star Magic Johnson and opera singer Luciano Pavarotti. These are personally recruited by UN Secretary-General Kofi Annan. They must have a largely unblemished reputation, a proven interest in humanitarian issues and fame on a global scale. The seven are expected to work hard – on a voluntary basis – to help focus attention on the work of the UN in general.

In addition to the “top-level”ambassadorss selected by the SecGen are those recruited to represent a particular UN agency, as with Ms. Kidman (and Angelina Jolie, who has served as a goodwill ambassador for UNHCR), or a project. The UN appoints a lot of them, not all of them household names in this country. But each must have some level of fame andcelebrityy to lend to the program. This list of UNICEF goodwill ambassadors has a few big US and UK celebrity names. But see how many of the celebrities on this list from UNESCO you recognize.

Kidman deserves some credit for lending her name and time to something that the celebrity touch can help publicize. And she has some humility about it: “I don’t pretend to be an expert on the issues that UNIFEM addresses. But I’m here to learn and lend support to help make visible the very real and immediate problems and the successful strategies that UNIFEM and the women they support work on everyday.”

The Tree of Democracy From the Stump of Terror

by Roger Alford

“They underestimate the power and appeal of freedom. We’ve heard it suggested that … democracy must be on shaky ground because [ethnic parties] are arguing with each other. But that’s the essence of democracy: making your case, debating with those who you disagree — who disagree, building consensus by persuasion, and answering to the will of the people. We’ve heard it said that the [parties] are too divided to form a lasting democracy. In fact, democratic federalism is the best hope for unifying a diverse population, because a federal constitutional system respects the rights and religious traditions of all citizens, while giving all minorities, … a stake and a voice in the future of their country. It is true that the seeds of freedom have only recently been planted … — but democracy, when it grows, is not a fragile flower; it is a healthy, sturdy tree.”

President Bush

Of course, when Bush uttered these words last October he was talking about Iraq. But as discussed here, the great hallmark of Bush’ second term may well be the global march of democracy. Trouble is, that march is taking some surprising turns, as is evident in Hamas’ stunning victory yesterday.

Who would have expected a seedling of democracy would grow from the stump of Islamic fundamentalism and terror? We are witnessing the emergence of democratic Islamic fundamentalism. It is now a fragile flower. It may soon grow to be a sturdy, but most unhealthy tree. The new cedar of Lebanon.

The Opportunistic Genocide of Darfur

by Roger Alford

Nicholas Kristof of the New York Times has an important essay in the New York Review of Books on what he describes as the “opportunistic” genocide of Darfur. Having just returned from Sudan, he paints an utterly depressing picture:
“In my years as a journalist, I thought I had seen a full kaleidoscope of horrors, from babies dying of malaria to Chinese troops shooting students to Indonesian mobs beheading people. But nothing prepared me for Darfur, where systematic murder, rape, and mutilation are taking place on a vast scale, based simply on the tribe of the victim. What I saw reminded me why people say that genocide is the worst evil of which human beings are capable.”
This essay follows on the heels of numerous other recent reports on the situation in Sudan: (1) HRW’s annual report last week reporting that “In 2005, indiscriminate and targeted killings, rape, forced displacement, and looting of civilians … at the hands of government-backed militias or ‘Janjaweed'”; (2) Parade magazine’s identification this week of Omar al-Bashir as the world’s worst dictator; (3) Amnesty’s report yesterday of dozens of national and international human rights activitists detained and harassed by the Sudanese government; and (4) first-hand, uncensored accounts of the human rights situation from aid worker and blogger at Sleepless in Sudan.
So what can be done? Sleepless in Sudan has these micro-suggestions. Kristoff in his essay offers sharp criticism of virtually everyone: the United States, the European Union, the United Nations, Russia, China, even mainstream media. Kristoff offers a few macro-suggestions, including a stronger military presence (preferably the U.N. or NATO), a stronger expression of moral outrage, and a general effort to raise the cost of what he describes as a strictly opportunistic genocide. “Sudan’s leaders are not Taliban-style extremists. They are ruthless opportunists, and they adopted a strategy of genocide because it seemed to be the simplest method available. If the US and the UN raise the cost of genocide, they will adopt an alternative response, such as negotiating a peace settlement. Indeed, whenever the international community has mustered some outrage about Darfur, then the level of killings and rapes subsides.”

Australia and New Zealand Settle Maritime Boundaries: A Model for China and Japan

by Julian Ku

A treaty demarcating undersea maritime boundaries between Australia and New Zealand came into effect today with pretty much no fanfare. The “Treaty between the Government of Australia and the Government of New Zealand establishing certain Exclusive Economic Zone and Continental Shelf Boundaries” was the product of five years of Australia-NZ negotiations. Such negotiations are required by the UN Convention on the Law of The Sea, which sets out general guidelines for the allocation of maritime boundaries, but leaves it to individual countries to negotiate particular boundaries.

As I’ve noted here before, China and Japan are locked in a much more hotly-contested negotiation over maritime boundaries in the South China Sea. The stakes there appear to be higher because of known underground reserves of natural resources there and the likelihood of a friendly settlement is much lower because, well, let’s be honest, there is not a whole lot of love between the two countries.

It is still nice to see how smoothly such negotiations can go. Perhaps the Chinese and Japanese can get Aussie and Kiwi mediators?

Lower Courts and Reliance on Foreign Authority

by Roger Alford

One of the issues rarely addressed in the debate on reliance on foreign authority to interpret constitutional guarantees is what attitude lower courts should take with respect to the question. As most scholars know, the Missouri Supreme Court in Roper v. Simmons relied on foreign authority in flagrantly departing from Supreme Court precedent in Stanford to hold that the juvenile death penalty was cruel and unusual punishment. That approach led to a “no comment” from the Supreme Court in Roper, but a sharp rebuke from Justice Scalia. In dissent Justice Scalia noted: To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always held that ‘it is this Court’s prerogative alone to overrule one of its precedents.’… Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent.”

Last week the Ninth Circuit in Allen v. Ornoski was faced with a death penalty claim by Clarence Ray Allen, an inmate in his seventies who has been on death row for over twenty years. He argued, among other things, “that execution of an elderly person does not comport with ‘evolving standards of decency,’ in that the execution ‘offends humanity,’ provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international law.” The Ninth Circuit, per Clinton-appointee Judge Wardlaw, rejected the international argument out of hand: “While international norms may also be instructive in this analysis, in light of the nonexistence of domestic authority supporting Allen’s claim, and the lack of definitive international authority provided by Allen, we, as an intermediate court, decline to consider the asserted practices of foreign jurisdictions.”

Allen suggests that lower courts should be more cautious than the Supreme Court in relying on foreign authority, particularly where that authority is not clear and definitive. I am not aware of any empirical studies analyzing how lower courts have handled the question of reliance on foreign authority in constitutional adjudication. It would be worth the time to make such inquiries. Nor am I aware of other lower courts that have expressed the need for greater caution on this question. But I can appreciate the concern because obviously adherence to and departure from precedent is of greater moment for lower courts than the Supreme Court.

Is the UN Becoming More Like the Pentagon?

by Peggy McGuinness

This week’s news of cost overruns and corruption in the UN Peacekeeping office have a familiar ring. Earlier this week, eight UN officials involved in procurement in the peacekeeping division were placed on administrative leave, and the draft of a forthcoming report on fraud and mismanagement estimates that over $298 million may be lost or unaccounted for as a result of irregularities in the peacekeeping offices. The FT reports:

The unofficial report, seen by the Financial Times, paints a damning picture of poor or bypassed financial controls, insufficient oversight by senior management, as well as a revolving door of employment between UN procurement staff, and the private companies whose services the UN hires.

The scale and allegedly systematic nature of wrongdoing has raised fears of a scandal as large if not larger than the Iraqi oil-for-food programme affair, which may hit even closer to UN headquarters.

The $298m figure, almost a third of the $1bn of contracts examined, was removed from a subsequent final document, as were references to named companies and officials. UN member states will be officially sent the final version.

Christopher Burnham, the UN’s head of management, acknowledged on Monday that the cost of fraud and mismanagement in peacekeeping procurement could go into the “tens of millions of dollars”, and the figure was likely to rise over coming months.

Of course, similar problems–involving larger sums of money (remember the $9 billion unaccounted for?)– have plagued U.S. reconstruction efforts in Iraq. Today’s NYTimes reports that new findings of the Special Inspector General for Iraq Reconstruction reveal widespread financial mismanagement:

The audit, released yesterday by the office of the Special Inspector General for Iraq Reconstruction, expands on its previous findings of fraud, incompetence and confusion as the American occupation poured money into training and rebuilding programs in 2003 and 2004. The audit uncovers problems in an area that includes half the land mass in Iraq, with new findings in the southern and central provinces of Anbar, Karbala, Najaf, Wasit, Babil, and Qadisiya. The special inspector reports to the secretary of defense and the secretary of state.
Agents from the inspector general’s office found that the living and working quarters of American occupation officials were awash in shrink-wrapped stacks of $100 bills, colloquially known as bricks.


One official kept $2 million in a bathroom safe, another more than half a million dollars in an unlocked footlocker. One contractor received more than $100,000 to completely refurbish an Olympic pool but only polished the pumps; even so, local American officials certified the work as completed. More than 2,000 contracts ranging in value from a few thousand dollars to more than half a million, some $88 million in all, were examined by agents from the inspector general’s office. The report says that in some cases the agents found clear indications of potential fraud and that investigations into those cases are continuing.

Some of those cases are expected to intersect with the investigations of four Americans who have been arrested on bribery, theft, weapons and conspiracy charges for what federal prosecutors say was a scheme to steer reconstruction projects to an American contractor working out of the southern city of Hilla, which served as a kind of provincial capital for a vast swath of Iraq under the Coalition Provisional Authority.

But much of the material in the latest audit is new, and the portrait it paints of abandoned rebuilding projects, nonexistent paperwork and cash routinely taken from the main vault in Hilla without even a log to keep track of the transactions is likely to raise major new questions about how the provisional authority did its business and accounted for huge expenditures of Iraqi and American money.

“What’s sad about it is that, considering the destruction in the country, with looting and so on, we needed every dollar for reconstruction,” said Wayne White, a former State Department official whose responsibilities included Iraq from 2003 to 2005, and who is now at the Middle East Institute, a research organization. Instead, Mr. White said, large amounts of that money may have been wasted or stolen, with strong indications that the chaos in Hilla might have been repeated at other provisional authority outposts.

Others had a similar reaction. “It does not surprise me at all,” said a Defense Department official who worked in Hilla and other parts of the country, who spoke anonymously because he said he feared retribution from the Bush administration. He predicted that similar problems would turn up in the major southern city of Basra and elsewhere in the dangerous desert wasteland of Anbar province. “It’s a disaster,” the official said of problems with contracting in Anbar. No records were kept as money came and went from the main vault at the Hilla compound, and inside it was often stashed haphazardly in a filing cabinet.

The news of widespread financial mismanagement in post-conflict situations, where creation of civil institutions with strong controls on public expenditures is vitally important to successful transitions to stable governance, is particularly troubling. The difference between the UN and US situations is that any mismanagement at the UN — no matter if it is uncovered and punished — may be used by some Member States (particularly the US) as an excuse not to support some necessary programs. US Ambassador John Bolton has already hinted as much. By contrast, mismanagement of US programs is unlikely to affect much of anything, since the Republican-controlled Congress appears disinclined to look to closely at how US taxpayers money has been spent in a war effort it heartily supported. In order for criticism of UN practices to be taken seriously, the US needs to set the best example for the international community. The UN needs better oversight; so, apparently, does the US government.

It all puts me in mind of a memorable, cynical quote from the movie Syriana (which, though a flawed film, has an interesting take on Washington lawyers) about the Foreign Corrupt Practices Act:

Corruption ain’t nothing more than government intrusion into market efficiencies in the form of regulation. That’s Milton Friedman. He got a goddamn Nobel Prize. We have laws against it precisely so we can get away with it. Corruption is our protection. Corruption is what keeps us safe and warm. Corruption is why you and I are prancing around here instead of fighting each other for scraps of meat out in the streets. Corruption is why we win.

Let’s hope not.

Jean-Marie Henckaerts Responds to Ken Anderson on ICRC Customary International Humanitarian Law Study

by Peggy McGuinness

Ken Anderson has posted Jean-Marie Henckaerts’ response to his earlier blog commentary on the International Committee of the Red Cross study on customary international humanitarian law. (See earlier Opinio Juris posts here and here.) Henckaerts, who serves as legal advisor to the ICRC, was one of the co-authors of the study. One of the interesting elements of the response is Henckaerts’ justification (correct, in my view, from a doctrinal perspective) for looking at both what states do when they engage in armed conflict and what they say about how armed conflict should be conducted:

An accurate snapshot of customary IHL does not merely require a description of what parties “actually do in actual wars”. This is so because customary international law is formed by a general practice accepted as law. The latter element is often referred to as “opinio juris”. The requirement of a general practice, combined with evidence that this practice conforms to a legal obligation has two important implications:

1. To the extent that field practice is not official and does not represent the legal conviction of the State concerned, it does not count. This implies, in particular, that if actual practice is generally seen as a violation of existing rules, this practice is not of a nature to modify existing rules. That is why notwithstanding numerous reports of, for example, attacks against civilians, pillage and sexual violence these acts are still prohibited under customary international law. The conclusion that these acts are considered to be violations of existing rules can be derived i.a. from a number of verbal acts, such as legislation, case-law and official statements. These verbal acts are therefore important and have to be considered to get the full and correct picture of customary international law.

2. The opposite is also true. Although States may in practice abstain from engaging in certain behaviour, through their verbal acts, qualifying their abstention as mere policy not based on a legal obligation to abstain, they can reserve their right to engage in those acts in the future. That is why attacks against works and installations containing dangerous forces – although seldom or never resorted to in the last twenty years – would still be considered lawful by States in case they constitute military objectives and sufficient precautions are taken. If mere battlefield behaviour were examined such targets would have to be considered off-limit. The same is true for nuclear weapons: on the basis of a mere consideration of battlefield practice, nuclear weapons would have to be considered unlawful – a position clearly not shared by the nuclear powers. This shows that verbal acts have an important impact on how battlefield practice has to be looked at.

President Bush’s Foreign Policy Speech

by Roger Alford

In case you missed it, President Bush offered a major foreign policy speech yesterday that, among other things, outlined his strategy for the war on terror. It is a long speech that discusses numerous foreign policy issues, but a key component was his summary of the strategy to defeat terrorism: (1) choke off the funding; (2) challenge states that harbor terrorists; and (3) confront threats before they cause harm.

It is, of course, the third prong of his strategy that was a key factor in his decision to invade Iraq, and this third prong will continue to be controversial in the coming years as we face the specter of a nuclear Iran. There will continue to be threats that do not pose imminent harm–such that traditional international law self-defense justifications are triggered–but nonetheless present grave threats to national security.

With news that China and Russia are presently unwilling to even recommend the question of Iran’s nuclear development for referral to the Security Council, we are poised in the coming year for another international crisis without Security Council supervision. The United States and the EU3 (Britain, France, and Germany) may be forced to address the question of Iran in a most unfortunate international legal posture: neither Security Council guidance nor traditional self-defense justifications.

Here is an excerpt of President Bush’s speech, including his strategy on terrorism and his response to a question about Iran:

You can’t run your network without money, and so we’re working with our friends and allies to seize terrorist assets and choke off their funding sources. In other words, what I’m telling you is, we’re using all assets at our disposal to protect you in a different kind of war. In order to make the right decision about how to win this war, it’s important to understand the nature of the enemy and to take the enemy’s word seriously and to understand their lethality and not let the kind of lull in the action lull us to sleep.

Secondly, right after they attacked us, I laid out a doctrine, and it said, if you harbor a terrorist, you’re equally as guilty as the terrorists. The reason I said that is because I understand that a terrorist network can sometimes burrow in society and can sometimes find safe haven from which to plot and plan. The perfect example of that was Afghanistan. For those of you who didn’t pay much attention to the initial stages of this war, it became apparent to the world that Afghanistan became a safe haven. You’ll hear stories about people that went into Afghanistan to be trained — trained as to how to brutally kill people, trained in different methodologies, trained in how to communicate. So in other words, the enemy was able to burrow in, and felt safe and confident and secure. And I understood in this different kind of war that we had to make it clear to any country that if they harbored a terrorist, they would be held to account…. The doctrine still stands: If you harbor a terrorist, you’re equally as guilty as the terrorists who commit murder.

Thirdly –and this is very important for the students to understand, and others — because oceans no longer protect us, the United States of America must confront threats before they cause us harm. In other words, in the old days we could see a threat and say, well, maybe it will cause harm, maybe it won’t. Those days changed, as far as I’m concerned. Threats must be taken seriously now, because geography doesn’t protect us and there’s an enemy that still lurks.

***

I’m deeply concerned about Iran… I’m concerned, when …their president announces his desire to see that Israel gets destroyed. Israel is our ally. We’re committed to the safety of Israel, and it’s a commitment we will keep….

I’m concerned about a non-transparent society’s desire to develop a nuclear weapon. The world cannot be put in a position where we can be blackmailed by a nuclear weapon. I believe it is very important for the Iranian government to hear loud and clear from not only the United States, but also from other nations around the world. I also want the Iranian people to hear loud and clear, and that is, we have no beef with you. We are worried about a government that is not transparent whose aims and objectives are not peaceful. And, therefore, we don’t think that you should have the capacity to make a nuclear weapon.

The diplomatic strategy is being led right now by what’s called the EU3 — France, Germany and Great Britain — and they’re doing a good job of keeping together a common message to say to the Iranians that we expect you to adhere to international norm. The next logical step if the Iranians continue not to adhere to international norm or the demands of the free world is to go to the United Nations Security Council.

At the same time, the development of an Iraqi democracy is an important message to people inside of Iran. I told you what I believe. I believe everybody desires to be free. I believe women want to be treated equally. And I think that a message of democracy and freedom in that part of the world will embolden reformers. But this is a serious issue.

McGuinness on Justice Blackmun’s Internationalism

by Roger Alford

Our own Peggy McGuiness has just published an article in the Missouri Law Review on “The Internationalism of Justice Blackmun.” When an international scholar thinks of Justice Blackmun a few cases quickly come to mind: Mitsubishi v. Soler, Aerospatiale, Sale, Goldwater, etc. But as McGuiness outlines, his impact on internationalism is far greater than a few odd cases. It also includes nurturing the likes of Harold Koh and Donald Donovan, and authoring a seminal article that has proved instrumental in launching the current rage of reliance on foreign authority in constitutional interpretation. All of this, and more, is outlined in McGuiness’ article. With the Blackmun Papers now available, McGuiness looks behind the curtain and offers a deeper understanding of Justice Blackmun’s internationalism.

Here is the abstract:

Justice Harry Blackmun has been described as “willful”, “liberal”, “conservative”, “humble”, and a “White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs”. One adjective that is conspicuously missing is “internationalist”. Internationalism is, in part, reflected in Blackmun’s “preference change” or shift from relatively conservative to relatively liberal. At the same time, Blackmun’s internationalism defies most traditional judicial typologies. That Blackmun as internationalist has been a minor theme in the academic literature is understandable given the small number of cases concerning international or transnational legal questions that reach the Court. Nonetheless, an examination of those opinions, as well as of Justice Blackmun’s best known outside writing and speaking, uncovers his somewhat surprising and arguably influential internationalist turn.

This comment provides a roadmap for closer examination of the Blackmun Papers and evaluates the sources of internationalism in Blackmun’s opinions as manifested in four separate but related jurisprudential approaches: (1) in federalism questions, deferring to the federal political branches’ ordering of international economic and political relationships; (2) adopting a view of globalization that preferences international and/or foreign-based approaches to ordering private economic and business relations; (3) interpreting treaty obligations according to globally accepted international law interpretation doctrines; and (4) respecting and acknowledging international and foreign judicial opinions in constitutional jurisprudence. An understanding of these approaches can usefully inform typologies of internationalism among other Justices, past, present, and future.

Rational Heads Prevail: Congo to Lead African Union

by Peggy McGuinness

Just a day after the U.S. and other Western states expressed concern about the possibility of Sudan chairing the African Union, the AU elected Congo to the chair for a year. (See Julian’s post.) The compromise allows Sudan to take the chair next year, which doesn’t solve the problem, but at least kicks the can down the road for a while. It also allows the AU to continue playing the lead peacekeeping role in Darfur and act as sponsor for the peace process there.

This last-minute change may demonstrate that, despite protocols and gentleman’s agreements, states are capable of acting on the underlying merits when it comes to chairing international organizations. Let’s see if there is a lesson in there for a Human Rights Council.

Anti-Americanism: Canadian Edition

by Julian Ku

Canadians voted today in a hotly contested election pitting a resurgent Canadian Conservative Party against a defensive but still dominant Liberal Party. Early results show the Conservatives winning a plurality of the seats. They still may not have enough seats, however, to form a government.

I don’t have a dog in this race, but I am struck that one of the major lines of attack on the Conservative Party leader Stephen Harper is that he is “an extremist with ties to the United States.” (emphasis added). That is shocking indeed, and it is wonder he managed to get as many seats.

I suppose if Canadians hate Americans, then it is hard to imagine who loves us. Still, I wonder how much of this language is silly posturing and a reflection of a particularized Canadian form of nationalism driven largely by defining Canada as the “Not-America” (a phenomenon I ruminated on this past summer here). This same form of strange anti-American nationalism is endemic to South America as well, where political leaders show off their anti-American toughness as a way to get votes.

I’m sure some of this is driven by U.S. foreign policy, but some of this would no doubt occur no matter who was President. The U.S. pretty much does nothing to Canada except put some tariffs on part of its lumber industry. Meanwhile, the U.S. is Canada’s largest trading partner and its guarantor of national security.

Yet America still looms large as the “Enemy”. Very odd and somewhat pathetic.

Sudan’s Bid for Leadership of African Union

by Julian Ku

In an unfortunate rotation, the African Union’s annual summit is being held in Khartoum, Sudan this year. This is unfortunate because the host always is nominated for the leadership of the group, but that would mean the AU this year would be headed by perhaps its most unsavory member: the government of Sudan.

This minor leadership battle is a larger challenge for the African Union, which has aspirations to build better political relations in Africa, including the deployment of peacekeeping forces and the creation of a court of human rights. But such an organization is not likely to succeed in becoming an effective organization if it is led by the countries most likely to be the subject of peacekeeping operations and criminal investigations.

Kurdish Judge Appointed New Chief of Iraqi Special Tribunal

by Peggy McGuinness

Speaking of war crimes trials, according to press reports, Ra’uf Rashid Abdul Rahman, a judge on the Iraqi Special Tribunal, will be elevated to Chief Judge to replace Rizgar Muhammad Amin, who submitted his resignation from the court a week ago. Last week the Iraq government announced that Amin would be replaced by Said al-Hammash, another judge on the tribunal. (As I understand it, Hammash’s name was withdrawn amid protests that he was a former member of the Baath party; presumably such membership would have disqualified him from any position on the tribunal.) In the meantime, political leadership in Iraq is trying to convince Amin to stay on the tribunal, even in a lesser role, to preserve the continuity of the court and to counter reports that Amin resigned due to political pressure.

Saddam Hussein’s trial is set to resume tomorrow. It is important that the tribunal itself has its act together. Given the uncertainty of the past week and the machinations over the judges, that may not be the case. And changes to the composition of the court give defense counsel precisely the kind of ammunition they need to attack the procedural and substantive fairness of the tribunal. I tend to agree with William Schabas, who has been providing thoughtful commentary over at Grotian Moment:

This is a wake-up call to all who are concerned that the trial of Saddam Hussein be carried out fairly and impartially. It may well be that the current situation in Iraq, which borders on anarchy, is simply not conducive to proper justice being rendered. If that is the conclusion, the trial should be stopped, or it should be moved to a venue where justice can be done.

Michael Scharf, David Crane, and Mike Newton have additional insights (drawn from their considerable collective experiences with the ICTY, Sierra Leone Special Tribunal and the IST) at Grotian Moment on both the initial wisdom of carrying out the IST in Iraq with Iraqi judges, and the potential for moving the trial to a location outside Iraq.

Churchill on War Crimes Trials

by Peggy McGuinness

Yesterday’s NYTimes ran this piece about the recently released minutes of Winston Churchill’s wartime cabinet meetings. Here are the notes about Churchill’s reluctance to try Nazi war criminals and his preference for execution without trial:

As early as July 6, 1942, Churchill was clear about what to do with Hitler.

If Hitler falls into our hands we shall certainly put him to death. Not a sovereign who could be said to be in hands of ministers, like Kaiser. This man is the mainspring of evil. Instrument – electric chair, for gangsters no doubt available on Lease Lend.

On April 12, 1945, as the war drew to a close, Churchill rejected the idea of a war crimes trial.

Agree the trial will be a farce. Indictment: facilities for counsel. All sorts of complications ensue as soon as you admit a fair trial. I would take no responsibility for a trial – even though U.S. wants to do it. Execute the principal criminals as outlaws – if no Ally wants them.

After the Nuremberg trials were underway, Churchill’s view of the power of prosecution altered. The Claremont Institute blog posted a memo on this subject by Larry Arnn. This is how he portrays Churchill’s later views, which can be summed up as a kind of Churchillian relief at “victor’s justice”:

July 30, 1946: “He said he had had, during the War, no idea that the German atrocities had been on the scale that the Nuremberg evidence had shown them to be. And although he had had misgivings about that trial at the beginning, he now felt it was well justified. This was largely because of the groveling attitude of the defendants. If he had been in the dock (as indeed he certainly would have been if the war had gone the other way), the line that he would have taken was–‘we do not recognize the competency of your court. We will await the verdict of the German people, whom we served, in twenty or thirty years’ time. You won the war; take your vengeance on us in whatever way you like. We do not recognize any authority above the rights of the German State.’ But undoubtedly the enormity of the crimes had come as a surprise to the defendants themselves.” The source for this is notes taken during a luncheon by Allen Campbell-Johnson.

In November 1946 in a speech in the House of Commons he treated the Nuremberg Trials as a purgative. He portrayed it as a substitute for the persecution or prosecution of ordinary Germans.

Also in 1946, probably sometime in November, Lord Ismay was with Churchill when he heard the results of the Nuremberg War Trials. Ismay was close to Churchill, senior military man during the War, and later the first military head of NATO. He said: “I happened to be with him at Chartwell when the results of the Nuremberg Trials of the Nazi war criminals were published ‘it shows’ he remarked, ‘that if you get into a war, it is supremely important to win it. You and I would be in a pretty pickle if we had lost.'”

Raustiala on "The Limits of International Law"

by Roger Alford

Kal Raustiala has a recent article to be published in the Georgia Journal of International and Comparative Law on Jack Goldsmith and Eric Posner’s “The Limits of International Law.” Here is the abstract:

Jack Goldsmith and Eric Posner’s “The Limits of International Law” is not an uplifting read for most international lawyers, who are trained to think international law makes an important difference and generally believe more international law is better. The authors’ overarching message is that international law is an endogenous outgrowth of individual state interests, and almost never a constraint on those interests. International law can, under special conditions, promote limited cooperation. But its ability to do so is very restricted. Goldsmith and Posner come to these conclusions via an analysis grounded in rational choice theory. In international relations this approach is mainstream. Despite their greater emphasis on the limitations of international institutions, Goldsmith and Posner’s analysis is largely consistent with a very large body of existing work in international relations, and is even more derivative of it than they, or their readers, may realize. Limits nonetheless advances some important and trenchant criticisms of prevailing scholarship. And its positive analytic approach to state behavior reflects the burgeoning attention to theories and approaches drawn from political science and economics. Despite these virtues the book is unjustifiably skeptical about international law. Focusing particularly on its chapters on the dynamics of international cooperation, I argue in this review that Limits’ relentless rationalism, while clarifying, fails to explain much of the texture of international cooperation – in large part because it fails to take proper account of the last twenty years of research in international relations, much of which highlights complex but important feedbacks between international institutions and domestic politics, preferences, and institutions.

Part I contextualizes the book’s arguments within political science scholarship. Part II then shows that even within the rationalist tradition in political science that the authors draw on there is far less skepticism about the stability of cooperation than we see in Limits. That relative enthusiasm, moreover, is not at all grounded in flights of normative fancy or shoddy analysis, but rather in advances in the literature on institutional design in political science. Part III argues more generally that our understanding of the role of law in world politics can be enriched by accounting for a major strand of theory that they largely ignore: liberal international relations theory. Domestic politics seeps into Goldsmith and Posner’s analysis here and there, but a more systematic incorporation would improve their arguments substantially. I illustrate the value of such an approach with a brief discussion of a vexing topic examined in Limits: the choice between binding and non-binding international agreements.

Double Duty: Guest Blogging at PrawfsBlawg

by Julian Ku

This week I’ll be one of a number of guest-bloggers over at PrawfsBlawg. This is an opportunity for me to post about stuff not directly related to international law. But never fear, I will continue to be posting here as well. Should be fun. Please check in.

L.A. Times Details Altmann Litigator’s Strategy

by Roger Alford

Nice puff piece in the L.A. Times about Randol Schoenberg, the lawyer who brought the claim on behalf of Maria Altmann to recover five Gustav Klimt paintings. Interesting read on the gamble that Schoenberg took in bringing the case and the unlikely success story of a complete win for his client. I have posted about the litigation here and here.

International Law Guarantees University Financial Aid

by Roger Alford

Or so the plaintiffs in Ficken v. Rice (D.D.C. Jan. 17, 2006) argue. Interesting strategy. If a university committee denies your child’s application for financial aid, just make a federal case out of it. And for good measure, include Secretary of State Condoleeza Rice as a defendant and claim a violation of the Convention on the Rights of the Child and the U.N. Declaration of Human Rights.
In Ficken, plaintiff’s son applied for and was denied financial aid at the American International School of Bucharest in Romania. So he sued and claimed an international law violation. Judge Urbina wasn’t buying it. “Though the U.N. Declaration may be considered evidence of customary international law, it is not legally binding or self-executing… [and] the U.N. Convention offers no support for the plaintiffs because it has not been ratified by the United States.”
The decision is not yet available online, but you are not missing much.

The Answer to Piracy: the U.S. Navy. But What About Terrorism?

by Julian Ku

Cool! A U.S. Navy vessel has boarded and captured a suspected pirate operating off the coast of Somalia. As Roger noted a while ago here, pirates recently chased a cruise liner in the same waters. It looks like the U.S. Navy is on the case.

But what legal authority does the U.S. Navy have to board and capture a suspected pirate on the high seas? More to the point, after catching them, what legal authority does the U.S. have to prosecute them and seize their ship?

Here is yet another way that international law can be useful. The customary law of the sea, which was probably codified in Articles 102-107 of the UN Convention on the Law of the Sea, appears to govern this situation. Article 102 states:

On the high seas . . . every State may seize a pirate ship . . . arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.

Of course, the U.S. is not a party to the Law of the Sea Treaty. Thus, if it sought to prosecute and punish the pirates in its domestic courts (which it can do under the treaty), it would have to apply customary international law. They might even convene a special military commission and apply the customary law to prosecute them.

In fact, it sounds a lot like how the U.S. military in general is trying to deal with terrorists. Unfortunately, the international consensus on terrorists is far more elusive than that with respect to pirates. So international law can only get you so far.

The Message of Jihad on Trial at Old Bailey

by Roger Alford

The trial of Abu Hamza in London is a subject that is riveting the English press, but amazingly is largely ignored back here in the United States. Hamza is an imam at London’s Finsbury Park mosque who is accused of encouraging terrorism, death, and murder of non-Muslims. He is on trial for 15 charges, including nine counts for soliciting murder, four counts for words or deeds that stir up racial hatred, and one count for possessing material useful in committing acts of terror.

The BBC is doing an outstanding job of covering the trial, with dozens of stories that provide a fascinating glimpse of Hamza’s venomous preaching. If you read the stories or watch the video, it is clear that Hamza has utter disdain for non-Muslims and openly advocates violence against them. A few of Hamza’s sermons were recorded so we have full text transcripts of his vitriole. Here are themes outlined in his sermons:

1. Allah Sent Hitler to Kill Jews. “They [Jews] are enemies to one another and Allah has cursed them … This is why he send [sic] Hitler for them. Jews they have nowhere to go, they are going to be buried in Palestine all of them.” (Link).

2. Jews are Blackmailing the West. “Now all these dogs of the West they have to go now, none of them have condemned what Israel has done to the Muslims and the Palestinians…. Why they act like sugar daddy for Israel? Because they love the Israelis? No way! Because they hate them very much, but the Israelis know how to deal with them. They got a file for each one of these politicians, how much homosexual you are, how many money he has taken as bribe, whom his wife goes with, which child he has been abusing and they got all this against them. Jews know how to control people. This is how they know how to control our leaders. (Link) .

3. Killing Infidels Without Cause is Acceptable. “Killing a Kafir [infidel] for any reason you can say it is OK even if there is no reason for it….Make sure that the person who gave him the licence for that wine shop doesn’t exist anymore on the earth. Finish him up. Give him Dawa. If he doesn’t respect Dawa, kill him.” (Link).

4. Israel Will Become a Graveyard. “The Jews will be destroyed, the state will be destroyed and some of the Jews will be running around hiding behind the trees and the stones and then they got cursed by the earth until there is not one of them left…. The Jews will never leave Palestine. The Jews will be buried there…. It is decreed that it will be the biggest Jewish graveyard in the world…. We do not want the Jews to pull away from Palestine, but we want them to be buried there. This is God’s decree…” (Link).

5. All Sinners are Targets. “Every place of iniquity, every brothel, every video shop which is selling naked, for the victorious party is a target…. If anybody protect these kufr (unbeliever) places and these fisq (sinful) places is a target… Anybody who propagate these kind of thing among Muslims is a target.” (Link).

6. Suicide Bombers are Martyrs. “It is not called suicide, this is called martyrdom…. If we do not use terrorism or torture what are we going to use?” (Link).

7. We Must Bleed the Enemy. “You have to bleed the enemy. Then, after you have done that, obviously you will be on the run.” (Link).

8. You Must Kill Them With Mice Poison, Not WMDs. “There is no real need to go and train for tanks and aeroplanes… where are you going to find these… you can’t buy these in the market… you cannot make them yourselves… You cannot do it by chemical weapons, you have to do it by mice poison.” (Link).

9. Allah Loves Blood. “There is no drop of liquid loved by Allah more than the liquid of blood.” (Link).

It is difficult to fathom that two Underground stops from King’s Cross Station we have an imam at a mosque in North London who is preaching such violent hatred. American and English sensibilities give a very wide berth for the freedom of speech. But these words, if proven to be uttered by Hamza, are criminal. They directly incite terrorism, murder, and death of non-Muslims. They are antithetical to a free and civil society and are deserving of criminal punishment.

Bridge Blogging to Iran

by Roger Alford

Rebecca MacKinnon at Harvard Law School’s Berkman Center for Internet and Society and regular blogger at RConversation, is doing some fascinating work on promoting and cataloguing the use of global blogging to provide an alternative means of information in repressive regimes. She calls it “bridge blogging.” If the government controls the media in a particular country such as China or Iran, then how can locals get unfiltered information? One way is through “bridge bloggers” who write outside the country about events inside the country.

One such bridge blogger that MacKinnon highlights in a recent book interview is an Iranian dissident who lives in Canada named Hossein Derakhshan. Derakhshan writes a Persian/English blog at Hoder.com. Here is an excerpt of a recent interview that Hoder had with a German e-magazine, Jetzt.de, that gives you a flavor of the impact that bridge blogging is having in a country such as Iran:

Do you actually think that blogs have the ability to somehow change a political system as authorical as it is at time in Iran? Yes, but not directly. Masoud Behnoud, a veteran journalist and a blogger once wrote if blogs were around during the revolution and the war, things would’ve turned out differently. I think the most important function that blogs have in Iran right now is the public sphere they’ve created, referring to Habermas’ concept. Blogs are now this unique space in which a relatively equal, interactive and collective debate could happen out of the government’s control, and among a very influential group of people who are, sociologically speaking, reference groups for a lot of people around them.

Can the Iranian Blogosphere count as a realistic reflection for the common opinion of young Iranians? I believe so. Mainly because higher education in Iran is still free and therefore open even to the lower class. A lot of these bloggers are introduced to the concept of blogs in their computer labs and update them from there. Internet access cards and internet cafes are also widely available in even small cities in Iran because they make sense economically. There are now 7.5 million internet users in Iran and it is estimated there are over 700 thousand blogs written by Iranians. I can even say that reading or writing blogs is one of the biggest motives for Iranians for paying for Internet access – obviously after porn. According to a blogger, young people now chat less and blog more.

Nasrin Alavi wrote in her book “We are Iran”, that you were among the first who wrote a weblog in Persian plus giving a short “how to do a weblog”. Do you somehow feel like an Idol? Maybe Internet evangelist is better title. I’ve spent the past seven years introducing and promoting liberating technologies such as Internet, email, blogs, photoblogs, podcasts, etc. Before leaving for Canada in Dec. 2000, I was writing a daily column called “Internet” in the most popular reformist newspaper, titled “Asr-e Azadegan”, which was eventually shut down after a few months.

I’m still getting emails from people who had no idea what Internet was at the time and were just collecting the column to read when they got access to the Internet. I was writing, in a simple and casual language — language of my generation — about how Internet could improve people’s daily lives. Our newspaper was the first one which started to mention columnists’ email addresses due to my persistence and my readers still remember how in my column I was nagging about the fact that some of them were not getting it at the time. Now they all not only have emails, but also they are savvy bloggers. Ask the famous satirist Ebrahim Nabavi.

I did the same thing for blogs. I dedicated the first year of my high-speed Internet access – which obviously happened in Canada where I immigrated to – introducing and promoting blogs.

I made a lot of blogs for people, spent tens of hours helping them with the technical issues, dragged a number of famous journalists to do it in order to give more credibility to it, kept a huge list of all Persian bloggers by the time manually and then later created a website to list them automatically with the help of a friend, etc. And I kept introducing new tools and technologies such as RSS feeds, blogrolls, It’s really unfair to say I’ve only written an instruction.

Is your blog available from Iran? Its main URL (hoder.com) is filtered or blocked for Iranians in Iran by the government. But I’ve bought some other domain names such as hoder.us, hoder.info, editormyself.com, h0der.com etc. and many people access it through these addresses. But the thing is that it’s very difficult to inform the readers about these new domain names. Because if they were too public, the officials would find it and filter it. If it’s not public enough, people can’t use them.

So it’s a very interesting virtual partisanship which invoices a lot of psychological tricks. Such as using 0 (Zero) instead of Os so it still looks like the old address and the official think they’ve already filtered it. Lots of such small tricks.

However, other than the average of six, seven thousand readers who visit my blog everyday, I have over 11,000 subscribers to the blog through email; which is incredible. Email is the last thing they can block or control and in countries like Iran and China, I believe, email is the best way to get around internet censorship. My nightmare is to lose this extremely valuable list.
And Hoder, who clearly loathes Ahmadinejad, has some surprising opinions for the West. For example, in this open letter to US and EU leaders Hoder argues that “you can’t stop Iran from achieving nuclear weapons… so … instead of putting all your energy on stopping Iran, channel all your resources to make this regime change its behavior…. [I]nstead of promoting inaction and boycott, encourage everyone to participate in the coming elections. The way you did and still do in Iraq.”

One can certainly see how bridge blogging has the potential to dramatically impact access to information in repressive regimes such as Iran, as well as offer the outside world insights into the mindset of the common Iranian behind the curtain. Detailed, opinionated information about events relevant to Iran for all the world to read online and thousands of Iranians to read by email.

So what is the future of bridge blogging? Rebecca MacKinnon writes, “It is going to be fascinating to see how this develops and what kind of impact the blogs begin to have on press and politics in various countries. It’s still in its very early days but all of these people that I have mentioned are playing historic roles in changing the way political discussion takes place in these countries.”

Bridge blogging is one of the more exciting events occuring on the blogosphere. While blog pundits in the United States can make a marginal difference, bridge bloggers in other countries are providing a critical source of fresh, clear, bottom-up communication to their fellow citizens. In countries where the mass media is polluted by government controls, bridge bloggers can quench the thirst for less filtered news.

Translation of Altmann Award for Klimt Paintings

by Roger Alford

Randol Schoenberg has provided an English translation of the arbitration award by the Austrian arbitral panel regarding the claim by Maria Altmann against Austria for five Gustav Klimt paintings. An English translation is here. I published a post about the decision earlier this week, available here. Here is the dispositive language:

1. The Republic of Austria acquired ownership of the paintings by Gustav Klimt, Adele Bloch-Bauer I, Adele Bloch-Bauer II, Apfelbaum, Buchenwald/Birkenwald, and Häuser in Unterach am Attersee by virtue of the settlement with the representative of the heirs of Ferdinand Bloch-Bauer, Dr. Gustav Rinesch, in 1948.
2. The conditions of the Federal Act Regarding the Restitution of Artworks from Austrian Federal Museums and Collections dated 4th December 1998, Federal Law Gazette 1 No. 18111998 for the return of the five paintings indicated above without remuneration to the heirs of Ferdinand Bloch-Bauer are fulfilled.
3. Pursuant to Section B of the Arbitration Agreement, the Republic of Austria shall bear the costs of the proceedings.

Flipping Youngstown: The DOJ Unveils its Legal Defense of NSA Spying

by Julian Ku

As the NYT reports, the U.S. Justice Department has released a memo defending the legality of the controversial NSA spying program. The NYT (of course) barely describes the memo and then devotes half of the article to quotes by legal experts who say it is unpersuasive. Dean Robert Reinstein speaks of a scholarly consensus that the NSA program is illegal.

Unbelievably, Marty Lederman of Balkinization has not weighed in yet (I spoke too soon, Marty is on the case here and Orin Kerr is on the case here), so let me rush to be the first to blog about the DOJ’s memo, which (contra the NYT and Dean Reinstein) I found to be quite persuasive and far from weak.

Here are the highlights:

(1) Youngstown

The memo invokes the Jackson concurrence in Youngstown, but “flips” the case in favor of the Executive. The President is not acting in Category III, the “lowest ebb,” where Congress has prohibited the action by the President. Rather, he is acting in “Category I”, or at the “zenith” of his powers because Congress has authorized him to “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Warrantless wiretapping of suspected Al Qaeda callers seems to fit this language, if broadly construed.

The memo then explains that this language ought to be broadly construed by because warrantless wiretapping in pursuit of foreign intelligence, especially in pursuit of foreign intelligence that might prevent a terrorist attack, is an inherent constitutional power allocated exclusively to the President. They even quote Justice Jackson (when he was a wartime Attorney General) in support of this authority.

(2) The Authorization for the Use of Military Force and Hamdi

Moreover, this analysis tracks the rule in Hamdi which teaches that the AUMF should be interpreted to authorize all actions by the President that are a “fundamental incident of the use of military force.” The memo cites all sorts of military authorities for the very plausible view that intercepting foreign enemy communications is one of those fundamental incidents.

(3) The Foreign Intelligence Surveillance Act

The biggest obstacle for the DOJ’s memo is FISA, the federal statute that prohibits domestic wiretapping without a warrant by a special intelligence court. Here, the memo digs up lots of legislative history that supports the limited scope of FISA. None is definitive, but some does hint that NSA wiretapping of international communications involving Americans was not within the statute’s reach. It relies heavily on the exception in FISA for wiretapping “authorized by statute” thus returning to its heavy reliance on the AUMF. It reads this language as allowing warrantless wiretapping without requiring a repeal or specific amendment of FISA.

Most importantly, though, the memo squarely takes on the FISA provision (section111) providing for a 15 day period of warrantless wiretapping following a declaration of war. It suggests that the legislative history does not support reading this provision as limiting warrantless wiretapping when there is no declaration of war. Indeed, the DOJ memo makes the argument I made here: that an AUMF might be broader, or at least, more specific in its authorization of wiretapping than a declaration of war. As the memo states:

As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not.

Indeed, Section 111 should give rise to the opposite inference. While a declaration of war allows only 15 days of wiretapping, Congress left out “authorization for the use of military force” resolutions on the assumption that those resultions would authorize more than 15 days of wiretapping.

***

All in all, the memo strikes me as a fairly persuasive response to the critics of the legality of the NSA program. The critics can rightly point to the pretty broad prohibitions in FISA while the President can rightly point to the pretty broad language in the AUMF.

I guess for me, the question boils down to whether warrantless wiretapping of foreign-domestic phone calls is a plausible “fundamental incident of war powers.” Historically, I’m not so sure. But in this war, where the primary goal of the enemy is to launch a terrorist attack inside the U.S., it seems far more likely.

The memo makes (to me) a persuasive analogy between foreign-domestic wiretapping and the President’s power to respond to a foreign-domestic attack in the United States without congressional authorization. If, for instance, the President can order an attack on a hijacked American airliner carrying Americans but arriving from a foreign country (which he undoubtedly can), then it seems that he should also be able to wiretap foreigners calling Americans who might be planning to hijack an airliner.

No matter where I come down in the end, I think it is far too early for experts like Dean Reinstein of Temple to declare that this is a “pretty straightforward case” of the President acting illegally. The DOJ memo is not perfect, but it makes a very strong case that this is a hard rather than an easy case.

Human Rights Watch Issues 2006 Annual Report

by Roger Alford

Human Rights Watch issued its 2006 annual report yesterday. The press release focused on the United States “conscious policy choice by senior U.S. government officials” to engage in abusive inerrogation. That policy has “hampered Washington’s ability to cajole or pressure other states into respecting international law.” “Responsibility for the use of torture and mistreatment can no longer credibly be passed off to misadventures by low-ranking soldiers on the nightshift,” said Roth. “The Bush administration must appoint a special prosecutor to examine these abuses, and Congress should set up an independent, bipartisan panel to investigate.” The press release also sharply criticized Canada, Britain and the rest of the EU for “subordinat[ing] human rights in its relationship with others deemed useful in fighting terrorism.”
Kenneth Roth’s introduction is even more vitriolic in its criticism, stating that, “The U.S. government’s use and defense of torture and inhumane treatment played the largest role in undermining Washington’s ability to promote human rights. In the course of 2005, it became indisputable that U.S. mistreatment of detainees reflected not a failure of training, discipline, or oversight, but a deliberate policy choice.”
There is surprisingly little in the press release about how the actual act of terrorism is a gross violation of human rights. One sentence in the press release noted in passing that “fighting terrorism is central to the human rights cause.” Roth’s introduction provides a few more details, but then immediately returns to criticism of the West: “Fighting terrorism is central to the human rights cause. Any deliberate attack on civilians is an affront to fundamental values of the human rights movement. And acts of terrorism took an appalling toll in 2005. In Iraq attacks on civilians occurred nearly every day, killing thousands, while other terror attacks claimed the lives of civilians in Afghanistan, Britain, Egypt, India, Indonesia, Israel, Jordan, Nepal, Pakistan, Thailand, and the United Kingdom. But the willingness to flout human rights to fight terrorism is not only illegal and wrong; it is counterproductive. These human rights violations generate indignation and outrage that spur terrorist recruitment, undermine the public cooperation with law-enforcement officials that is essential to exposing secret terrorist cells, and cede the moral high ground for those combating the terrorist scourge.”
What is so disappointing to me is that Human Rights Watch admits that “thousands” are being killed by terrorism in over a dozen countries, and yet the overwhelming focus of the press release and Roth’s introduction is on interrogation techniques of the United States. Buried in the report is news that two million are displaced in Sudan, and that in that country “killings, rape, torture, looting of civilian livestock and other property took place on a regular basis.” Page after page of the annual report discusses the “pervasive” human rights violations of Saudi Arabia, “routine” torture in Iran and Egypt, “serious human rights problems” in Venezuela relating to police violence, torture, and abusive prison conditions, and serious problems with “torture and ill-treatment” in Mexico. The report notes that Russia “slipped deeper into authoritarianism,” while China, “remains a one-party state that does not hold national elections, has no independent judiciary, leads the world in executions, aggressively censors the Internet, bans independent trade unions, and represses minorities such as Tibetans, Uighurs, and Mongolians.”
Given the state of human rights around the globe, why is it that Human Rights Watch is so laser focused on the United States? If the annual report is intended to catalogue and highlight the globe’s human rights problems, shouldn’t the introduction and press release be faithful to that catalogue? I know (and share) the traditional argument that the United States and Europe must be held to a higher standard. But does that justify a global human rights organization, whose motto is “defending human rights worldwide,” singling out this country for its harshest criticism? Of all the human rights abuses in the world–the extrajudicial killings, the routine tortures, the grave police violence, the former assassins in political power in Iran bent on the nuclear annihilation of Israel, the genocide in Darfur–what deserves the world’s greatest attention are events such as the Bush Administration’s opposition to the McCain Amendment? Would Transparency International or Freedom House engage in such overtly political reporting in their annual reports? Of course, I’m not excusing the human rights abuses of any country. But I just find it curious. And disappointing.

Arbitrating By Email

by Roger Alford

Interesting decision by an English court (Queens Bench Commercial Court) that email is sufficient to arbitrate a maritime dispute under the English Arbitration Act 1996. Notice of the arbitration, together with various subsequent communications and briefings, were all done by email. Before rendering the award, the arbitrator noted that “No Defence submissions were received at any time. [But] I was and am satisfied that [defendants] are aware of these proceedings and that they have had a reasonable time to serve Defence Submissions. Accordingly I proceeded to my Award.” After receiving a $40,000 adverse award in the mail, attorneys for the defendants argued that clerical staff ignored the emails and queried why no other medium of communication was utilized. Apparently the clerical staff thought the emails were spam and ignored them. Nonetheless, the Court ruled that the email communications were sufficient.

There is no reason why, in this context, delivery of a document by e-mail – a method habitually used by businessmen, lawyers and civil servants – should be regarded as essentially different from communication by post, fax or telex. That is not to say that clicking on the “send” icon automatically amounts to good service. The e-mail must, of course, be despatched to what is, in fact, the e-mail address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt he may not be able to show that receipt has occurred. There may be circumstances where, for instance, there are several e-mail addresses for a number of different divisions of the same company, possibly in different countries, where despatch to a particular e-mail address is not effective service. But in the present case none of those difficulties arise. …

That e-mail and those that followed it, are plain and straightforward in their terms. They bear none of the hallmarks of “spam”. On the contrary they called for serious attention. The e-mail of 5th May was sent with High Importance. It referred to a vessel which Bernuth had in fact chartered by the charterparty mentioned in it. It identified Swinnerton Moore as High Seas’ London solicitors, which they were, and referred to an outstanding hire claim which had been the subject of earlier correspondence. It purported to initiate arbitration proceedings by calling for agreement as to an arbitrator. I should be surprised if much junk e-mail purports to do that or to emanate, as later e-mails did, from an LMAA arbitrator.

This decision follows on an earlier post about South Korea issuing criminal indictments by text messaging. It appears that civil and criminal procedure is now making serious overtures to the Internet age. But in the abundance of caution, why not, perhaps use traditional mail as well? Just in case?

Is it not just possible that some spam has all the trappings of formal documentation (i.e., Urgent Email from Nigeria: “If you agree to help me, I will send you by courier the ELECTRONIC CARD KEY of my vault so that you can travel to London and open the vault; You will then remove the money total USD4 million and transfer it to your Bank Account. For your help and assistance, you will keep 10% of the money for your self and keep 90% for me in safe custody until I travel to meet you and invest my share.”).

Is it not possible that clerical staff might just ignore these email documents? I’m not a technophobe, but it would seem that the arbitrator and the court should have displayed a little greater sensitivity to the procedural concerns of arbitrating exclusively by email.

"I’ll Take a Xingbake Double Espresso to Go"

by Roger Alford

Interesting story coming out of China about the dispute between Starbucks and Xinbake, which is a major Chinese competitor. “Xin” means star and “bake” is pronounced “bah kuh.” So Starbucks sued and a Chinese court ordered Xinbake to change its name because it was engaging in “illegitimate competition.” (Hat tip: How Appealing)
I love this tidbit at the end of the story: “Starbucks opened its first cafe in China in 1999 and has since spread nationwide, with 50 stores in the capital Beijing alone. At up to $6 a cup, the company’s coffee costs more than the average Chinese worker makes in a day.” Coffee wars for that huge segment of the Chinese market that will spend a day’s wage on a cup of coffee. Forget about breakfast, lunch, dinner, and rent. Just give me a vanilla latte.

New Blog: The International Economic Law and Policy Blog

by Chris Borgen

Joel Trachtman of the Fletcher School and Petros Mavroidis of Columbia Law School have started the International Economc Law and Policy Blog. The opening salvo of posts have touched on topics ranging from the trade in caviar and the protection of endangered species, to the governance of cyberspace, to World Bank conditionality and sovereignty, to the judgeing style of the WTO Appellate Body. A great start to what will surely be a great resource. Welcome to the blogosphere!

R.I.P., Professor Arthur von Mehren

by Julian Ku

Professor Arthur von Mehren, Story Professor of Law Emeritus at Harvard Law School, passed away yesterday at the age of 83. The Harvard statement on his death is here. Professor von Mehren was one of the pioneers in American legal education in the fields of comparative law, choice of laws, international litigation and international commercial arbitration.

Professor von Mehren’s achievements as a scholar need no amplification here. Let me just note that he wrote over 210 publications, including 10 books, over a fifty-year career and taught thousands of HLS students. A Harvard symposium in his honor was held in 2002 and described his remarkable academic career here.

"Judicial Outsourcing?" Big Lumber’s Challenge to NAFTA Panels Heads to D.C. Circuit

by Julian Ku

Big Lumber has filed a brief in the U.S. Court of Appeals for the D.C. Circuit further elaborating its attack on the constitutionality of part of the NAFTA review process (which I described briefly here). Their brief is not yet available online (UPDATE: the brief can be accessed here. Thanks to reader Simon Lester for the pointer). I do have to give their PR guys lots of credit for coining the term “judicial outsourcing” to describe the allocation of certain powers to NAFTA tribunals. I wish I had thought of that. That captures very much the political dimension of their case, although I am not yet sure what I think of their legal arguments.

Ninth Circuit En Banc Dismisses Yahoo! Case

by Roger Alford

Last week the Ninth Circuit en banc issued an important decision in Yahoo! v. LICRA. In a complicated judgment, it concluded that it does have personal jurisdiction over LICRA and UEJF, but that the combination of votes against personal jurisdiction and ripeness required dismissal of the case without prejudice. It is a complex decision with forty-pages of opinion, so I will give only the briefest of summaries.
The case is one of the more important personal jurisdiction cases involving international parties and transnational contact. LICRA and UEJF sued Yahoo! in French courts for permitting the sale on its auction site of “messages, images and text relating to Nazi objects, relics, insignia, emblems and flags, or which evoke Nazism” and “text, extracts, or quotes from ‘Mein Kampf’ and the ‘[Protocols of the Elders of Zion]'” A French court order subjected Yahoo! to a fine of 100,000 Euros per day of delay. Since that time Yahoo! has brought its actions into “substantial compliance” with French law and the fines have not been imposed.
In response to this French court action, Yahoo! filed suit against LICRA and UEJF in federal district court, seeking a declaratory judgment that the interim orders of the French court are not recognizable or enforceable in the United States. The district court held that it had personal jurisdiction over LICRA, and the Ninth Circuit reversed.
At issue in the case was whether LICRA and UEJF, both anti-racism groups, were subject to personal jurisdiction based on their contacts in California. Those contacts were the following: (1) cease and desist letter that LICRA sent to Yahoo!, demanding that Yahoo! alter its behavior in California to conform to what LICRA contended were the commands of French law; (2) service of process of Yahoo! in California; and (3) LICRA obtained two interim orders from the French court directing Yahoo! to take actions in California, on threat of a substantial penalty.
The Court applied the three-prong test for specific jurisdiction to the facts of this case and concluded that the third contact satisfied the requirements of specific jurisdiction. Here is an excerpt:

The first two requirements are that LICRA and UEJF “have ‘(1) committed an intentional act, [which was] (2) expressly aimed at the forum state [.]’ “… It is obvious that both requirements are satisfied. LICRA intentionally filed suit in the French court. Indeed, it had previously signaled its intent to file suit in its April 5 letter to Yahoo!. UEJF intentionally joined LICRA’s suit ten days later. Further, LICRA and UEJF’s suit was expressly aimed at California. The suit sought, and the French court granted, orders directing Yahoo! to perform significant acts in California. It is of course true that the effect desired by the French court would be felt in France, but that does not change the fact that significant acts were to be performed in California. The servers that support yahoo.com are located in California, and compliance with the French court’s orders necessarily would require Yahoo! to make some changes to those servers. Further, to the extent that any financial penalty might be imposed pursuant to the French court’s orders, the impact of that penalty would be felt by Yahoo! at its corporate headquarters in California.

The third requirement is that LICRA and UEJF’s acts “‘caus[e] harm that the defendant knows is likely to be suffered in the forum state.’ ” This requirement is somewhat problematic, for Yahoo! has not shown or even alleged any specific way in which it has altered its behavior in response to the French court’s interim orders. Yahoo! changed its policy with respect to Yahoo.com after the French court’s orders were entered, but Yahoo! has consistently maintained that the change was unrelated to the orders….

Yahoo!, however, points to the possibility that a substantial penalty will be assessed under the French court’s November 20 interim order. It points in particular to the provision in that order specifying that the potential amount of the penalty increases by 100,000 Francs for every day that Yahoo! is in violation of the court’s orders. Yahoo! represents to us that even now, after its change of policy, it is acting in plain violation of the orders. It contends that a declaratory judgment determining the enforceability by an American court of the French court’s orders will allow it to determine an appropriate course of conduct with respect to the activities in which it continues to engage. …

Yahoo! contends that it has a legally protected interest, based on the First Amendment, in continuing its current policy with respect to Nazi memorabilia and Holocaust-related anti-semitic materials. Until that contention is endorsed by the judgment of an American court, it is only a contention. But even if the French court’s orders are not enforced against Yahoo!, the very existence of those orders may be thought to cast a shadow on the legality of Yahoo!’s current policy. It is a close question whether LICRA and UEJF are subject to personal jurisdiction in California in this suit. But considering the direct relationship between LICRA and UEJF’s contacts with the forum and the substance of the suit brought by Yahoo!, as well as the impact and potential impact of the French court’s orders on Yahoo!, we hold that there is personal jurisdiction.

Thus, in an eleven-member en banc panel, there were eight votes for personal jurisdiction and only three votes against. But matters became far more complex on ripeness, which I will not summarize here. Suffice it to say that on ripeness there were five votes for ripeness, three votes against ripeness, and three members of the Court who did not reach the question. In a strange twist, the Court held that because a three-judge plurality concluded that the suit was not ripe, “[w]hen the votes of the three judges who conclude that the suit is unripe are combined with the votes of the three dissenting judges who conclude that there is no personal jurisdiction over LICRA and UEJF, there are six votes to dismiss Yahoo!’s suit.” Very unusual and complex result.
The importance of the case is that when Internet companies engage in questionable conduct that arguably comports with our First Amendment freedoms, but is nonetheless a violation of the anti-racism or anti-semitism laws of other countries, Yahoo! opens the door for a declaratory judgment against public interest groups that seek to enforce foreign penalties and fines in the United States. But in the end LICRA won this battle against Yahoo! by forcing it to take greater cognizance of the French requirements that Nazi propoganda not be available for sale on Yahoo! auction sites in France. With the specter of huge fines imposed daily, Yahoo! had little choice but to brings its action into compliance with French law. But going forward, the Ninth Circuit’s holding in Yahoo! on personal jurisdiction will give greater leverage to Internet companies to sue in the United States the next time such a conflict occurs.

Keeping Tequila Free: Mexico and U.S. Reach (All Important) Tequila Agreement

by Julian Ku

To the relief of margarita drinkers all over the U.S., the United States and Mexico signed an agreement Tuesday that will allow continued bulk shipments of tequila from Mexico into the United States. Since 2003, Mexico has been threatening to require all tequila from Mexico to be bottled in Mexico, thus threatening U.S. bottling company jobs (and that ever important supply of cheap tequila). The agreement (summarized here) seems to be a complete surrender by Mexico, which has completely given up its tequila plan. Maybe the Spanish version is different?

It Only Took 12 Years! Nigeria and Cameroon Agree to Implement ICJ Decision

by Julian Ku

Nigeria announced today that it had finally reached an agreement with Cameroon to implement a 2002 ICJ decision demarcating part of the boundary between the two countries.

To put it bluntly, it is about time. The original case was filed in the ICJ in 1994 and the final judgment was issued in 2002. Even after this judgment on the merits, the two countries have been haggling over the interpretation of that judgment for the past four years.

Although the ICJ probably could have moved faster on this case (but I’m not returning to that dead horse today), the final outcome is a reminder of why international tribunals can be useful.
It is also a lesson in their limitations. The ICJ provided a more less neutral mechanism for resolving a very complicated, longstanding territorial dispute. It took a long time, but they got a result.

On the other hand, in the end of the day, the ICJ’s judgment still required the joint political cooperation of the governments involved to achieve final implementation. This is not to say the ICJ judgment is meaningless, but it is important to keep in mind that even after the ICJ issues a judgment, the resolution of a dispute still requires lots and lots of diplomatic cooperation and political will.

Welcome "Truth on the Market"

by Peggy McGuinness

Opinio Juris welcomes “Truth on the Market” to the law prof blogosphere. My friend and colleague Thom Lambert, along with Geoff Manne, Bill Sjostrom, Keith Sharfman, Josh Wright, and one anonymous blogger, will be blogging about “law, business, economics and more.” We wish them a successful launch and happy blogging!

Supreme Court Denies Cert. in Holocaust Vatican Bank Case

by Roger Alford

Still more news today on Holocaust litigation. The U.S. Supreme Court denied certiorari in the Ninth Circuit case of Alperin v. Vatican Bank. The order list is here. The Ninth Circuit ruled earlier this year that the property claims by plaintiffs should not be dismissed under the political question doctrine but that the “war objective claims” should be dismissed. The Alperin case is arguably the most important outstanding Holocaust litigation case.

But more broadly, the Ninth Circuit decision is a complicated one that deserves serious consideration regarding the scope of the political question doctrine under ATS litigation.

Dan Collins at Munger, Tolles & Olson was on the brief for the Vatican Bank. My colleague Lee Boyd of Pepperdine was counsel of record for the plaintiffs. I don’t mean to be pushing our book yet again, but Lee Boyd has a chapter in Holocaust Restitution discussing the Alperin case.

Altmann Wins Battle for Klimt Paintings

by Roger Alford

An Austrian arbitration court has ordered the return of five multi-million dollar paintings by Gustav Klimt to the rightful owner, Maria Altmann. The best coverage is from the L.A. Times, which has interviews of Maria Altmann and her attorney Randol Schoenberg, both of whom reside in Los Angeles. Another report stated that the world-renowned 1907 portrait of Altmann’s aunt, Adele Bloch-Bauer, is the “the most important painting that has ever been restituted (in a Nazi art case)”.

The Altmann case gained notoriety after the U.S. Supreme Court ruled in Austria v. Altmann that the case could go forward, notwithstanding the government claims of sovereign immunity.

Schoenberg has a chapter in our book Holocaust Restitution, entitled Whose Art is It Anyway? He explains in the chapter how the parties in May 2005 agreed to resolve the dispute through binding arbitration rather than trial. “The agreement calls for each party to choose an arbitrator, with the two arbitrators then selecting a third arbitrator, and this panel of arbitrators will render a decision binding upon the parties. All three arbitrators will be Austrian nationals, and the panel will decide the case under Austrian law.” Schoenberg concluded the chapter with the following: “Holocaust-related litigation is incredibly difficult and time consuming, and the prospects of success, even in exceptional cases such as Mrs. Altmann’s, are very low. Nevertheless, in cases concerning Nazi-looted artworks, there is a glimmer of hope.” Indeed.

UPDATE: Randol Schoenberg has sent me an English translation of the arbitral award, available here.

The Megaphone of Blogging

by Roger Alford

If you read Larry Solum’s thoughtful post on the importance of blogging, you understand why young legal academics are embracing the medium. Among other things, Solum suggests that blogs provide a new method for legal research. “Ask anyone under 25 how they do research. Frankly, I’d be surprised if there were more than a tiny fraction of frank answers that failed to include Google.” But this comment is incomplete, for the “Google effect” is far more significant than this.

The best analogy is not that Google provides students a shiny new spade to dig for legal information. The better analogy is that Google provides information providers a giant megaphone to express their ideas. Successful bloggers can have a disproportionate impact through Google that is far greater than is appreciated in the legal academy. As Robert Scoble put it in a recent book interview, “The more you blog, the greater chance you have of being recognized–and listened to. So Google is paying back the blogosphere for adding content to it. It’s a virtuous circle.”

Let me give you an example. Take a common name, like Michelle, Ann, Lawrence, Joshua, Glenn, Roger, or Andrew. Now ask yourself, who is the most important person in history who has had that first or last name? If you take a minute in your own mind (or are lazy and go to Wikipedia) you quickly come up with a list of truly famous and deserving people like Saint Anne, Queen Anne, Michelle Pfeiffer, D.H. Lawrence, Joshua (as in the Book of Joshua), John Glenn, Roger Moore, Roger Sherman, Roger Clemens, Saint Andrew, or Prince Andrew.

But if you go to Google and type in Michelle, Ann, Lawrence, Joshua, Glenn, Roger, or Andrew, here is what you find at or near the very top of the search: Michelle Malkin, Ann Coulter, Ann Althouse, Lawrence Lessig, Joshua Michael Marshall, Glenn Reynolds, Roger L. Simon, and Andrew Sullivan. Google searches are based on links, and successful bloggers have far more inbound links than truly historic figures that Google should be noticing. Amazing as it may sound, Google actually thinks Ann Coulter and Ann Althouse are more important than Queen Anne or Saint Anne. Amazing as it may sound, Google actually thinks Lawrence Lessig is more important than D.H. Lawrence. And not, of course, because he is Lawrence Lessig of Stanford Law School, but because he is Lawrence Lessig of the popular Lessig Blog. (Needless to say, legal luminaries named Larry (Larry Tribe, Larry Sager, Larry Friedman, Larry Zelenak, Larry Helfer) don’t begin to have the Google impact of Larry Lessig).

Google gives successful law bloggers a giant megaphone for all the digital world to hear. By contrast, to the broader public the medium of the typical law review provides professors the platform of a dandelion from which they can shout “We are here! We are here! We are here! We are here!”

If a law professor has something useful to say, like Lawrence Lessig, blogging provides a remarkable new medium for expressing those ideas. Or to take an example a little closer to home, opinio juris is a doctrine that dates back centuries. To Google it is a law blog established just over a year ago by a few law professors.

So the “Google effect” of blogging is to provide a new tool for information consumers and a giant megaphone for information providers. Thus, if a particular subject strikes your fancy, say Roper v. Simmons and international law, a search on Westlaw will identify over one hundred articles to read, starting with the most recent. If you go that route, I would suspect you will start with four recent articles in the Harvard Law Review. But if you do the same search on Google, this post from Opinio Juris referencing my article in the UCLA Law Review ranks at or near the very top.

As this example suggests, through blogging authors can highlight their scholarship. It is not coincidental that four of the top eleven law authors on SSRN have law blogs. Sure these authors are very good, but should they rank right up there with Cass Sunstein?

The old saw that no one really reads what law professors write was perhaps once true. Not anymore, provided they have the proper platform. It’s not just the message that matters anymore. It is also the medium.

Thanks to Geoffrey Corn

by Roger Alford

Geoffrey Corn is signing off as a guest blogger today and we at Opinio Juris are very grateful for his posts. He has excelled at providing deep insight on numerous matters pertaining to the laws of war. As a new second-career law professor we welcome you to the club and look forward to reading your articles. Thanks Geoffrey!

Elie Wiesel’s "Night" Amazon’s Number One Bestseller

by Roger Alford

The announcement that Oprah Winfrey has selected Elie Wiesel’s Night as its book of the month has catapulted it to Amazon’s number one bestseller. I am thrilled that Oprah Winfrey has chosen this book, which was one of the most significant literary experiences of my young adulthood.
According to this article in the New York Times, “Winfrey said she plans to travel with Wiesel to Auschwitz next month, and her show will have a high school essay contest on Wiesel’s book. Fifty winners will be flown to Chicago, where her show is based, for a taping with the author, Winfrey said.”
Kudos to Oprah Winfrey. Her book selection will change lives, with millions introduced to a first-hand account of the horror of the Holocaust.

MLK Jr. and a Just World Order

by Chris Borgen

Last year I wrote a short piece on Martin Luther King Jr. and international justice; I copy the main part of it here:

…But why talk about Dr. King on a blog about international law? King’s voice was not the voice of the international lawyer, but of the pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers.

Quite simply, Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice. This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologoies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to “appreciate the reciprocal”: think of how the world would look from the standpoint of the average man or woman living in Vietnam. Towards the end of his speech, he expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a “Just World Order.” He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life’s roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life’s highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: “This is not just.” It will look at our alliance with the landed gentry of Latin America and say: “This is not just.” The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

A true revolution of values will lay hands on the world order and say of war: “This way of settling differences is not just.” This business of burning human beings with napalm, of filling our nation’s homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

While full of references to the problems of the day (the Communist threat; whether to seat Red China in the U.N.), Dr. King still gives us a lesson for our day. He argues that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openess to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others. And, at the end of the day, he put more faith in the possibility transformative discourse than in supposed pragmatism of regime change.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t subsumed by international law but encompassed it.

Martin Luther King Day allows us to remember the battles fought in the past: Freedom Marches, lunch counter sit-ins, and facing Bull Conner’s dogs. To a certain extent it allows us Americans to pat ourselves on the back and say “Look how far we’ve come.” But King’s message goes beyond Alabama in the mid-1960’s and is still radical, challenging, and of global relevance today. As an international lawyer, I read his words and think not only about how far we’ve come, but about how far we have to go.

The Military Commission: An Inauspicious beginning for a"Full and Fair " Process

by Geoffrey Corn

This past week, Military Commission proceedings were “fired up” again in Guantanamo. In two cases, one against Canadian detainee Omar Khadr, the other against Yemeni detainee Ali Hamza Ahmad Sulayman al Bahlul, military defense lawyers confronted the challenge of dealing with a process long ago repudiated by the Uniform Code of Military Justice, and by all accounts distinguished themselves (see here). This move signaled the Bush administration’s determination to move forward with the Commission process. It also, however, highlighted why this tribunal has been the subject of widespread criticism.

In what must be considered an inauspicious beginning to a process the government continues to assert is “full and fair”, one detainee was initially denied his choice of detailed military defense counsel (see here), while the other detainee was forced to accept representation he did not want (see here). In the case against Khadr, the detailed military defense counsel was forced to essentially state he could not effectively represent his client in order to convince the Presiding Officer to grant his client’s request that a much more experienced Marine Corps attorney be detailed to the case. Only after relentless assertions of this position did the Presiding Officer finally relent, but only after subjecting the defense counsel to extensive criticism. In the case of al Bahlul, the Commission rejected his request to represent himself and ordered his detailed military defense counsel to continue to perform in that capacity (which itself raises significant ethical concerns).

This ironically inverse application of the customary standards related to selection of counsel raises serious questions about just how “full and fair” this process can be. It also exposes one of the most significant concerns members of the defense team have noted from the inception of this process – the power of the Commission Presiding Officer. These officers need not be detailed from the military trial judiciary (although to date the officers selected for these duties have been current or retired military judges). In both these cases, unlike courts-martial, it was not a military judge who was vested with the authority to rule on these requests, but the senior member of the Commission, the Presiding Officer (see here). While the duties of the Presiding Officer are similar to that of a military judge, their appointment by the same authority responsible for prosecuting detainees reflects a fundamental difference with the independent military trial judiciary.

Observers familiar with the pre-1951 revision of the U.S. military justice system (see here) might recognize similarities in this procedure. Prior to this date (when the Uniform Code of Military Justice was adopted by Congress), the senior member of a military court ruled on all legal and evidentiary issues. Instead of serving as a military judge, the legal officer was designated as a “law officer”, with the limited role of providing advice to the presiding lay members. With the procedural construct of the Military Commission reflecting what might best be described as a “hybrid” version of the old and modern military justice stystems, it seems worth recalling that one of the most significant changes in the military justice system made by Congress more than fifty years ago was the creation of a truly independent trial judiciary, providing an independent military judge vested with authority to make all legal rulings in a court-martial, none of which are subject to voting member “override” as is the case with the Commission.

While confronting a tribunal that lacks the legal and procedural guarantees traditionally associated with the modern military justice system is no doubt challenging enough, a basic inequity in resources is apparently compounding this challenge. The obvious imbalance between government and defense resources was exposed by the officer in charge of the Military Commission defense team (see here), who noted the nearly four to one ratio of prosecutors to defense counsel. While the government defended these numbers, it would certainly seem that a genuine commitment to a “full and fair” process would compel providing for a more robust defense capability. The mere fact that a senior military officer charged with supervising this function would take the unusual step of making his “request” through the media suggests that behind the scenes efforts to reinforce his team have been ineffective. This again reflects a fundamental divergence between the Commission process and our normal military justice practice, where equity between prosecution and defense resources is a cornerstone of legitimacy.

None of this is intended to suggest that the members of the Military Commission are not attempting to perform their duties properly. There should be little doubt that they realize the gravity of their responsibilities, and are attempting to execute those responsibilities to the best of their abilities. The more profound question is whether the procedural construct of this tribunal will disable their ability to provide the “full and fair” adjudication promised by the government. If this past week is an indicator, their challenge is significant.

Martin Luther King and Civil Disobedience

by Roger Alford

Today the nation celebrates Martin Luther King Jr. I studied Martin Luther King extensively prior to law school and have always admired him greatly. One of the most important legal questions King raised in his struggle for civil rights was the appropriate means to secure just ends. In particular, King was more than willing to defy laws if he deemed them to be unjust. He was sharply criticized for this and defended his tactics in his famous Letter from a Birmingham Jail. Here is an excerpt:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may won ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there fire two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority…. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression ‘of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

What is most interesting about King’s defense is that he places all laws below a “higher law” of morality. He then defines that higher law based on his theology of separation, and concludes that segregation is a manifestation of separation, and therefore must be unjust. Notably, he does not say what we would typically say today: “That all laws are unjust if they violate constitutional rights.” We would subject laws to a constitutional order. He subjects it to a higher moral order. Indeed, King refers to the Constitution only three times in this letter, all in passing.

Nor does King address how you determine what is higher law. I doubt many will be willing to read Paul Tillich, Karl Barth, or Reinhold Niebuhr and subject all laws to their theology. To suggest that unjust laws may be disobeyed if they do not accord with “higher law” places a premium on determining what is the higher law. For example if sanctity of life is a higher law you may well oppose the death penalty as unjust, but if another principle is the higher law you might well defend it.

The third aspect of his letter that is so fascinating is that he openly admits that in defying the law he should be punished. Disobedience and punishment are the vehicle to social change. By going to jail, he hopes to arouse the conscience of the community. Here is King’s cycle of justice: (1) unjust laws are disobeyed, (2) punishment is imposed in respect for the law, (3) our consciences are pricked, (4) legislative corrections are proposed, (5) the laws are changed, (6) society is transformed.

Of course, in King’s case the conscience of society was pricked and laws were quickly enacted to create a better society. But today many who engage in civil disobedience to protest what they, in good faith, understand to be unjust practices will disobey a law and be subject to punishment. But as they languish in jail, their behavior does not significantly impact our collective conscience. Those who use themselves as “human shields” to protest the Iraq war are an example.

The other aspect of King’s tactics is that they are not for everyone. The cycle of justice makes sense for a “prophet” like Martin Luther King. But it is not the way a lawyer, judge, or politician should or would try to create a more just society. We would work within the system, near the end of King’s justice cycle, focusing on legislative change or judicial challenge. It is hard to imagine a lower court judge saying, “sentencing guidelines are wrong and unjust and therefore I will disobey them.” We all agree that a judge should not do that, just as a judge in Alabama or a politician in San Francisco should not openly defy the law. So we recognize that there is a role in society for some people, sometimes to engage in civil disobedience. But we also recognize that those who are sworn to uphold the Constitution and the laws of this country do not enjoy that privilege. King was right. But King’s tactics are not right for everyone.

Iran to Host Holocaust Conference

by Roger Alford

Iranian President Mahmoud Ahmadinejad has called for an international conference on the Holocaust. A Iranian Foreign Ministry spokesman said, “Iran’s Foreign Ministry has decided to hold a conference on the Holocaust to assess its scale by scientific means and discuss its consequences.” The event will be sponsored by Iran and the Organization of the Islamic Conference “in consultation with other countries to pursue this issue.” The goal will be to examine scientific evidence supporting the Holocaust.

Given that he has already publicly declared the Holocaust a myth, any guess what conclusions Ahmadinejad will reach at the end of the conference? We can only faintly hope that moderate Muslim states will use this conference as a vehicle to condemn Iran’s efforts at Holocaust denial.

UPDATE: Niall Ferguson has an interesting article on the Great War of 2007 that compares the parallels of the 1930s to today. Here is a taste: “The devastating nuclear exchange of August 2007 represented not only the failure of diplomacy, it marked the end of the oil age. Some even said it marked the twilight of the West. Certainly, that was one way of interpreting the subsequent spread of the conflict as Iraq’s Shi’ite population overran the remaining American bases in their country and the Chinese threatened to intervene on the side of Teheran. Yet the historian is bound to ask whether or not the true significance of the 2007-2011 war was to vindicate the Bush administration’s original principle of pre-emption. For, if that principle had been adhered to in 2006, Iran’s nuclear bid might have been thwarted at minimal cost. And the Great Gulf War might never have happened.”

Professor Demleitner on Alito’s Immigration Record

by Roger Alford

On the final day of the Alito hearings, Julian Ku’s colleague Professor Nora Demleitner at Hofstra School of Law testified on Judge Alito’s immigration record. Demleitner was a clerk for Judge Alito and part of her testimony focused on one aspect of his immigration jurisprudence that has been ignored in my previous posts: gender as a basis for asylum law.

Here is an excerpt:

DEMLEITNER: Since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation — or of his generation — and he’s a man of great decency, integrity and character. I say all of this as what I would consider to be a left-leaning Democrat, a woman, obviously, a member of the ACLU and an immigrant. And my view is not one that is unique with regard to people who have worked with him, or with regard to people who have worked for Judge Alito. All of his clerks, many of whom are politically liberal, have signed on to a letter strongly urging the Senate to confirm Judge Alito as Associate Justice. A number of non-Republican legal academics who have worked with or for Judge Alito have also issued an equally forceful statement on his behalf.

Let me explain to you why I believe that Samuel Alito deserves to sit on the highest court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities, immigrants or other vulnerable groups. Judge Alito does not have a political agenda. He gives very careful consideration to the lower court record and to prior judicial decisions.

Let me point you to two cases that may explain the judge’s philosophy. While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order, in part, to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States, but was denied by the immigration court and by the Board of Immigration Appeals. Without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions, or the Iranian regime would penalize her. The problem with her case was that there was really an absence of favorable case law and, even worse, a very thin record, that indicated only very limited opposition on her part to the Iranian regime. The judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law.

The case she was referring to is Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993). The import of Judge Alito’s groundbreaking decision is that a person who holds strong feminist views can be a basis for an asylum application. Essentially, Fatin won on creating new law, but lost on the facts as applied to her.

I have not been able to find a full copy of the opinion on the Internet (let me know if you find one), but here is a key section of the opinion:

The petitioner’s primary argument, in any event, is not that she faces persecution simply because she is a woman. Rather, she maintains that she faces persecution because she is a member of “a very visible and specific subgroup: Iranian women who refuse to conform to the government’s gender-specific laws and social norms.” Petitioner’s Br. at 12 (emphasis added). This definition merits close consideration. It does not include all Iranian women who hold feminist views. Nor does it include all Iranian women who find the Iranian government’s “gender-specific laws and repressive social norms” objectionable or offensive. Instead, it is limited to those Iranian women who find those laws so abhorrent that they “refuse to conform”-even though, according to the petitioner’s brief, “the routine penalty” for noncompliance is “74 lashes, a year’s imprisonment, and in many cases brutal rapes and death.” Limited in this way, the “particular social group” identified by the petitioner may well satisfy the BIA’s definition of that concept, for if a woman’s opposition to the Iranian laws in question is so profound that she would choose to suffer the severe consequences of noncompliance, her beliefs may well be characterized as “so fundamental to [her] identity or conscience that [they] ought not be required to be changed.” … The petitioner’s difficulty, however, is that the administrative record does not establish that she is a member of this tightly defined group, for there is no evidence in that record showing that her opposition to the Iranian laws at issue is of the depth and importance required.

If Julian could persuade Professor Demleitner to provide more details regarding the importance of the Fatin decision, I would be most interested in posting it.

U.S. Blocking Airplane Sales to Venezuela

by Chris Borgen

The U.S. has seemingly blocked two sales of military planes to Venezuela: one from Spain, and another from Brazil. In each case—turboprop trainers in the Brazilian case, and patrol planes in the Spanish case—the planes in question had U.S. military technology. As Venezuelan President Hugo Chavez complained this week:

We couldn’t sign the document. The contract is ready for Brazil to make Supertucano training aircraft for our air force. … The United States did not authorize Embraer to make the planes,” Chavez told officers at a military academy.

The U.S. is must authorize the sale of any airplane containing U.S. military technology, regardless as to whether that plane was built in the U.S. or overseas.

In and of itself, this is not of huge concern. It is merely one more story showing the deteriorating relationship between Washington and Caracas.

***
UPDATE

Spain will go forward with the sale, substituting in EU-made parts for the U.S. tech.

MG Miller Invokes – What’s Next?

by Geoffrey Corn

As Peggy’s earlier post indicated, MG Geoffrey Miller today asserted his privilege against self-incrimination in order to avoid being questioned by the defense attorney representing a soldier pending trial for using military working dogs to abuse prisoners. Is this significant?

First, as we know from press reports, MG Miller made this decision on advice of his military defense counsel, Major Michelle Crawford. According to her statement, MG Miller’s made this decision because he has been repeatedly questioned on this subject. However, he has never been questioned by the defense counsel who believes he is a necessary witness. This attorney is attempting to determine whether MG Miller can offer relevant exculpatory evidence on behalf of a soldier facing a federal felony conviction. As a career officer, MG Miller is without question aware of that the military justice system provides an accused soldier the right to call relevant witnesses and present relevant evidence. It is also reasonable to assume that he is also aware that unless made under oath and subject to cross examination, none of those prior statements will be admissible during this soldier’s trial. Thus, it seems reasonable to infer that MG Miller did not make this decision without full knowledge the impact on the pending court-martial.

Second, MG Miller has no doubt been advised that the only remedy now available for the defense in this pending court-martial is to request that he be granted immunity and ordered to testify (which would include a requirement to submit to defense pre-trial questioning). Contrary to the report related to COL Pappas, there is no “acceptance” of immunity in military practice. Instead, when a potential witness invokes his or her privilege against self-incrimination, a request is made to the General Court-Martial Convening Authority, who is the general or admiral in command who convened (ordered) the court-martial. If this officer believes that the witness is necessary, he or she will issue a grant of immunity (almost always testimonial immunity) and an order the witness to testify truthfully. It will therefore be very interesting to see if the defense makes such a request, and even more interesting to see if it is granted.

If the request is granted, MG Miller will be required to testify truthfully to all relevant matters. If, however, the request is denied, the defense must then make a motion for appropriate relief to the Military Judge presiding in the case, who will review the basis for the denial of the immunity. If the Military Judge then determines that MG Miller’s testimony is necessary to ensure the soldier is able to present a defense and receives a fair trial, he or she will order the General Court-Martial Convening Authority to grant immunity. If that order is not complied with, the Military Judge will almost certainly abate all proceedings against the soldier.

MG Miller is no doubt well aware of this process, and that his invocation will probably result in either a grant of immunity or an abatement of the proceedings. Whether these factors support or undermine the purported justification for his decision is for each observer to decide. It is certainly possible that he believes that counsel for the accused soldier is making a frivolous request, and that neither the Convening Authority nor the Military Judge will consider him a relevant witness. However, it does seem that this could just as easily be established by submitting to a defense interview and allowing the prosecution to object to his production. The only outcome of his decision which is not speculative is that if he does testify, it will only be under a grant of immunity; and that if granted immunity, he will have no choice but to testify.

Thus, whether MG Miller ends up on a witness stand depends on two primary considerations. First, will the defense be able to make the case that he is a necessary witness. Second, will the Convening Authority be willing to order a fellow general officer to testify under a grant of immunity, or will the pending court-martial be sacrificed in order to avoid such an outcome. If he is ordered to testify, will that testimony lead to new prosecutorial efforts? Only time will tell. But, there should be no doubt that this is indeed a significant development that should lead to some interesting decisions.

Happy 100th Anniversary to the American Society of International Law

by Chris Borgen

Today is the 100th Anniversary of the founding to the American Society of International Law. As part of the centennial celebrations, the ASIL has a website covering the history of the Society (and note the pictures at the bottom of the timeline). The first 50 years are currently covered with more to come.

I am a big fan of the ASIL and that is not only because before entering academia full time, I was its the Director of Research and Outreach. The ASIL was founded by then-Secretary of State Elihu Root and then-Secretary of War William Howard Taft (soon to be President Taft). The Society was subsequently chartered by Congress to inform and engage the American public on issues of international law. Through its institutional ups and downs, the ASIL has always done that through its journal The American Journal of International Law, probably the most influential international law journal in the world, and through its books, briefings, reports, and other activities. The membership of the ASIL comes from across the political spectrum and the Society has a “big tent” approach to the profession. More than anything, the Society is devoted to intelligent debate and discussion on international law, and you can take part in such debate and discussion at its Annual Meeting.

For those of you who have enjoyed the discussions of this blog but who are not members of the ASIL, you should check it out.

International law would have been much the poorer without the ASIL.

So, Happy Birthday ASIL. Can’t wait to see what the next hundred years will bring…

Alito (Again) on NSA Wiretapping and Youngstown

by Julian Ku

It’s all Alito all the time here at Opinio Juris (OK, not quite. Thanks to Chris and Peggy for breaking the Alito obsession, but here I go again).

Sen. Feinstein and Sen. Feingold questioned Alito again on the NSA wiretapping issue and invokes, once again, Justice Jackson’s concurrence in Youngstown setting out a framework for analyzing presidential powers. A couple of thoughts:

(1) Why is everyone obsessed with Justice Jackson’s concurrence in Youngstown? It is 50 year old concurrence. Why hasn’t anyone mentioned Dames & Moore, Justice Rehnquist’s 1981 gloss on this same framework, which wasn’t a concurrence? I know the Jackson concurrence is well-loved by legal academics, but it is not “binding precedent” nor is it “settled law”. Yet everyone seems to treat it as a “super-duper” precedent.

(2) As long as we are talking Jackson’s concurrence in Youngstown, I am glad Judge Alito clarified for Sen. Feinstein and others this essential point: not all statutes regulating the President’s exercise of Commander in chief powers is constitutional.

To be sure, The President’s power is at its lowest ebb when he seeks to act in the face of explicit congressional prohibition (arguably we are in that situation with the NSA wiretapping). But any reasonable judge has to then consider the constitutional question: Would a congressional prohibition on presidential wiretapping of international-domestic calls impermissibly encroach on the Commander in Chief power? It is theoretically possible (as Judge Alito seemed to point out) that the FISA restrictions on the President are unconstitutional.

This is a serious argument and one that a judge or justice must consider. It is not the President claiming that he can “override” federal statutes. Rather, he is claiming, as Judge Alito suggested, that the statute is unconstitutional and can’t bind him, just like a statute that violated the Fourth Amendment. Hence, every president has claimed the War Powers Act is unconstitutional and doesn’t bind them.

Oddly enough, Youngstown is one of the strongest precedents for the “Commander in Chief” argument. Yet everyone seems to wield it for the opposite proposition.

*UPDATE: Sen. Feingold goes back to this issue here, and seems to criticize Youngstown on exactly these grounds.

**UPDATE: Here is the transcript of the exchange

FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law. And you made comments about the balance of powers, that all branches of government are equal. There are three of us on this committee — Senator Hatch, Senator DeWine and myself — that also serve on the Intelligence Committee.
FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America’s intelligence activities. And so this question of presidential authority at a time of crisis — not necessarily a full declaration of war state to state, but a time of crisis — because very prescient right now. And I wanted to talk to you a little bit about the president’s plenary authorities as commander in chief — plenary meaning unrestrained and unrestrainable, his plenary authorities to defend the United States — and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role. Now, we have explicit powers, as you’ve said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It’s headed by a general. So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic). Now, again to the Jackson test. When the president’s power is in least is when the Congress has legislated. And this is where the national — excuse me — the Foreign Intelligence Surveillance Act, known as FISA, comes in.
FEINSTEIN: And FISA is very explicit. And let me read a part of it to you. Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted. It does provide — you used the word general. It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go — the attorney general can authorize, provided they go to the FISA court within 72 hours. I was concerned; there are two questions in this one statement.
FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?


ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute. But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed. So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on unconstitutional. Very few of us on this committee are not lawyers. I’m one of them. So let me just speak in common, everyday terms. There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done. As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words deter and preempt any future acts of terrorism or aggression against the United States.
FEINSTEIN: And he refused to do it. And, Mr. Chairman, if I could place this…
SPECTER: Without objection.
FEINSTEIN: … statement in the record, since we are going to be having hearings on what’s happened. I think this is an inappropriate bit of legislative history. I’d like to place it in the record.
SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.
FEINSTEIN: Thank you. So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans. The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions. The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force? And I don’t know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other. Of course, there’s a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation. But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law — or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that’s being dealt with?
ALITO: And I think legislative history can be appropriately consulted. And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation. Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question. And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that’s right. Because detention is a necessary following of an authorization of military force, so detention is logical. When you’ve got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without — and I’m not saying there isn’t a reason to do this.
FEINSTEIN: What I’m saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn’t that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter. Then, depending on how that issue was resolved, it would be — it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson’s method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization…

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would…

FEINSTEIN: But, if there wasn’t…

ALITO: There might be a constitutional issue. Let me stop there. There would be a Fourth Amendment issue, obviously. If you went beyond — if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson’s scheme, in the category where the president — you would have to determine if this is the argument that is made; whether the president’s power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.

FEINSTEIN: Now, in my lay mind, the way I interpret that — and correct me if I’m wrong — is that you essentially have a conflict, and that it hasn’t been decided whether one trumps the other.

ALITO: I think that’s close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I’m not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential — he said it expressly — presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.

Yesterday Latin America, Tomorrow the World!

by Chris Borgen

Adam Isacson at Democracy Arsenal has a post on looking at U.S. foreign policy through the optic of a Latin American policy specialist. He explains that that “The biggest frustration by far[of being a Latin Americanist]… is watching the United States today repeating mistakes worldwide that it used to make only in Latin America.”

He sets out a series of quotes and descriptions which could all be from today’s headlines from Iraq or Guantanamo but, of course, they all are actually drawn from past U.S. actions in Latin America.

One hopes that we would learn from history. Isacson’s post is a good reminder.

Former Gitmo Commanding General Invokes the Fifth in Abu Ghraib Case

by Peggy McGuinness

The Washington Post notes today that General Michael Miller, a former commander at the Guantanamo detention center who also assisted in setting up the center at Abu Ghraib, has invoked his right against self-incrimination and refused to give testimony in one of the military trials against a lower ranking soldier accused of abuse at Abu Ghraib:

Harvey Volzer, an attorney for one of the dog handlers, has been seeking to question Miller to determine whether Miller ordered the use of military working dogs to frighten detainees during interrogations at Abu Ghraib. Volzer has argued that the dog handlers were following orders when the animals were used against detainees.

Maj. Michelle E. Crawford, a defense lawyer representing Miller, said the general decided not to answer further questions because he has “been interviewed repeatedly over the last several years” about his role at Guantanamo Bay and his visit to Iraq and he stands by his many statements to Congress, Army investigators and lawyers. Miller’s “choice to no longer answer the same questions . . . was based on the advice of counsel and includes the fact that he has already, and repeatedly, answered all inquiries fully,” Crawford said.

Miller’s decision came shortly after Col. Thomas M. Pappas, the commanding officer at Abu Ghraib, accepted immunity from prosecution this week and was ordered to testify at upcoming courts-martial. Pappas, a military intelligence officer, could be asked to detail high-level policies relating to the treatment of detainees at Abu Ghraib.

The failure of the DoD investigations of abuse at Abu Ghraib to lead to any criminal charges against senior officials has been repeatedly criticized by international human rights organizations, some of whom view the prosecution of the smaller fish as evidence of a cover up. (See this press release from Human Rights Watch.) I am no expert on military law, but would be interested in knowing from those of you more expert in this field whether this invocation of the the right to non-self incrimination is no big deal, or a sign that the net may be widened.

Alito on the Use of Force (and on John Yoo) (Updated)

by Julian Ku

Stunningly, Sen. Joe Biden has actually asked a good question: Can the President invade Iran without a declaration of war by Congress? (He claims that Professor “Ho” makes this argument. I assume he means Professor John Yoo of Berkeley).

Somewhat surprisingly, Alito gives Biden a fairly complete answer, even though this will almost certainly come before the Court soon. He explains that the “declare war” clause must mean something, he points to The Prize Cases that seem to recognize some independent presidential power to use military force. He also points to the political question doctrine, and then backs off and says he would have to study this more (he also says that he hasn’t read John Yoo, which is another shocker!)

Anyway, I will post the transcript of the exchange when it is available.

Here is the full exchange:

BIDEN: . . .But having said that, let me go to an area that I hope you’ll engage me in. And it goes to executive power. I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of — at least on my side of the aisle — drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera. So it’s something I’ve dealt with a lot. Doesn’t mean I’m right about it, but I’ve thought a lot about it. And now there is a school of thought that’s emerging within the administration that is making — not illegitimate — an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.
BIDEN: And the fellow — a very bright guy — who is referred to as the architect of the president’s memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo. He’s written a book called The Powers of War and Peace. And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities. For example, he says that, The framing generation well understood that declarations of war were obsolete. He goes on to say, Given this context, it’s clear that Congress’ power to declare war does not constrain a president’s independent and plenary right, constitutional authority over the use of force. And he goes on and he argues, as you well know this argument — I mean, not from your court, just as an informed, intelligent man — there’s a great debate now of whether or not the administration’s internal position is correct. And that is, the president has the authority to go to war absent congressional authorization. And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn’t want to. That was the claim made. Similar claim made here, so I want to ask you a question. Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there’s an immediate threat to our national security?
ALITO: Well, that’s a question that I don’t think is settled by — the whole issue of the extent of the president’s authority to authorize the use of military force without congressional approval has been the subject of a lot of debate. The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can’t be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces. The president has the power of the commander in chief. And I think there’s been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

BIDEN: Is that the deciding question, if the Congress does not have the time to act?

ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval. A lot of scholars say that what’s important as far as congressional approval is not the form, it’s not whether it’s a formal declaration of war or not, it’s whether there is authorization in one form or another. The war powers resolution was obviously an expression of the view on the part of Congress…
BIDEN: If I can interrupt, Judge, since I’m not going to have much time. The war powers resolution is a legislative act. I don’t want to get into that. I’m talking about the war clause. And the administration argues and Yoo argues that, quote, I do not think the president is constitutionally required to get legislative authorization for launching military hostilities. And that’s a pretty central question. That means, if that interpretation is taken, the president could invade — and maybe there’s good reason to — invade Iraq — excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress. And that’s a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, No, no, no. The president’s authority falls into the zone where he needs it for emergency purposes, where he doesn’t have time to consult with the Congress. But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, Nope, the president has the authority, if he thinks it’s necessary, to move from a state of peace to a state of war without any congressional authorization.

ALITO: I hope I’m not giving you that impression, Senator, because I didn’t mean to…

BIDEN: Oh, OK, maybe you can…

ALITO: … say that. I have not read Professor Yoo’s book or anything that he or anyone else has written setting out the theory that you’ve described.
ALITO: I’ve been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars — there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn’t — in most of those instances were — the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier.

BIDEN: You and I both know that’s a different issue. The political question doctrine is a different issue than whether or not you think that — I’m asking you as a citizen whether you think that as the administration is arguing — for example, it argues that the case is made, and I’m quoting, that the Constitution permits the president to violate international law when he’s engaged in war. It just states it flatly. That’s what the memorandum of the Justice Department states flatly. The president has that sole authority. He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue — this is this administration’s position, so that’s why it’s relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations. And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let’s say we didn’t want the president to invade Iran.
BIDEN: The administration argues we could pass a resolution saying that, You have no authority to invade Iran, and the president could the next day invade Iran. Our only recourse would be to cut off appropriations. But, as you know, there’s no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it’s a totally useless tool for the Congress in today’s world. You know? You can’t say, well, I’m going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf. So it’s really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there’s not an imminent threat against the United States. And that’s my question.

ALITO: And, Senator, if I’m confirmed and if this comes before me — or perhaps it could come before me on the Court of Appeals — the first issue would be the political question doctrine that I’ve described. But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question…

BIDEN: OK.

ALITO: … including particularly one that is as momentous as this. I’ve set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that — and I haven’t read Professor Yoo’s book or anything that he’s written on this issue — I would have to study the question.

Law Blogging Without a Safety Net

by Roger Alford

Yesterday was not a stellar day for the law blog community. Here is what some of the most popular law blogs on the Internet were discussing: Volokh Conspiracy had a post that compared Ted Kennedy to Joseph McCarthy, Concurring Opinions had a post that had no less than 20 references to Jennifer Aniston nude, Professor Bainbridge had a post about Senator Joseph Biden cruising for chicks at Princeton, TaxProf Blog had a post about a flaming mouse, Conglomerate had a post about Coca-Cola with sugar, and How Appealing had a post on “scutinizing the virtue of girls” (yes, he is talking about that). By comparison, blogs like Althouse that long ago jumped the shark looked positively serious yesterday.
I know that law bloggers are posting without a safety net, but perhaps just a little more discipline might be in order? It is after all a new medium that we are trying to establish. I don’t want to sound like the Jiminy Cricket of law blogs, but these are all law blogs that I greatly enjoy, and law professors that I greatly respect.
As Larry Solum has admonished: “Blog in haste, regret at leisure.”

Where Milosevic Eats Cake with a Bosnian Muslim

by Peggy McGuinness

Over at Slate, Julian Mortenson, who served as a legal officer at the ICTY, is reporting this week on life at the ICTY prison in the Hague. It’s a fascinating read, particularly his description of the the way in which prisoners of different ethnic groups who are accused of commiting genocide and war crimes against one another’s groups have found common cause in their incarceration. This excerpt about Milosevic eating cake to celebrate the release of a fellow prisoner is the most bizarre:

I remembered how, as our small group was walking down one of the prison corridors, we heard the murmur of a small gathering. It turned out to be a cell block celebration for a prisoner who was being released later that week. As we passed by the open door of the recreation room, McFadden leaned in and told the group that he would drop by for a chat once he’d seen us on our way. I glanced into the room while McFadden was talking, and there, plopped in the middle of about five other inmates, sat Slobodan Milosevic. His hair and casual clothes were rumpled, a piece of sheet cake sat on a paper plate in front of him, and he was holding a bite halfway to his mouth on a plastic fork. Right next to him at the low table, also sitting on the hard plastic seat of an elementary-school-style chair, was one of the tribunal’s most prominent Bosnian Muslim defendants. And I thought to myself, the Yugoslav people, to the extent they ever existed at all, have vanished from the face of the earth. But somehow an ersatz version lives on within the walls of this high-tech jail, where Slobodan Milosevic—the Serb once known as the Butcher of Belgrade—can now share a quiet piece of cake with a Bosnian Muslim at a farewell party for their mutual friend.


Alito’s Discussion of Immigration

by Roger Alford

Thus far, Judge Alito’s testimony has not touched on immigration in any significant manner. But here is one exchange between Senator Coburn that addresses the issue of immigrants who appear before Judge Alito:

COBURN: … During Judge Roberts’ hearing, Senator Feinstein tried to get him to talk and speak out of his heart, and I thought it was a great question, so that American people can see your heart. This booklet’s designed to protect the weak, to give equality to those who might not be able to do it themselves, to protect the frail, to make sure that there is equal justice under the law. You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don’t care about the less fortunate, you don’t care about the little guy, you don’t care about the weak or the innocent. Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what’s important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don’t come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. And I know about their experiences and I didn’t experience those things. I don’t take credit for anything that they did or anything that they overcame. But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives. And that’s why I went into that in my opening statement. Because when a case comes before me involving, let’s say, someone who is an immigrant — and we get an awful lot of immigration cases and naturalization cases — I can’t help but think of my own ancestors, because it wasn’t that long ago when they were in that position. And so it’s my job to apply the law. It’s not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, “You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country.”

Later in the day, there also was an exchange between Senator Kohl and Judge Alito on Alito’s immigration decisions:

KOHL: Last question: When we met privately, I asked you what sort of Supreme Court justice you would make, and your answer was fair when you said, “If you want to know what sort of justice I would make, look at the sort of a judge that I have been.”… In immigration cases, The Post also found that you sided with immigrants who were trying to win asylum or block deportation only in one out of eight cases analyzed. This was much less than most judges in a national sample.

ALITO: …On the immigration cases, I take very seriously — and I don’t know what the statistics are in this area, but I can tell you this: that I take very seriously the scope of review that I’m supposed to perform as an appellate judge. And that is usually dictated by Congress. In the area of immigration, Congress has spoken clearly. And as to factual decisions that are made by an immigration judge, what Congress has told us is, “You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did.” And I very often see a record where I think it’s doubtful, I say to myself, “I might have decided this differently, if I were the immigration judge.” But I wasn’t there. I didn’t see the witnesses testify personally. And Congress has told me what my role is there. My role is not to substitute my judgment for that of the immigration judge. My job is to say, “Could a reasonable person have reached the conclusion that the immigration judge did?” And if I find that a reasonable person could have reached that conclusion, then it’s my job to deny the petition for review. And that’s what I do in those instances.

KOHL: I appreciate that. I would just comment, again, that your siding with immigrants who are trying to win asylum or block deportation — you sided only in one out of eight cases that they analyzed.

KOHL: And this was much less than most judges in the national sample who were about evenly divided in their decisions on these issues. This was what their analysis indicated. So, for whatever it’s worth, you were one out of eight, and a national sample of judges was about 50 percent. I only bring that up for your comment.

Of course, as I discussed here, the statistics for federal appellate reversals of immigration decisions is less than a 10 percent reversal rate, not 50 percent as suggested by Senator Kohl. Judge Alito’s reversal record is 3 out of 17 cases, or 18 percent, far above the norm.

Related Links on Judge Alito and Immigration:
Judge Alito and Immigration
Judge Alito and Forced Abortions
Judge Alito and Forced Sterilizations

Alito: "Framers Would Be Stunned"

by Roger Alford

Following up on Peggy’s post from yesterday and her earlier post today, Judge Alito was more explicit today in his rejection of the use of foreign and international law to interpret the Bill of Rights. Key quote: “I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.”

Here is an exchange between Senator Coburn and Judge Alito:

COBURN: …Article III, Section 2 really delineates the scope for the courts in this country. And what it says is “all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority.” So that really gives us the scope under Article III, Section 2. And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.

COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that’s exactly what Article III, Section 2, says. And so there’s no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, “Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law.” So the question I have for you, and I couldn’t get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don’t think it is proper for the Supreme Court to use foreign law. And I personally believe that that’s an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice. And I just wondered if you had any comments on that comment.

ALITO: Well, I don’t think that we should look to foreign law to interpret our own Constitution. I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don’t think that it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.

ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time. They wanted them to have the rights of Americans. And I think we should interpret our Constitution — we should interpret our Constitution. And I don’t think it’s appropriate to look to foreign law. I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it’s often difficult to understand exactly what you are to make of foreign court decisions. All countries don’t set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues. When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you’d have to understand the jurisdiction and the authority of the foreign courts. And then sometimes it’s misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it’s located. If you focus too narrowly on that, you may distort the big picture. So for all those reasons, I just don’t think that’s a useful thing to do.

More on Alito and Foreign and International Sources

by Peggy McGuinness

There is a bit more on foreign and international sources at today’s hearings. This from the SCOTUSBlog live blog:

10.43 Coburn says that reference to foreign law undermines democracy and a violation of the Constitution. He thinks its use violates the “good behavior” qualification for judges.

10.41 Alito doesn’t think foreign law is relevant either. The framers would be “stunned” to know that the Bill of Rights was to be interpreted by counting what the rest of the world does. The Bill of Rights was meant at the time to give Americans more rights than the rest of the world. There are also a host of practical problems with the use of foreign precedent.

10.40 Coburn doesn’t like judicial reference to foreign law, and doesn’t think the majority of American like it.


For reference, here are is a rough typology for application of foreign and international law sources in constitutional interpretation, which appears to be the limited context Coburn and Alito are discussing here:

1) Reference to foreign laws in death penalty cases (i.e., what is the standard for determining “cruel and unusual” under the 8th amendment, and should we include non-U.S. trends);

2) Reference to standards and norms created under international treaties to which the U.S. is not a party, or to which the U.S. has appended reservations (e.g., do the treaties tell us anything about what other “cruel and unusual” might mean?); and

3) Reference to the reasoning of international courts or foreign judicial opinions in interpreting constitutional questions (e.g., how have other judges interpreted the meaning of “cruel”?).

They are not talking about in this narrow context questions about the binding nature of certain U.S. treaty obligations, which branch gets to interpret the scope of a U.S. treaty obligation, or whether some treaties create enforceable individual rights. These are very important questions, often implicit in the exchanges at the hearing on questions of executive power.

We have discussed the appropriateness of references and citation to foreign and international law within the 3-part typology on Opinio Juris in the past. These posts have some useful background about the contours of the debate:

Earlier in the year, Julian and I discussed the Scalia-Breyer debate on foreign sources here, here, and here. And our guest Justice Richard Goldstone posited here that Scalia’s objection to foreign and international references is one of originalism v. modernism. We also discussed in some detail the Roper v. Simmons case, in which the Court struck down the juvenile death penalty, and the extent to which Justice Kennedy’s references in that opinion to foreign practice and international treaties was helpful (Julian here, and my response and reflection on the effect of international and foreign trends on US death penalty jurisprudence here.) Roger discussed the “insidious wiles” here and I responded here; our debate continued here and included a response from Professor Eugene Kontorovich here.

I’ll post the full transcript of this excerpt when it becomes available.

Update: In a rare, near simultaneous post, Roger has posted the full transcript in his post above.

Alito and Presidential Authority under Youngstown

by Roger Alford

Peggy has already posted on one of the most important international law aspects of the Alito hearings today. But there was also some very useful discussion of executive authority under the Jackson trilogy of Youngstown. Here is an exchange between Senator Leahy and Alito that addresses torture and presidential authority:

“LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department — and you’re familiar with that; you worked there years ago — they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture. They tried to redefine torture, and they asserted, I quote, “that the president enjoys complete authority over the conduct of war,” close quote. And they went on further to say that if Congress passed criminal law prohibiting torture, quote, “in a manner that interferes with the president’s direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional.” They seem to say that the president could immunize people from any prosecution if they violated our laws on torture. And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public. Once it became public — the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it’s beyond the pale — the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer — no longer — represented Bush administration policy.

LEAHY: What is your view now? And I ask this because the memo has been withdrawn. It’s not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?

ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States. Now, there can be — there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.

LEAHY: Well, let’s go into one of those specifics. Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?

ALITO: Well, if we were in — if a question came up of that nature, then I think you’d be in — where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you’d be in what Justice Jackson called the twilight zone, where the president’s power is at its lowest point.

ALITO: And I think you’d have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don’t make their way to the judiciary or they’re not resolved by the judiciary; they’re resolved by the other branches of the government.

LEAHY: But, Judge, I’m a little bit troubled by this because you said yesterday — and I completely agreed with what you said — that no one’s above the law; no one’s beneath the law. You’re not above the law. I’m not. The president’s not. But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law? I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo — which has now been withdrawn — was saying, “But that won’t apply to me or people that I authorize.” Doesn’t that place not only the president but anybody he wants above the law?

ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president — and it’s set out expressly in the Constitution — is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States. But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.

LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?

ALITO: Well, Senator, if you’re in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.

LEAHY: Let’s assume there’s not a question of the constitutionality of an enactment. Let’s make it an easy one. We pass a law saying it’s against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?

ALITO: Neither the president nor anybody else, I think, can authorize someone to — can override a statute that is constitutional. And I think you’re in this area — when you’re in the third category, under Justice Jackson, that’s the issue that you’re grappling with.

LEAHY: But why wouldn’t it be constitutional for the — or wouldn’t it be constitutional for the Congress to outlaw Americans from using torture?

ALITO: And Congress has done that, and it is certainly — it is certainly an expression of the very deep value of our country.

LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn’t have that power, would he?

ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue.”

Judge Alito’s response seems a little unusual. First, he describes the third prong as the “twilight zone,” which actually is the second prong of congressional silence. But more importantly, he suggests that in a third prong case, the President can never override a congressional statute. He says, “Neither the president nor anybody else, I think, can authorize someone to — can override a statute that is constitutional.” But the third prong in Jackson’s concurrence in Youngstown says,

“3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”

So does Alito have a narrower view of executive authority than is traditionally attributed to that branch under the third prong? I know Leahy wanted Alito to presume the statute was constitutional, which presumably meant Congress was acting within its enumerated powers. To which Alito responded that in such a case the President must comply with the statute. Is that correct? Even on matters that are part of inherent (not delegated) executive authority but overlap with concurrent authority of the legislative branch? I always thought this meant what it said, that the President’s power is at “its lowest ebb,” but not non-existent. I would be curious what others who are Youngstown experts think.

ICJ Watch: Djibouti Sues France

by Julian Ku

Sure, Judge Alito is getting grilled by the Senate, but let’s turn to really important stuff. Like the news today that the Republic of Djibouti has filed an application with the International Court of Justice against France alleging France violated its treaty obligations to provide judicial assistance in a Djibouti criminal investigation.

This looks like a fairly tedious and unimportant case. The only interesting aspect (to me, anyway) is whether France refuses to accept the ICJ’s jurisdiction. France famously withdrew from the compulsory jurisdiction of the ICJ back in 1996 (those unilateralist Frenchies, so disrespectful of international courts!) and this case can only go forward with France’s consent. If France refuses to accept ICJ jurisdiction, even here in this fairly minor case, it will be a slap at the ICJ’s authority and credibility.

(By the way, I know many of our readers are savvy well-educated, well-travelled internationalists. But how many of you really know where Djibouti is? How many of you knew it is located in between Somalia and Eritrea and the location of the main U.S. military base in that region? C’mon, you can admit it if you didn’t know…I certainly didn’t. )

Alito Responds to Senator Kyl on Use of Foreign Law: Siding with the Anti-Internationalists?

by Peggy McGuinness

SCOTUSBlog’s live blogging from the Alito hearings includes this exchange between Senator Kyl and Judge Alito on the appropriateness of foreign and international law in U.S. jurisprudence:

12:58: Sen. Kyl asks when it is appropriate to focus on foreign law. Alito says it is not helpful to interpret the constitution. The structure of our government is unique to our country. As for the protection of individual rights, we should look to our own constitution and precedents. It is legitimate to look to foreign law in some situations, i.e. interpretation of a treaty. In such a case, foreign law would not be controlling, but could be “useful to look to.” Sometimes in private litigation, the rule of decision may be governed by foreign law. But generally, it is not helpful to interpret the constitution.

Sounds similar to Chief Justice Roberts’ response to the same line of questioning from Kyl (see the post here.)

I’ll post the transcript excerpt when it is available

Update: Here is the transcript excerpt:

KYL: Thank you. Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it’s obvious from my question that I do not support the use of foreign law as authority in United States court opinions. I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer’s 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer’s repeated appeals — appeals brought by the convict — should be considered cruel and unusual punishment.
KYL: I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self-government and it’s utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it’s needlessly disrespectful of the American people as seen through the widespread public criticism of the trend. Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?


ALITO: I don’t think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights. The structure of our government is unique to our country, and so I don’t think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human — in fact, I don’t think there were any that protected human rights the way our Bill of Rights did.

ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.

There are other legal issues that come up in which I think it’s legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that’s been entered into by many countries, I don’t see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn’t say that that’s controlling, but it’s something that is useful to look to.

In private litigation, it’s often the case — I’ve had cases like this — in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, “This contract is to be governed by the laws of New Zealand or wherever.” Of course, there, you have to look to the law of New Zealand or whatever the country is. So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don’t think it’s helpful in interpreting our Constitution.

Humane Treatment and the Protection of U.S. Forces

by Geoffrey Corn

During this last week, while enjoying participating in the dialogue on this website, I have made several references to the humane treatment obligation imposed by the law of war (or, as known to many, international humanitarian law). I believe it is essential that the United States express uncompromising commitment to this norm, and ensure that it is understood and implemented by our armed forces (and other government agencies conducting operations related to the War on Terror).

In this final post, I would like to address why I believe so strongly that this norm is truly a “first principle” of the law of war. The answer, quite simply, is that any compromise to this principldestabilizees the careful balance between military necessity and humanity, a balance that I believe guides interpretation of all other provisions of the law of war. Preserving this balance is essential for the protection of our forces.

Many may assume that by protection I am referring to the encouragement of reciprocity. Not necessarily. Reciprocity is no doubt an essential benefit of compliance with the law of war, and therefore is considered a primary rationale for compliance with this law. However, in the context of the modern battlefield, this rationale may no longer be as persuasive as in the past. In fact, for at least a decade, U.S. military strategists have studied the concept of “asymmetrical warfare”, which is characterized by an enemy seeking to exploit U.S. commitment to compliance with the law of war to gain a tactical advantage. This is exactly the dynamic our forces confront in Afghanistan and Iraq. Asserting encouragement of reciprocity as the primary rationale for compliance with the constraints of the law of war is a hard sell to soldiers confronting such an enemy.

The protection I refer to is the protection of the moral and psychological well-being of the men and women called upon to fight our wars. In such a brutal endeavor, these men and women need a legal framework to facilitate distinctions between right and wrong. The law of war through the necessity/humanity balance – provides this framework. When the balance between this first principles is distorted to fit the needs of mission accomplishment, the accordant loss of clarity for the force compromises their ability to maintain these distinctions. History provides compelling evidence that the consequence of such distortion is a breakdown of military discipline. Military leaders have historically understood this truism, which explains why it is possible to trace the roots of the contemporary law of war to influences and decisions of great military minds. It is also why so many highly respected veterans from our armed forces strongly object to Bush administration interpretations of this law.

During the last four years, this purpose of the law of war has been significantly stressed, particularly in relation to the humane treatment obligation. Much of the debate over the Bush administration approach to the War on Terror has focused on decisions that appear to violate this obligation (which the administration does not even acknowledge as an obligation). Necessity has been the primary justification for these decisions. This aggressive interpretation of what is and what is not humane has surprised not only outside observers of our government, but many career military and civilian lawyers serving our armed forces. Most of these professionals believe humane treatment is in fact an fundamental obligation, and that compliance can best be achieved by applying traditionally endorsed standards. This requires no list of what is and what is not humane. Instead, a simple but highly effective test is applied to any decision guided by this obligation: if an opponent were about to do this to one of my troops, would I consider it wrong.

While this might appear overly simplistic, the key to why it is effective is the protective instinct military leaders feel towards subordinates. Note that this is not a pure “do unto others” test. Such a test would be ineffective, for most military personnel, if asked to consider what they could endure, will accept great hardship. However, military leaders are taught from the outset of their careers that “taking care of your people” is second only to mission accomplishment as a priority. This protective instinct was perhaps best expressed by General Robert E. Lee, who is noted to have said that the hardest thing about being a General is that you must order the destruction of the thing you love most, referring obviously to his soldiers.

A military leader who projects a detainee treatment decision to his or her own force will be guided by this protective instinct. This in turn will result in decisions with the greatest probability of complying with the humane treatment obligation. Consider just a few examples. No matter what type of conflict, or what type of opponent, U.S. leaders would expect their subordinates, if captured, to receive adequate food, water, shelter, and medical care; to be removed (when feasible) from the area of immediate conflict; to have the opportunity to communicate with an impartial relief organization so that the world knows of the detention; not to be physically harmed; not to be publicly humiliated. They would, however, fully expect their soldier to be interrogated, and that the interrogation would involve the use of manipulation, rewards and incentives, and trickery. As for the most difficult questions related to the line between permissible and impermissible interrogation techniques, this standard should help to maintain a perspective consistent with the “spirit” of this obligation.

Does such an approach eliminate all uncertainty? No. However, it does create a decisional framework based on good faith adherence to the underlying spirit of the law of war. That spirit is clear: participants in conflict are all potential “victims of war”, and therefore when captured, they should be treated no better, but certainly no worse, than the capturing commander would expect his forces to be treated. In short, detained enemy personnel do not cease to be human beings. In the end, this spirit protects not only enemy detainees under U.S. control, but provides U.S. forces with the ability to reconcile the brutality of war with their own sense of right and wrong, which is essential for their own protection.

Prominent U.S. Law Scholars Reject Legality of NSA Spying

by Julian Ku

A group of prominent law scholars and attorneys has issued a letter rejecting the U.S. government’s legal justification for the NSA spying program (the legality of which Professor Weinberger and I debated here and here). This is not your typical letter by the liberal law professoriate (although the usual suspects like Harold Koh, Laurence Tribe and Kathleen Sullivan appear). The list of those signing also includes Richard Epstein, the famously libertarian U. Chicago law scholar and Curtis Bradley, a leading centrist Duke U. international law professor.

The letter critiques the Department of Justice’s legal justifications for the NSA wiretapping program, in particular, the U.S. government’s reliance on the Sept. 11 Resolution authorizing military force, to circumvent or avoid the restrictions created by the Foreign Intelligence Surveillance Act (FISA). Of course it is well-crafted, reasonable, and persuasive. It takes a couple of unnecessary shots at John Yoo, I think, but it is still very sensible in focusing on the statutory rather than constitutional arguments. But while I am halfway persuaded, I do wonder if the law prof letter relies too heavily on a FISA provisions limiting wiretaps to 15 days after the declaration of war.

Here is the key graf:

[E]ven where Congress has declared war—a more formal step than an authorization such as the AUMF—the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization. [footnote omitted] Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the President’s asserted “implied” authority.

As I’ve argued earlier, it is not entirely obvious to me that an authorization for the use of military force (the “AUMF”) must be understood as transferring less authority to the executive branch than a declaration of war. The AUMF could easily be read (certainly this AUMF) to authorize very broad activities by the executive branch in that in some cases exceed the powers it could exercise in a declared war against another government. The nature of the conflict with Al Qaeda (relying heavily on intelligence to identify the location of the enemy, which does not operate consistently in another state) seems to call for just such a reading.

If I’m right (a very big “if” given the intellectual firepower on the other side of this question), then the “declaration of war” provision of FISA is not quite the silver bullet the law profs suggest it is. Of course, they still have a very strong case, but I’m not sure it’s a winner.

The Afghanistan Detainee Transfer Challenge

by Geoffrey Corn

Recent news reports indicate that the U.S. is pressing ahead with plans to build a high security prison in Afghanistan (see here and here). According to these reports, this is in preparation for transferring hundreds of “enemy combatants” from U.S. to Afghan custody. These detainees are currently held in U.S. operated detention facilities in both Afghanistan and Guantanamo Bay.

While the construction of a high security prison and the training of an Afghan guard force may remove the primary practical impediments for such transfer, this concept raises significant legal questions. Virtually all of the detainees that will in theory be transferred to Afghan control were captured by the U.S. armed forces during combat operations in Afghanistan. Because the President determined that captured Taliban fighters were conclusively not qualified for Prisoner of War status under the Third Geneva Convention, and this treaty did not apply to the conflict between U.S. forces and Al Qaeda operatives, none of these individuals are classified as Prisoners of War. Instead, they are generally regarded as “enemy combatants”, a term of convenience created by the Department of Defense to refer to members of armed organizations opposing U.S. forces who do not qualify for Prisoner of War status.

Since the inception of Operation Enduring Freedom in Afghanistan, the U.S. has been criticized for failing to articulate a legal basis for these detentions. The primary response has been a general military necessity theory – that the U.S. has authority to deprive these “enemy combatants” of the ability to rejoin the ongoing conflict. Presumably, the U.S. will attempt to convince the Afghan government to adopt the same theory for the continued detention of this population. Or, perhaps the Afghan government will establish an alternate legal basis for their continued detention.

Even assuming the establishment of an acceptable legal basis for continued detention after transfer, many other issues will need to be addressed. Will the Afghan government simply accept the “continued threat” determination of the U.S.? Or, will an independent mechanism be established to review such determinations. If so, will it be a military or civilian review entity, and what procedures will it utilize?

If such a review process is established, what criteria will it create to justify continued detention? Will a potential threat of rejoining dissident Taliban forces justify detention without charge? Or, will these detainees be subject to a criminal process for their combatant activities prior to capture? If so, will the desire to “prosecute or release” lead to charging war crimes before an Afghan version of the Military Commission? Finally, and perhaps most significantly, what will be established as the “termination point” for these detentions.

While the prospect of a large scale transfer of detainees from U.S. to Afghan control may seem troubling, the commitment of the U.S. to build this detention facility is clear evidence that such a policy is almost certainly going to be implemented. It is almost just as certain that the U.S. will provide substantial legal support to the Afghan’s in order to help “set the conditions” for this process. Based on the lessons of the last few years, look for the U.S. military and civilian lawyers tasked with providing this support to seek out inter-agency, academic, and NGO expertise to answer these questions and set these conditions as effectively as possible.

Courts-Martial v. Military Commissions

by Geoffrey Corn

Thanks Professor Ku for raising some great questions in response to my Courts-Martial v. Military Commission post. I will try and clarify some of my views.

First, my discussion of this alternate tribunal was directed more towards Chancellor Merkel’s comment that some alternate means must be developed to deal with the detainees at GTMO. I agree with you that use of courts-martial would probably not eliminate the need for a detention/confinement facility like the one at GTMO. I am not sure if original use of courts-martial would have impacted the need for a detention facility at GTMO. What I do know is that the President has made a determined effort to prohibit judicial review of cases brought before the Military Commission. This was explicit in the Military Order that created the Commission. However, it might have also motivated the choice of GTMO as the detention center because of the administration belief that federal court jurisdiction did not extend to that location.

I do, however, believe that the detention operation at GTMO and the Military Commission concept are linked in the minds of many observers and critics of U.S. policy. I believe the creation of a “special” tribunal for the sole purpose of dealing with the type of individuals detained at GTMO, under plenary executive branch authority, contributed to the perception that the entire GTMO operation was of dubious legality. While it is pure speculation, I also believe that if the U.S. had originally decided to use the courts-martial process to hold detainees accountable for alleged war crimes, it would have enhanced the perception that the U.S. was making a good faith effort to address the challenges associated with these detainees within the limits of the law. Even at this late stage, I think it would have a positive effect.

I also agree with you that most critics are looking for a civilian process. However, it would have been much easier for the U.S. to make the case that use of courts-martial reflected a reasonable balance between the desire to treat offenders as “war criminals” by allowing them to be judged by members of the military profession and the need to uphold basic principles of justice. Would I support civilian process? If the prosecution can properly allege a war crime, I believe any tribunal that satisfies basic principles of justice vested with jurisdiction to try such offenses is appropriate. My personal preference would be for a military court, because I believe the use of such courts to hold individuals accountable for violations of the law of war contributes to the validity of that law. But I also recognize that prosecution in an Article III court for violation of the War Crimes Act would be equally appropriate.

Finally, contrary to what my original post may have suggested, I do not believe the current Military Commission is a valid tribunal. Even assuming the acts of detainees at GTMO can be properly characterized as violations of the law of war, I do not believe the current Commission structure satisfies minimum standards of justice necessary to qualify as “a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (see here for Common Article 3). The most obvious deficiencies, as I mentioned in my original post, include the plenary authority of the President and Secretary of Defense over the process, and the lack of any meaningful judicial review. In short, I believe the U.S. must accept the “bitter with the sweet.” It cannot legitimately invoke the authority of the law of war to create a Military Commission and charge violations of that law without affording the judicial guarantees required by that same source of law. I believe a General Court-Martial satisfies these requirements.

Would it make a difference to the Germans or other critics? Maybe not, but I believe it would be an alternative that would, over time, earn far more respect than our current approach.

Most Popular Law Blogs

by Roger Alford

There is great commentary today at Prawfsblawg, Concurring Opinions, and Tax Prof Blog on the topic of law blogging. In light of that discussion, I thought it might be interesting to know what are the most popular law blogs based on traffic reports available here.

I am excluding blogs by law professors that are not true law blogs (e.g., Instapundit (#4), Hugh Hewitt (#34), Althouse (#85)), as well as those blogs that straddle the fence (e.g., Is that Legal? (#880)).

But I do not distinguish between law blogs by professors or practitioners because I suspect that law blog consumers do not make that distinction. I also include the ranking of the blog among all blogs on the Internet.

This list includes all the law blogs that are in the top 2,500 of all blogs on the Internet. There may be a few blogs that almost certainly should be on this list (Becker-Posner Blog, SCOTUSblog, The Right Coast, Legal Theory Blog), but traffic information is not available. If I missed a law blog that should be included please let me know.

Here are the results:

1. The Volokh Conspiracy (#46)
2. How Appealing (#146)
3. Balkinization (#189)
4. Professor Bainbridge (#192)
5. Sentencing Law and Policy (#367)
6. TaxProf Blog (#371)
7. Discourse.net (#420)
8. Conglomerate (#448)
9. PrawfsBlawg (#475)
10. Concurring Opinions (#524)
11. ACSBlog (#762)
12. Leiter’s Law School Rankings (#765)
13. Appellate Law and Practice (#1083)
14. Southern California Law Blog (#1084)
15. Opinio Juris (#1183)
16. Ideoblog (#1194)
17. ContractsProf Blog (#1225)
18. CrimLaw (#1378)
19. Business Law Prof Blog (#1820)

UPDATE: I will update this list today and tomorrow as I receive comments and corrections. Here are the changes from the original post so far:

a. In the original post I inadvertently placed The Right Coast and the Legal Theory Blog on the list at #8 and #11, respectively, based on link ranking. They do not have a traffic ranking. The list has been corrected.

b. In the original post Discourse.net was omitted. It is now included.

c. One prominent law blogger currently on this list emailed and suggested Conglomerate should be included as a law blog and not a straddler. It is now included and the ranking has been updated.

d. In the original post Sentencing Law and Policy was omitted. It is now included.

e. In the original post Ideoblog was omitted. It is now included.

UPDATE: Another email comment from a prominent law blogger suggested that TLB traffic ranking is imperfect because of RSS feeds which never register on the traffic reports. I agree, but do not know of a better way to roughly gauge how many people are actually reading the law blogs, unless the numbers for TLB traffic rankings and RSS feed readership estimates can be combined together. If there is an easy way to access and combine those two groups of readers in traffic estimates for all the major law blogs I would like to know.
UPDATE: TaxProf Blog has modified this ranking and excluded law blogs by practitioners (How Appealing, ACS Blog, Appellate Law and Practice, Southern California Law Blog, CrimLaw). The ranking of the most popular law blogs by law professors is available here.

Court-Martials v. Military Commissions

by Julian Ku

I just wanted to jump in with a quick response to Geoffrey Corn’s excellent post in favor of general court martials over military commissions. If I read his post correctly, he is criticizing the Guantanamo detention centers and the use of military commissions on pragmatic foreign policy grounds rather than on purely legal ones. In other words, he is not contesting the legality of such tribunals under domestic or international law, but he is arguing for different procedures in order to satisfy the concerns of foreign allies.

I think this is a very strong criticism, and one I partially share. But I do have a couple of questions:

(1) Is there any reason to believe that allies like Germany would be satisfied by the use of general court martials instead of military commissions? I realize that there are certain procedural differences that may seem significant to military law experts, but to an outsider, it still looks like a rather stacked process against the detainees. Aren’t critics of U.S. policy really looking for a civilian judicial process, either international or domestic? And would Geoffrey support such a civilian process?

(2) Most importantly, would the use of general court martials have obviated the need for a Guantanamo bay or Guantanamo Bay-like facility to detain combatants that may or may not be charged with crimes? Isn’t it quite likely that allies like Germany would have protested any U.S. military detention center seeking to hold detainees no matter where it is located?

Anyway, just a quick response. I would be curious to hear Geoff’s thoughts.

Losing Latin America

by Chris Borgen

Following up on my earlier post on brewing problems in Latin America, Bolivia’s ex-coca farmer President-elect has sought China’s assistance in developing Bolivia’s gas reserves. The Bolivians emphasize that China is not the only country they are interested in for energy development partnerships, France and Spain are also possibilities. President-elect Morales has also said that companies currently invested in Bolivia—largely U.S. companies—will have to renegotiate their contracts.

Meanwhile, in Mexico, the front runner for the presidency is a leftist who had made his name in part by vocal opposition to the U.S., although he is now moderating his view, at least for the campaign. (See also here.)

All of this has caused some area experts to ask if Washington is “losing Latin America.” An echo of the Congressional query of “who lost China” when the Communists took over, the term “losing” Latin America may be hyperbolic but it does point out some important shifts.

The reason the term is an overstatement is because Latin America was never “ours” to begin with. Sure, we had some governments—good and bad—closely aligned to our policies in the Cold War but there was a love/hate relationship between the Latin American street and the U.S., and for good reason. But the ups and downs of our relationships with Latin America in the 20th century has largely been in the form of a series of North-South bilateral relations. At worst, we had the added headache of Soviet assistance (and of course those pesky Cuban nukes in the 1960’s). Now, though, we are seeing a shift towards deeper South-South relations. As the Free Trade Area of the Americas has sputtered, the South American Mercosur grouping has focused on deepening its ties, with possibly radical results. See also this piece from the Global Policy Forum and this article from the Miami Herald.

This South-South coordination is occurring alongside a general swing to the left after the market-reform initiatives of the 1990’s. This is exacerbated by increased anti-Americanism in reaction to U.S. military policy and, particularly, the perceived imperialism of the War in Iraq.

We tend not to focus on Latin America or the Caribbean until something blows up but now is the time to rebuild our diplomatic ties with the rest of Central and South America. The irony is that when the Bush Administration was first elected, the concern of the Europeans was that this Spanish-speaking Texan who’s buddies with the President of Mexico would focus on building regional relations, to the detriment of the Atlantic Alliance. But, in the wake of September 11th, we have actually been focused on the Middle East to the detriment of the Atlantic Alliance and Latin American relations.

Venezuela is using its oil resources to radicalize Latin American politics. Brazil is organizing economic regionalism to counter-balance the U.S. Bolivia is moving to decriminalize coca production. Mexico may take a sharp turn towards the left.

Latin America was never ours to lose. But if these situations remain unaddressed, then we all have a lot to lose.

Microsoft Defends Censorship of Political Speech in China

by Roger Alford

Earlier I posted on Microsoft’s major ethical lapse of aiding and abetting the infringement of basic civil liberties in China. Most recently, as reported in the New York Times, without warning Microsoft shut down a blog for reporting breaking news without commentary regarding the firing of an editor at Beijing News.
Microsoft’s response is that “As a multi-national business, Microsoft operates in countries around the world. Inline with Microsoft practices in global markets, MSN is committed to ensuring that products and services comply with global and local laws, norms, and industry practices. Most countries have laws and practices that require companies providing online services to make the internet safe for local users. Occasionally, as in China, local laws and practices require consideration of unique elements.”
Microsoft staff members are now wading into the debate, see here and here. The posting by Alfred Thompson, who reportedly works in Microsoft’s “academic relations department,” reads like a company shill blog. But of greater importance is the response of Michael Connolly, a product unit manager at MSN Spaces, who provides this more forthright justification:
Running a Service in China
Robert Scoble recently highlighted one of the more complicated issues we face here on the Spaces team: running a service in a country like China.

As I have described in a previous post, there are two main ways we moderate content on Spaces:

Through the “report abuse” link at the bottom of every space. If you see inappropriate content, such as pornography, or out-right illegal content, like hate-speech or child pornography, let us know and we’ll investigate the problem and take appropriate action. Our main filter we use is, is this blog adhering to our Code of Conduct?
We ban a set of “naughty” words from blog entry titles, so those who are maturity-challenged don’t use the F word all over the place, and show up in search results and the updated spaces list, spoiling the party for everyone.
This system has been what we have been using since we launched Spaces, and we have not changed our practice, nor gotten more aggressive in the way we moderate. It’s been working for us, and for the Spaces community.

We are an international service, and we work hard to comply with the local laws (for illegal content) and local cultural norms (for inappropriate content) in all the markets we operate in. So, when using our two moderating techniques, we are cognizant of what market the content is published in. There are certain rules we have that generally apply to all markets: for instance, no pornography. We just didn’t want to go there with MSN Spaces. But, there are other guidelines that are more market-specific. For instance, the “middle finger” is a very obscene gesture in some areas, and is deemed culturally inappropriate, while in the United States, you would be hard pressed to see any photo of a bunch of college kids where one of them isn’t flipping the camera the bird. No harm, no foul. We don’t want to rule out the middle finger in all markets, so we just do it in the ones where it’s beyond the pale. And, even in the markets that don’t approve of the middle finger, we give the poster a friendly warning about the image, as opposed to taking the site down immediately.

In China, there is a unique issue for our entire industry: there are certain aspects of speech in China that are regulated by the government. We’ve made a choice to run a service in China, and to do that, we need to adhere to local regulations and laws. This is not unique to MSN Spaces; this is something that every company has to do if they operate in China. So, if a Chinese blog on MSN Spaces is reported to us by the community, or the Chinese government, as offensive, we have to ask ourselves: is this blog adhering to our code of Conduct? In many cases, the answer is “yes, this site is fine”. But, in some cases, the answer is “no”. And when an offense is found that actually breaks a national law, we have no choice but to take down the site. A very similar issue was raised in the blogosphere in regards to how Google tackles this problem: a really good discussion on Slashdot ensued, it’s worth a read if you have
some time.

Where do I begin critiquing this defense? In essence, Microsoft’s Michael Connolly’s response is as follows:
1. Prior Restraints R Us. We’ve used this system since we launched Spaces, and we have not changed our practice, and we don’t plan to change now just because it is clear that fundamental political speech rights are now at issue.
2. Speech is Speech. We make no attempt to distinguish between sexual speech, commercial speech, and political speech. Any “offensive” speech is subject to monitoring and censorship. We can’t have any political bloggers in China “spoiling the party for everyone.”
3. Only Obscene Speech Gets “Friendly Warnings.” Obscene speech enjoys greater protections than political speech. We give prior warnings to a blogger who posts an obscene image, but a political post by a Chinese blogger will be shut down without warning.
4. Everybody Does It. Microsoft is not alone in censoring political speech in China. Google does it. So does Yahoo. Everyone has to kowtow to Chinese authorities if you want to run an Internet business in China. We are helpless.
5. Due Process, What’s That? If Chinese authorities contact us and inform us that a political post is “offensive,” then ipso facto the Chinese political blogger has violated national law and we have “no choice but to take down the site.” Never mind that no law or regulation has been cited by the Chinese authorities that was transgressed. Never mind that no judicial process was afforded to the blogger to establish that the post was in fact a violation of national law.
6. China Poses “Unique Issues.” We have to respect that China is different from other countries. It severely regulates “certain aspects of speech.” Just like South Africa posed “unique issues” in the 1980s. I suppose we could follow the lead of corporations who did business in South Africa and took a stand against apartheid by implementing the Sullivan Principles of Social Responsibility. But believe me, we have no choice but to aid and abet the infringement of fundamental free speech rights if we want to do business in China.
Thankfully, Robert Scoble, Microsoft’s internal ombudsman blogger, has a post that does not try to defend the practice. “I’ve been raised by people who taught me the value of standing up for the little guy. My mom grew up in Germany. Her mom stood up to the Nazis… Oh, and … Zhao Jing, aka Michael Anti I’d like to offer you a guest blog here on my blog. I won’t censor you and you can write whatever you’d like. Guys over at MSN: sorry, I don’t agree with your being used as a state-run thug.”

Mr. President, Tear Down that Prison

by Geoffrey Corn

In a recent Der Spiegel interview, on the eve of her first visit to the United States, newly elected German Chancellor Angela Merkel stated that the U.S. detention center at Guantanamo must be shut down. According to Merkel, although she had no plans to demand such an action during her visit to Washington, she would not hesitate to express her opinion on this subject in the future.

Opposition to the Guantanamo facility is a policy Merkel shares with her predecessor Gerhard Schroeder. Unfortunately for the Bush administration, the change in government in Germany will obviously not eliminate the policy disputes that have significantly strained this historically strong relationship. While Bush administration supporters might dismiss these comments as another example of the inability of “old Europe” to comprehend the challenges of the Global War on Terror, Merkel’s comments remind us once again that the “Guantanamo paradigm” is considered by most allies and observers as fundamentally inconsistent with the core values of our nation.

In the interview, Merkel indicated her belief that alternate methods must be used to deal with the individuals detained at Guantanamo. Is this really such an outrageous suggestion? The answer to this question is no. In fact, the most appropriate alternate method for prosecuting captured personnel for violations of international law is one that the Germans are quite familiar with: the General Court-Martial. To this day, criminal trials are routinely conducted by such courts in Germany. Obviously, and for good cause, this type of U.S. military tribunal is considered by the Germans consistent with basic principles of justice.

Pursuant to the Uniform Code of Military Justice, the General Court-Martial is vested with jurisdiction to try any person for a violation of the law of war resulting in individual criminal responsibility. Ostensibly, this is the identical jurisdictional predicate that must be established to properly bring a charge before the Military Commission. Accordingly, there is no unique legal impediment for convening a General Court-Martial with jurisdiction over captured personnel and transferring those cases pending before the Military Commission to that jurisdiction. While characterizing the conduct of such individuals as “war crimes” is certainly controversial, it remains the sine quo non for the exercise of military jurisdiction by either tribunal. Why, then, has this option not been utilized?

While resort to a certain degree of speculation is necessary to answer this question, it is interesting to note that two of the primary justifications for the use of the Military Commission no longer seem meaningful. The first of these was speed of process. Contrary to the purpose of resurrecting this type of tribunal, in the approximate four years since that decision not one trial has been completed. While much of this delay is attributable to defense challenges, it does seem appropriate to consider whether a General Court-Martial would have in fact been more efficient. The second justification that no longer seems meaningful was the purported need for a “quasi-secret” process to protect evidence and participants. Considering the Department of Defense has willingly provided information about the legal and lay participants in the process, there seems little difference on this point between the Military Commission and the Court-Martial. As for the protection of evidence, the concern was essentially hollow from the outset, as effective procedures exist for the protection of both witnesses and evidence in a court-martial.

If timeliness and protection of participants and evidence are not meaningful justifications for clinging to the Military Commission process, what other factors might inhibit the government from adopting that alternate method called for by Merkel? Three significant differences between procedures for General Courts-Martial and the Military Commission may very well provide the answer. First, unlike the Military Commission, the Secretary of Defense would not be vested with plenary authority over the court-martial process. Instead, longstanding procedures would operate to insulate that process from any improper command or political influence. Second, unlike the Military Commission, a conviction by a General-Court Martial would be subject to mandatory judicial review by a service court of criminal appeals, and potentially by the Court of Appeals for the Armed Forces, and even the Supreme Court of the United States. Finally, the applicable procedural and evidentiary rules for the court would not be “created” by the Department of Defense, but would be the well-established rules of procedure and evidence that have earned modern courts-martial the respect of most serious observers.

Perhaps it is the absence of these important aspects of the General Court-Martial that compelled Chancellor Merkel – who has clearly expressed her determination to improve relations with the Bush administration – to so openly criticize the Guantanamo paradigm. The most feasible remedy to such criticism would be to designate an appropriate senior commander, such as the Commander of the United States Southern Command, as a General Court-Martial Convening Authority for individuals captured by U.S. forces. The current commission prosecutors could be transferred to that command. The commission defense team could be transferred to the one of the service trial defense organizations in order to maintain appropriate insulation from command influence. Finally, a pool of serving military judges from the service trial judiciary organizations could be detailed by their respective services to serve on the cases selected for trial by the commander designated as the General Court-Martial Convening Authority. Individuals could then be charged with violations of the law of war, and tried in accordance with legally established procedures. Perhaps even the Bush administration would be impressed by the outcome of such a shift in policy.

Muslim Immigration Changing the Face of Europe

by Roger Alford

There was an interesting radio interview earlier this week with Father Joseph Fessio, provost of Ave Maria University and also a student and close friend of Pope Benedict XVI on the subject of Islam in Europe. Particularly interesting is that Father Fessio participated in a September 2005 seminar with the Pope to discuss the topic of Western Civilization and Islam. The essence of Father Fessio’s interview was that during this Papal seminar the discussion centered on how the demographics of Muslim immigration will radically change the culture of Europe. He suggests that Europe will eventually look like North Africa. Here is an excerpt:
First of all, we know what the first Europe looked like. I mean, that’s where we all, most of us come from in our culture, and even our religious background. … We can’t predict what our role [as Christians] will be in society. But it’s probably going to be as a minority…. In fact, this year, … 2005, there were more Muslims born in France than people of traditional French background. Within four years, the top four cities in Holland will … have a Muslim majority. I mean, if we look at the demographics, … I don’t see any other issue for Europe, or any result, than looking like North Africa…. Algeria, Morocco, Libya, Egypt, … they were all Christian, thriving Christian communities … in the early Church. And now, you can’t profess your faith there…. I was in Rome, actually Castel Gandolfo, the Pope’s summer residence, in September of 2005. His former students met with him, and the topic of our meeting was the Islamic concept of God, and its consequences for a secular society. And we had two people there who gave talks, one of them extraordinary, a man named Kalil Safir Kalil(?), who is an Egyptian born Coptic Catholic, Lebanese Jesuit priest who runs an Islamic-Christian center in Lebanon, and he’s got a book called Ciento Domande Su Islam, 100 Questions On Islam. He knows it inside and out. And he quotes key Islamic leaders saying the following: Because of your religious tolerance in Europe, we will overtake you. We will be coming into Europe. Because of our religious beliefs, we will conquer you. I mean, there should be no doubt about it. They’re intent, and I don’t blame them for this. They believe they [have] got the true religion. They are going to overcome here. They’ve been trying to do it for… since the 600’s…. I want to say without exaggeration, and without trying to become histrionic here, I see the trends… I’ve seen them for years, in Europe, of depopulation as you’ve mentioned. And their immigration is coming from the South, which is mainly Islamic. And there are, I think there are 98 Islamic countries in the world, and 97 of them do not have religious freedom…. And that’s what’s going to happen to Europe. Once there’s an Islamic majority, it is going … to eliminate religious freedom … and therefore, Western civilization as we know it. However, in the United States …, we also are not having children…. But where is our immigration coming from? From Ecuador, from Mexico, from Cuba, from Guatemala. And these people are Christians…. I believe we are in a world historical century.
I am by no means an expert on immigration demographics in Europe. But it is an interesting and important thesis. In fact, when I was in London last year I heard an Oxford don say much the same. In addition, my anecdotal experience of sending my children to the local schools in London was an overwhelming sense of the presence of a significant Muslim population. I would be most curious about what others who are more knowledgeable on the subject think about Father Fessio’s thesis regarding the demographics of Muslim immigration changing the face of Europe.

More Hazards on Blogging in China

by Roger Alford

Disturbing news coming out of China that Microsoft has shut down a blog in China because of its political reporting. The blog is run by Zhao Jing under the blog name An Ti. If you go to An Ti’s blog now here is what it says: “The space is temporarily unavailable. Please try again later.”

So what was the offense? As reported in the New York Times:

The blog was removed last week from a Microsoft service called MSN Spaces after the blog discussed the firing of the independent-minded editor of The Beijing News, which prompted 100 journalists at the paper to go on strike Dec. 29. It was an unusual show of solidarity for a Chinese news organization in an industry that has complied with tight restrictions on what can be published…. Mr. Zhao said in an interview Thursday that Microsoft chose to delete his blog on Dec. 30 with no warning. “I didn’t even say I supported the strike,” he said. “This action by Microsoft infringed upon my freedom of speech. They even deleted my blog and gave me no chance to back up my files without any warning.”

What is Microsoft doing collaborating with China to stifle fundamental free speech rights? A blogger is providing breaking news without commentary and he is shut down? Perhaps the Person of the Year Bill Gates should turn his attention to matters outside Africa and look to what his company is doing to aid and abet the infringement of basic civil liberties in China.
UPDATE: One of the comments provides a useful link to a proposal from Reporters Without Borders to address the problem of Internet companies who aid and abet the infringement of free speech rights. The article gives numerous examples of Internet companies’ “ethical lapses” and offers a proposal for a legislative fix. Definitely worth a read.

Lessons from America’s Longest Held Prisoner of War

by Geoffrey Corn

In an isolated prison cell in the middle of the compound of the Federal Correctional Institute in Miami sits America’s longest held prisoner of war: General Manuel Noriega. The former head of the Panamanian Defense Force and de facto leader of that nation is no longer the defiant machete wielding strongman, but instead an aging relic of a very different national security era.

While the continued incarceration of General Noriega might not come as a complete surprise to many, his status as a prisoner of war protected by the Third Geneva Convention very well might. It indeed seems ironic that in the current era of intense debate over the applicability of this treaty to captured and detained “enemy combatants”, this notorious former “thorn in the side” of the first Bush administration continues to enjoy the benefits of this treaty as he serves his sentence for violation of U.S. domestic law.

Noriega’s status as a prisoner of war, trial, conviction, and continued incarceration offer several potential lessons related to the application of Geneva Conventions. First, how the government classifies a conflict significantly impact subsequent application of the law of war, and the relationship between law and policy in the execution of operations. Second, the conflict classification decision should not be based on political or policy expediency, but instead on the criteria provided by treaty, precedent, and highly respected commentaries. Finally, the liberal grant of prisoner of war status in no way constrains the power of our government to try and punish prisoners for pre-capture offenses.

Operation Just Cause, launched on December 19, 1989 to oust General Noriega and destroy the Panamanian Defense Force that sustained him, was the largest and most intense combat operation conducted by the United States since the Vietnam conflict. Although the combat phase of the operation was relatively brief, it involved fighting between U.S. and Panamanian forces, costing the lives of more than 20 U.S. servicemen and countless Panamanians. While this operation appeared to be a classic example of an international armed conflict, the U.S. government did not provide any conflict classification guidance for our forces until the operation was largely complete. As a result, U.S. forces began their operations without a formal determination of the legal status of the conflict, but instead resorted to the Department of Defense policy of applying the law of war to any armed conflict no matter how characterized.

For the hundreds of Panamanian Defense Force personnel captured by U.S. forces, this resulted in treatment “consistent with” the Third Geneva Convention. The U.S. never formally classified these captured personnel as prisoners of war, because subsequent to initiation of combat operations, the government determined that the conflict in Panama was not an international armed conflict. The rationale for this decision was that Guillermo Endara, the Noriega opposition presidential candidate who had by all accounts won a landslide victory in an election subsequently nullified by the General, had “requested” U.S. assistance. As a result, the U.S. government concluded that there was no dispute between Panama and the United States that led to the intervention of armed forces, and therefore the conflict in Panama was, at most, an non-international armed conflict with the U.S. assisting the legitimate government.

For most of the captured personnel, this decision had little consequence, as they were rapidly released at the termination of hostilities. General Noriega, however, was not so fortunate. As seen by the world on live television, he was ultimately captured by U.S. forces, and transported to the U.S, in his uniform, to stand trial for his alleged involvement in drug trafficking.

Once in the U.S., Noriega was brought to trial in the Southern District of Florida on the indictments that pre-dated the conflict and his capture. Noriega made a number of challenges to this prosecution based on international law, none of which proved successful. However, after his conviction, Noriega asserted his right to the protections and benefits of the Third Geneva Convention. In response, the government asserted the “invitational presence” theory originally relied upon to conclude the operation in Panama was not an international armed conflict. The District Court rejected this theory.

In an unequivocal opinion, Judge Hoeveler held that General Noriega was, as a matter of law, a prisoner of war. In what today seems like a prescient response to the government theory, the court emphasized the requirement to interpret and apply the Geneva Conventions broadly and in good faith. Consistent with this requirement, the Judge noted that conflict classification must be based on the de facto situation, and that the de jure status of the authority opposing U.S. forces is not the controlling consideration. So long as that authority possesses de facto control over the armed forces of the state engaged in conflict with U.S. forces, the international armed conflict test of the Geneva Conventions is satisfied. For the court, the situation in Panama fell so clearly into this category that it seemed to almost summarily dismiss the government theory:

The Convention applies to an incredibly broad spectrum of events. The government has characterized the deployment of U.S. Armed Forces to Panama on December 20, 1989 as the “hostilities” in Panama . . . However the government wishes to label it, what occurred in late 1989-early 1990 was clearly an “armed conflict” within the meaning of Article 2.

In reaching this conclusion, the court relied explicitly and extensively on the International Committee of the Red Cross (ICRC) Commentary to the Third Geneva Convention. This reliance reflected recognition of the value and the authority of this interpretive aid, so well understood by international law experts and practitioners.

Judge Hoeveler also addressed the government argument that it was not necessary to decide whether General Noriega was a prisoner of war because he would, as a matter of policy, be treated consistent with that status. The court rejected this argument, and noted the invalidity of attempting to substitute legal determinations with policy application:

The government’s position provides no assurances that the government will not at some point in the future decide that Noriega is not a POW, and therefore not entitled to the protections of Geneva III. This would seem to be just the type of situation Geneva III was designed to protect against.

The limit of policy to resolve issues related to the law of war seems particularly significant today. Even in the most complex operational environment, it is critical for the government to make a timely conflict classification decision in order to establish the legal foundation to control operational execution. Policy then becomes a useful tool to address issues not covered by the applicable law. But when U.S. forces engage in missions involving the application of combat power, the foundation provided by the law of war applicable to either international or non-international armed conflict must be acknowledged at the outset of the operation. Policy may supplement this foundation, but should not be used as a substitute.

The court’s holding that General Noriega was entitled to prisoner of war status did not, however, prevent his criminal punishment for pre-capture violations of U.S. law. As noted above, Noriega remains both an inmate and a prisoner of war. This “dual status” is consistent with the provisions of the Third Geneva Convention, which in no way bars the prosecution and criminal sanction of prisoners of war for offenses committed prior to capture. The power of the detaining state bring such individuals to justice extends to violations of both the domestic law of the detaining state, as was the case with General Noriega; and international law, such as pre-capture violations of the law of war. Prisoner of war status does result in the requirement to comply with certain minimal procedural standards during such prosecutions, and respect for a number of very basic privileges while sentence is being served. But the example of General Noriega clearly demonstrates that these obligations are not particularly burdensome, nor did they in any way meaningfully interfere with the General’s trial and punishment.

The example of America’s longest held prisoner of war suggests that perhaps everything old is new again. This case seems to provide insight into a number of the significant issues related to the detention and punishment of individuals captured during the war on terror: the applicability of the Geneva Conventions; the relationship of law and policy; the value of the ICRC commentaries; the need to interpret this law in good faith; and the feasibility of reconciling prisoner of war status with criminal sanction. Perhaps because this case was decided in a national security atmosphere far less charged than today’s enhances the credibility to the reasoned approach reflected in the opinion. While there are undoubtedly distinctions between the nature of our current enemies and the enemy we confronted in Panama, the final sentiment expressed by Judge Hoeveler seems to provide an excellent perspective on the complex issues related to future application of the law of war:

In the turbulent course of international events — the violence, deceit, and tragedies which capture the news, the relatively obscure issues in this case may seem unimportant. They are not. The implications of a less-than-strict adherence to Geneva III are serious and must temper any consideration of the questions presented.

Bush’s Trade Agreement Legacy

by Roger Alford

In my estimation President Clinton’s greatest economic achievement was securing the passage of the WTO and NAFTA. By contrast, to many trade experts the Bush Administration has not been a forceful proponent of free trade. Steel safeguards and Canadian softwood lumber are exhibits one and two for the case that, when necessary, this administration will sacrifice free trade for other policy or political objectives.

But there is one area where free trade is on the march because of President Bush. The Bush Administration is proving to be a landmark one in the history of trade for the establishment of new free trade agreements. Quietly and unassumingly, the Bush Administration is moving toward an impressive legacy of free trade agreements.

Already the Bush Administration has signed FTAs with thirteen countries: Chile, Singapore, Australia, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, Morocco, Bahrain, Oman, and Peru. Of course, most of these fall within the rubric of CAFTA. With the signing of CAFTA, the United States now has trade accords with the two largest U.S. export markets in Latin America: Mexico and Central America. Consider this news summary on CAFTA:

The U.S. exports more than $15 billion annually to Central America and the Dominican Republic, making it the 10th largest export market worldwide, and larger than the export markets of Russia, India, and Indonesia combined. CAFTA levels the playing field, as 80% of CAFTA products already enter the U.S. duty-free under Caribbean Basin Initiative (CBI) and the General System of Preferences (GSP).

After CAFTA came Peru. On December 7, 2005 the United States signed a free trade agreement with Peru. Trade between the two countries exceeds $5.8 billion and U.S. exports to Peru in 2004 were $2.1 billion.

The remaining years of the Bush Administration will focus on new countries. Negotiations are under way with ten more countries: Colombia, Ecuador, United Arab Emirates, Panama, Thailand, South Africa, Batswana, Lesotho, Namibia, and Swaziland. Each individual country may not be a significant trading partner standing alone, but as noted here, “New and pending FTA partners, taken together, would constitute America’s third largest export market and the sixth largest economy in the world.”

Then in today’s trade press comes the news that the United States is considering FTAs with Switzerland, Korea, Egypt, and Malaysia. The U.S. has set an informal late January or mid-February deadline for formally announcing that it is launching official negotiations with new FTA partners.

Thirteen FTAs so far. Ten more in current negotiations. The possibility of an additional four, including Switzerland. It may not be the WTO and NAFTA, but it is a quiet and quite impressive free trade agreement legacy.

Supreme Court Grants Padilla Transfer

by Roger Alford

The Supreme Court has granted the U.S. government’s request to transfer Padilla to civilian custody in Miami. The one-page order is here. The key language is the following:

“The Solicitor General has now filed with this Court an Application Respecting Custody and Transfer of Jose Padilla, seeking the same authorization previously sought from the Court of Appeals. Padilla has filed a response, arguing instead that the Court should delay his release from military custody and consider his release along with his petition for certiorari. The Government’s application presented to the Chief Justice and by him referred to the Court is granted. The Court will consider the pending petition for certiorari in due course.”

Scotusblog has the best coverage of the developments. For its discussion on the Government’s Reply Brief, see here, Padilla’s Brief, see here, the Government’s Brief, see here, the Fourth Circuit Order see here, and commentary here, here, and here.

It has struck me all along that the Fourth Circuit’s order denying transfer and the subsequent breathless commentary about the Government’s “manipulations,” the “remarkable” rebuke by the Fourth Circuit, and the “collision” over “inherent powers” was a bit overblown. The key concern of the Fourth Circuit was that the question of Padilla’s transfer is best reserved for decision by the Supreme Court. The Supreme Court has now made its decision authorizing transfer. The only sign that the Court treated this matter with a greater sense of importance is the slightly longer length of the order and the referral of the question from the Chief Justice to the full Court.

We are talking, after all, essentially about a simple question of mootness. If the body has been produced and transferred, it would seem a habeas corpus petition is in serious jeapordy of mootness. The Supreme Court ruling suggests that the Court need not deny a transfer both parties desperately want simply to preserve the possibility of a claim on appeal. That would be an attempt by the judicial branch to create facts to affirmatively prevent mootness. As the Government reply brief put it, “A citizen remains detained in military custody as a result of the order of the court, not of a military officer or the President.” We already have a rather pedestrian mootness doctrine that addresses the fundamental concerns underlying this transfer: capable of repetition yet evading review.

What Are the "Principles" of the Law of War?

by Geoffrey Corn

When addressing the treatment of individuals captured or detained in relation to the War on Terror, the Bush administration routinely emphasizes the United States commitment to respect the “principles” of the Geneva Conventions. The most recent example of this came during the recent visit by the Secretary of State Rice to Europe, where she reassured her European counterparts that the United States remains committed to compliance with the “principles” of the Geneva Conventions.

Ironically, this reassurance came during the same visit in which Secretary Rice explained to the German Chancellor why a German citizen had been abducted, transported to Afghanistan, and detained for several months without the consent of the German government and based solely on a mistaken perception of “necessity”. Many critics might consider this a reflection of the consistent divergence between Bush administration statements and practice related to the “principles” of Geneva. However, the more troubling aspect of this example is that it reveals the simple truth that the Bush administration has never defined what it considers “principles” of the Geneva Conventions.

This use of this general concept of “principles” of the law of war without more specific definition is not new in the realm of planning and executing military operations. For the last two decades, the “principles” of the law of war have served as the foundation for Department of Defense law of war policy. According to Department of Defense Directive 5100.77, “The DOD Law of War Program”, the armed forces of the United States are obligated to comply with the “spirit and principles” of the law of war during all military operations, no matter how these operations were characterized as a matter of law. (Click here). This mandate was specifically intended to establish a baseline standard for U.S. forces applicable to military operations that ran the spectrum from non-conflict peacekeeping to high intensity armed conflict. Perhaps more importantly, it also ensured that during any military operation involving armed conflict, U.S. forces would apply the full range of law of war provisions as their “default setting” even in the absence of an official U.S. policy decision on the legal characterization of the conflict.

This policy mandate proved invaluable to U.S. forces during operations conducted in the absence of a timely conflict classification decision (such as Operation Just Cause in Panama) and during non-conflict operations (such as Bosnia). However, the Department of Defense never defined what rules constituted the “principles” of the law of war. Instead, defining the content of this mandate was routinely left to judge advocates providing advice in support of military operations. These officers were taught during their professional education that in so doing, they should interpret this mandate broadly and err on the side of humanitarian spirit of the Geneva Conventions. Accordingly, these officers learned that this umbrella term encompassed, at a minimum, three bedrock principles of the law of war: humanity (as reflected in the provisions of Common Article 3 and Article 75 of Additional Protocol I); distinction (as reflected in the rules related to military objective and precautions in the attack contained in Additional Protocol I); and the historically understood concept of military necessity. This was seen consistent with U.S. interests as it would assist in establishing and preserving the moral legitimacy of the overall U.S. effort.

Although this policy provided a basis for Judge Advocates to press for respect for the humanitarian objectives reflected in the law of war during all military operations, the lack of specific content rendered the mandate essentially malleable. This fact was clearly exposed following 9/11 by the policies, directives, and decisions that began to flow from the highest levels of our government. Perhaps the most prominent example of this development came in the form of the President’s February 7, 2002 memorandum addressing obligations towards Al Qaeda and Taliban detainees. In that memorandum, the President concluded not only that these detainees were not entitled to the protections of the Geneva Conventions, but that even the policy mandate that they be treated humanely was qualified “to the extent appropriate and consistent with military necessity.”

Qualifying the humane treatment obligation contradicts the longstanding understanding of the limited authority provided by military necessity, and therefore reflected a fundamental change in the application of the concept of “principles of the law of war” by the Bush administration. Using military necessity as an “override” provision to justify derogation of protections established by the law of war – particularly humane treatment – was universally condemned following World War II. Accordingly, military necessity justifies only those measures not otherwise prohibited by international law which are indispensable to bring about the prompt submission of an enemy. Ironically, it is this understanding of military necessity that is characterized as a “basic principle” in U.S. Army Field Manual 27-10, The Law of Land Warfare (http://www.afsc.army.mil/gc/files/FM27-10.pdf).

Subsequent decisions by the Bush administration seemed to confirm that the customary understanding of the universally binding nature of the principle of humane treatment had in fact been reassessed. As a result, military commanders and the judge advocates who advised them were left with even more uncertainty as they struggled to apply a “case by case” assessment of what this policy actually required.

This case by case approach to defining the content of the policy of compliance with the “principles” of the law of war raises serious questions as to true meaning of this commitment. Is the contemporary understanding consistent with the traditional “good faith” approach that served as the foundation for countless military decisions in the past? Or, has the concept of “respecting the principles” become a useful sound-bite in the information battle related to U.S. policy. Policy makers undoubtedly covet the flexibility that flows from an undefined general standard. However, the planning and execution of military operations to achieve national security objectives characterized as having the highest magnitude, in a legal environment laced with uncertainties (often caused by these same policy makers), justifies the official enunciation of a baseline list of rules derived from the law of war that fall under the term “principles.” Until this happens, the reality will unfortunately continue to be that the commitment of the United States to the “principles” of the Geneva Conventions and the law of war will mean whatever it needs to mean to achieve any given policy objective.

Deportation Proceedings and The Rights of the Child Convention

by Roger Alford

The Second Circuit last week rendered an important decision on the U.N. Convention on the Rights of the Child in the context of a deportation proceeding of an illegal alien. In Oliva v. U.S. Dep’t of Justice, available here, the Second Circuit was faced with the question of whether the U.N. Convention on the Rights of the Child had achieved the status of customary international law such that the “best interests of the child” standard should be a primary consideration in determining whether to deport Oliva.

Oliva entered the United States illegally in 1992. He is the father of three children, two of whom live in Guatemala. The third child, a son, was born in the United States on May 21, 1997. Although Oliva is not married to this child’s mother, he states that he lived with and provided support for her and their son. On February 25, 1998, INS issued Oliva a Notice to Appear to answer charges that he was present in the United States without having been lawfully admitted or paroled. In essence the issue is whether in deportation proceedings of an illegal alien the INS should take into account the fact that he is caring for a young American-born child.

Two provisions of the Convention at issue were Article 3(1), which states that “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration” and Article 7(1), which states that “as far as possible,” a child shall have “the right to know and be cared for by his or her parents.” Oliva submitted that, consistent with these provisions, he cannot be ordered removed from the United States without some hearing affording “primary consideration” to whether his removal would be in “the best interests of” his American son with whom he has resided while in this country.

While recognizing the customary international law is part of our law, the Court emphasized that resort to it is appropriate only “where there is no treaty and no controlling executive or legislative act or judicial decision” that speaks to the issue in dispute. This Second Circuit concluded that this principle controlled resolution of the appeal, for Congress has enacted legislation defining the circumstances under which hardship to a child may appropriately be considered as a ground for granting relief from removal to a nonpermanent resident alien, (8 U.S.C. § 1229b(b)(1)) and that statute, not international law, determines the outcome of Oliva’s request for a hardship exception to removal.

That statute allows a hardship exception if removal “would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” But the hardship exception is only available if he “(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; [and] (C) has not been convicted of [certain specified offenses].”

Applying the statute, the Court concluded that the statute precluded his hardship claim, because he indisputably had failed the meet the ten-year requirement of Section 1229(b)(1). It refused to interpret the statute in light of international law under the Charming Betsy doctrine, finding no ambiguity in the statute. As a result, the Court avoided a direct finding that the Convention had achieved the status of customary international law binding in the United States.

As painful as the result is for Oliva and his eight-year old son, this is the right result. Congress has considered the criteria for hardship claims based on the impact of an alien’s dependants, it has specified the criteria that must be satisfied for invocation of this hardship, and applying these facts, it is undisputed that Oliva does not meet the ten-year criterion. The Second Circuit correctly applied the law to the facts and concluded that deportation was required under the law. In so doing, it apparently had the unintended result of directly benefiting two children in Guatemala at the expense of one child in the United States.

Champagne Without the Caviar

by Julian Ku

I want to follow up on Chris’s great post summing up our past year, but there’s a lot there. So in the meantime, I thought I’d point out one definitely non-top 25 IL event for 2005 or 2006. The NYT reports that the secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora has suspended the export of caviar from 10 of the largest caviar-producing nations. To be precise, the secretariat has refused to release export quotas for sturgeon for 2006 until he gets more information of sturgeon stocks, thereby making export of caviar from 10 nations an international legal violation. Whether this “suspension” has any teeth is very hard to say. Much of the caviar trade is already illegal under domestic and international law. Moreover, the U.S. has already banned import of most caviar, but it is not the only or even the major caviar-importing country. The E.U. may actually be more important to the long-term effectiveness of this action, as the secretariat himself pointed out in his announcement. So we’ll see. In any case, no caviar for us here in the States, and probably for you folks in Europe as well. It will be tough, but somehow we will all have to get by.

International Human Rites: A Response to Professor Weinberger

by Julian Ku

Seth has finished his very successful tenure as a guest-blogger here at Opinio Juris and his legacy goes on. One of his posts on the potential for universal human rights deeply intrigued a colleague of mine at Hofstra, Bernard Jacobs, a professor of constitutional law and a classics scholar. His thoughtful and interesting response to Seth’s post is below:

I read with interest Professor Weinberger’s piece marveling at the possibility of conflict between International Human Rights and ‘local practice, custom and tradition in the developing worlds.’ Since I live in one of those developing worlds, the United States, I am very much aware of these conflicts.

So here’s an answer to Professor Weinberger’s challenge. It is not yet time for definitive codes of international law or international human rights. There is such a good chance that applying such codes hinders rather than helps. At some point international human rights may become international human rites.

I say that because local customs may, in fact, be necessarily local and, more than that, they may be a better social solution than the one that seems, due to your local customs, more reasonable. This is not a relativistic argument, but one that grows out of the contestedness of morality. Believe me, our local customs are constantly – even here in the backward U.S. – under great and continuing pressure from our striving with other rules and ways of doing things. I am amazed, not so much of different ways of living, but from my sense that so many of them may be right, but inaccessible or wrong, but all too accessible.

The rules we live by have not yet achieved the clarified status of ‘rights.’ The few simplistic rules-of-thumb that merit that status do not begin to deal with the real world, either local or universal. Unfortunately, the process by which, like sausage, human rights are turned out and let loose on the world, does not take that into consideration. There should be no ‘moral force’ in documents containing vague, flatfooted rules that are supposed to replace moral judgment. I eschew the rhetoric of human rights and of international human rights.

So the United States is out of step? Maybe that is so. But with what? The march of history has been a little discredited, and the paper-world of human rights is not a feasible substitute.

International Human Rights, my international law colleagues tell me, is too big a reality on the international scene to be dismissed. I certainly have to admit that the themes it provides are here to stay because they are too tempting to each nation or region or group as a stick with which to beat their rival nations, regions and groups over the head. Every kettle needs to call some pot black. That is what is behind so much of the fecund stew of U.N. conventions.

More than that I suspect that, to some degree, the many international organizations, multi-billion dollar NGO’s, State Department plums and self-congratulatory Institutes, Centers and Foundations at or near law schools all over the country, are united in only one thing. They are united in a rhetorical device, so that they may reduce the discussion of morality and of the careful, prudent management of foreign affairs, to a set of slogans or the unthinking affirmation of some fashionable theme.

Over the past thirty years Mrs. Roosevelt’s well-intentioned gift to the world has transmogrified into a vast structure, an industry, a complex set of careers. As always, institutional structures and dynamics take over. On one level they have become particular political programs and agendas. On another level they have devolved into ritual celebrations of a new personality. The embodiment of that personality I have never met, but it is one which many people the world over, and certainly many bureaucrats, deeply believe in. That mythical being — I dare not give the being a gender, for it does not itself know its gender —- is the international human. This great being was never born nor raised, speaks no particular language, and has neither kith nor kin.

None of us, not even the International Human’s most impassioned followers, can achieve this wonderful – this immaculate — status. The poor followers do come from particular worlds, have particular needs and desires, and push particular agendas – especially, push agendas. So it is that I find it helpful to recall the friars of the late medieval world who wandered penniless offering solace and salvation. With them, one had to puzzle – sometimes – about whether what they offered was a genuine relic, was truly the toe bone of St. Thomas. I urge you to view claims of rules of international human rights in just that way; good relics are desirable, but are you, good friar or good Amnesty Internationalist, offering a real one. Let’s discuss that and postpone the celebration of international human rites.

International Law and Foreign Relations: The Year in Review

by Chris Borgen

Blogging can be an ephemeral activity: reacting to the issue of the day, every day. We move so quickly from topic to topic, that it is easy to lose track of all the issues that (at one time) we thought were so important.

So here, in no particular order, is our take on the 25 (!) big stories in international law and foreign relations from the past year. This survey is idiosyncratic, not scientific. I wrote the first draft of the list based on our posts and then asked my co-bloggers to weigh in. The result is the following list.

I have included links to some (but not all) of our posts on each topic. I tried to link to the posts that represented our various views (if there were various views expressed) or that reflected how the issue evolved. I also did not include links to interesting discussions that were not about any single current event in particular. For example, we have had long ongoing debates on topics such as the function and role of the ICJ or the relation of law to hegemony, but those were more general discussions rather than posts about this year’s events so they are not included.

Regardless, reviewing the posts from the past year, I am struck by the breadth of issues that arose. And also how quickly some of them were pushed aside by the Next Big Issue. The velocity of news is always accelerating. It will undoubtedly continue to do so in the next year.

Peggy, Julian, and Roger will likely post follow-ups on related topics that we discussed: which of these topics are especially important, what did we miss, what will be coming next? We also invite and encourage our readers to comment on this list and answer any of these (or other…) questions.

Happy New Year.

The Top Twenty Five Stories (in No Particular Order)

1. Katrina, Rita, and Posse Comitatus. Katrina and the other natural disasters of 2005 –along with the specter of catastrophic terrorism—led to a debate on posse comitatus.

2. The Tsunami and Worldwide Response. The tsunami and effort at a coordinated response to the humanitarian crisis it caused also had international legal implications which we considered here and here.

3. Iraq. Of course the War in Iraq was a major topic of discussion. While we debated some issues concerning the start of the war, we also focused on the international legal aspects related to the new Iraqi constitution and the transfer of power. See, for example, here and here.

4. The Hussein Trial. Whether the Saddam Hussein trial is the mother of all trials remains to be decided by history (though this first draft on history says “no”). For now, you can see this post with links to information about the Iraqi Special Tribunal, this post on the filing of charges and this one on Saddam’s courtroom antics.

5. Judge Green’s Guantanamo Decision. The continued detention of foreigners in Guantanamo Bay was another topic throughout the year. Here are two posts (one and two) on Judge Green’s decision.

6. Hamdan and Military Commissions. The detainee issue was also crucial in the DC Circuit’s opinion upholding the Constitutionality of military commissions. Julian noted how this opinion may be seen as a victory for the administration. Peggy looked at the implications for the application of the Geneva Conventions to al Qaeda detainees.

7. The Padilla Saga Continues. The story of particular detainee, albeit an American one–Jose Padilla, had numerous twists and turns this year, culminating in his indictment. See also this post.

8. The London Bombings. The latest al Qaeda attack didn’t so much bring new legal issues to the fore as it gave us reason to revisit an ongoing question: are such terrorist bombings and other attacks best understood as a crime spree or part of a war?

9. Ongoing Torture Revelations and Transatlantic Relations. There were too many posts on torture, the “torture memos,” and Administration policies to have links to all of them here. Instead, we focus on one aspect that became increasingly important as the year went on: the effects of the continuing revelations concerning Administration policy on our foreign—and particularly Transatlantic—relations. Here’s where the EU weighs in, then two posts (one and two) on the U.S. response, and one post following up on the Europeans.

10. Foreign Decisions and Domestic Courts. Besides topics relating to Iraq and the War on Terror, the seemingly dry issue of citation to foreign law by U.S. courts was actually a hot topic from the start of the year. See this flurry of posts: one, two, three. Then this one: one, two, three, four. And this recent post. For those interested, there are many other posts on this topic throughout the year.

11. The Supreme Court Nominations. Speaking of international law and the U.S. courts, a year with a new nomination is worthy of note, a year with two is worthy of its own heading. We spent a significant amount of time dissecting what each nominee might mean for international law. Our discussion of (the then-soon-to-be) Chief Justice Roberts includes these five posts: one, two three, four, five. We then moved on to Judge Alito, ranging from a reading of his senior thesis on the Italian Constitutional Court, to his rulings on asylum cases (one, two, three, four) to other topics (one, two, three)

12. The French “Non” to the EU Constitution. Whither the EU? After the French (and others) say “non” to the Constitution, the story moved on to recriminations in Brussels, and concerns in Central Europe.

13. UN Reform. One of the first topics we considered and probably one that we will keep talking about until the final days of this blog. Here is one post I wrote, a critique from Julian, and then my reply.

14. The Volcker Commission Report. Speaking of UN reform, the Oil-for-Food Scandal and its investigation was one topic that highlighted the need for better accountability at the UN. It also gave us a chance to think about positive steps that can be taken.

15. The Sudan and the ICC. The situation is Darfur first had us discussing whether the issue should be referred to the ICC, then whether the ICC could be effective, and finally looking at what the Security Council actually did or didn’t do. See this post regarding the Security Council referral and for links to our previous posts. See also this post. Not as many are talking about Darfur today, but people are still dying.

16. The Hariri Report and Syria. The UN steps up and investigates the assassination of a former Lebanese Prime Minister and fingers Syria. Or the UN is wishy-washy and succumbs to political pressure. As usual, we find lots to debate about on this topic. See one, two, and three. See also this follow-up.

17. Kyoto Protocol on Climate Change Enters into Force. Is Kyoto good or bad? You decide. Either way, it is now in force.

18. Israel and the ICJ’s Advisory Opinion on the Security Barrier. The ICJ issued a controversial advisory opinion on the security barrier erected by Israel. Julian comments on and then debates the issue here.

19. Medellin/ Withdrawal from Optional Protocol of the Vienna Convention on Consular Relations. The latest case in the “Consular Relation” cases brought a host of Constitutional and International issues. After being granted cert, the President issues a memorandum simultaneously seeking compliance with previous ICJ rulings on the Vienna Convention on Consular Relations and withdrawing from the ICJ’s jurisdiction to hear further cases. And then the Supremes decided that cert was improvidently granted and sent the case back down to Texas. This will likely be on next year’s “Year in Review” list as well. See one, two, three.

20. The Bolton Debate. John Bolton: Good, Bad, or Irrelevant? Two examples of our debates on his controversial nomination and appointment as U.S. Ambassador to the UN. One, Two.

21. ICRC Study of Customary International Humanitarian Law. In a move that was of significance both to the doctrinal area of the law of armed conflict and the jurisprudential topic of the nature and role of customary international law, the International Committee of the Red Cross issues a massive (5,000) page study on the customary international humanitarian law. No, we didn’t read it all. But we know someone who did (see also here and here).

22. Universal Jurisdiction Redux. As the Pinochet proceedings continue their newest iterations in Chile, universal jurisdiction resurfaced as a topic with the latest Spanish proceedings against two Argentines for their involvement in the “Dirty War” of the 1970’s. While this wasn’t a front burner issue this year, it may prove to be a perennial topic as new indictments and the resultant political debates lurch on year to year. See posts one and two.

23. North Korean Nukes. Well, no WMD’s in Iraq this year, either. But what about North Korea

24. Iranian Nukes. …or Iran? I wrote this post a while back and there is this recent group concerning Israel and Iran: one, two, three, four.

25. NAFTA and The Lumber Cases. And, while we’re talking about nuclear options, there’s the “nuclear option” in trade disputes: trade war. While we didn’t quite get to that point with Canada over the Softwood Lumber case, it did provide the trade law equivalent of high drama. See the series of posts beginning here and here, and then looking at the endgame here and here.

Blawg Happy Hour at the AALS: Weds, Jan 4, 9:30 pm, Cloud

by Peggy McGuinness

Our friends over at PrawfsBlawg and Concurring Opinions are co-hosting a law prof blog happy hour at Cloud, 1 Dupont Circle NW (New Hampshire Ave, south of the circle). I’ll be flying the flag for Opinio Juris and want to extend an invitation to any OJ readers and friends of readers to stop by and say hello. There may even be some surprise appearances by former guest bloggers. In true blog fashion, click here for a blogger review of Cloud.

See you there!

The McCain Amendment Compromise: Has the Message Been Diluted?

by Geoffrey Corn

The highly publicized McCain Amendment is now law. In order to secure the commitment of the President to support this statutory codification of the principle of humane treatment, Senator McCain agreed to the inclusion of a “superior orders” defense. The compromise legislation therefore provides that in any criminal or civil action against any employee of the armed forces or any other government agency for violation of this “humane treatment” mandate, obedience to orders may be raised as a defense. Accordingly, unless the activity forming the basis of the allegation is so obviously improper as to lead a person of “ordinary sense and understanding” to realize it was illegal, “just following orders” serves as an absolute defense. In addition, the reliance by the employee on advice of counsel is explicitly included in the legislation as an “important factor” in determining whether a person of “ordinary sense and understanding” would have recognized the action as illegal.

Proponents of principle of humane treatment are justified in their satisfaction that this legislation transforms what has heretofore been an executive policy into a legal mandate. However, it is impossible to ignore the reality is that this provision will discourage subordinates from questioning the propriety of interrogation tactics, techniques, and procedures they are directed to implement so long as that direction comes with the “legally sufficient” endorsement. Unfortunately, this compromise has undermined the important objective of ensuring all detainees in U.S. custody are treated humanely at all times. Instead of emphasizing the “bright line” nature of the principle of humane treatment, the compromise provision has instead validated the Bush administration assertion that when interrogating a terror suspect, the line between humane and inhumane treatment is blurry, and maximum discretion must be preserved for extracting critical information. While this may seem to some observers as a logical reconciliation of the humane treatment obligation and the necessities of national security policy, one should question whether it is consistent with the fundamental principles of the law of armed conflict.

Obedience to orders is without question an essential aspect of effective military operations, and any system of military discipline must ensure subordinates treat all orders with a powerful presumption of legality. This was undoubtedly a factor in the compromise to include a defense for subordinates who obey orders subsequently determined to be unlawful. However, the law of armed conflict relies upon the fundamental principle that the obligation of obedience is not without limit. Every service-member and civilian supporting military operations bears an individual responsibility to first question, and if necessary disobey any order that would result in a violation of the law. There is no question that such a decision to disobey an order carries substantial risk. However, it is a risk that duty imposes upon members of the armed forces and associated civilians. In no area is this duty more profound than with respect to the obligation to respect and protect individuals who are “out of combat”, and it is the principle of humane treatment that provides the standard that guides the execution of this duty. Neither the importance of the intelligence requirement being pursued, the affiliation of the detainee, nor the level of authority directing the interrogation alters this standard.

Historically, commanders were expected to serve as the bulwark against any derogation of humanitarian protections by subordinates. This responsibility extended to ensuring subordinates were properly trained and supervised to ensure “bright line’ rules were not endangered in the heat of battle. The express inclusion of a superior orders defense in the compromise legislation, complete with the emphasis that prior legal review will almost certainly provide subordinates “top cover” in all but the most extreme cases, will have the effect of diminishing the probability that subordinates will exercise independent judgment in assessing the propriety of carrying out a questionable interrogation or detention procedure. As a result, a critical component of compliance with the law of armed conflict in the execution of military operations has been degraded.

The McCain amendment was intended to emphasize the indelible nature of the humane treatment obligation, and the duty of all subordinates – especially those in command – to question orders inconsistent with their basic understanding of how any human should be treated. The initiative to codify this obligation in domestic law reflected the rejection of unlimited presidential authority to decide when and to what extent the principle of humane treatment applied to detainees. Contrary to these objectives, the compromise legislation has essentially confirmed the proposition that it is impossible to create a bright line humane treatment standard, and has endorsed a “top cover” type mentality for future detention and interrogation operations. This is unfortunate, for the obligation to treat all detainees humanely, even those suspected of affiliation with Al Qaeda, is so basic that subordinates should be taught that any order that appears in violation of this principle should be questioned, even when the orders come from the highest levels of command with approval by senior administration lawyers.

Finally, thanks to Julian and Roger for the privilege of guest blogging.

Thanks to Seth and Duncan, Welcome Geoffrey Corn

by Roger Alford

Special thanks to Seth and Duncan for excellent guest blogging in December. We greatly enjoyed the quality (and quantity) of your posts. Duncan’s background at the State Department and Seth’s IR background provided real depth and insights to your posts.
We are now pleased to welcome Geoffrey Corn as a guest blogger. Geoffrey is an Assistant Professor of Law at South Texas College of Law who is an expert on the laws of war. Prior to his current position he served as the Special Assistant to the US Army Judge Advocate General for Law of War Matters, and Chief of the Law of War Branch, US Army Office of the Judge Advocate General International and Operational Law Division. Previously, he was a supervisory defense counsel for the Western United States; Chief of International Law for US Army Europe; and a Professor of International and National Security Law at the US Army Judge Advocate General’s School. He has served as an expert consultant to the Military Commission Defense team, and has published numerous articles in the field of national security law. He is a graduate of Hartwick College and the U.S. Army Command and General Staff College, and earned his J.D., highest honors at George Washington University and his LL.M., distinguished graduate, at the Judge Advocate General’s School.
Welcome Geoffrey and blog away!

President Bush’s Signing Statements Appended to the McCain and Graham Amendments

by Peggy McGuinness

Marty Lederman has posted this discussion at Balkinization of what the President Bush’s signing statement to the final defense appropriations bill that includes the Graham (stripping jurisdiction of federal courts to hear habeas challenges brought by alien enemy combatants) and McCain amendments (outlawing use of cruel, inhumane and degrading treatment on detainees by US personnel) will mean and the coming showdown at the Supreme Court in the Hamdan case. He includes the full text of the both amendments. Bottom line: The Bush administration is set to argue that Graham cuts off not just future but pending habeas challenges (e.g., Hamdan) and that McCain does not curtail broad presidential authority to treat detainees in any manner necessary to protect national security. But as Marty points out, the first salvo in this interpretive battle may be fired at Judge Alito during his confirmation hearings later this month.

On a related note, the Fed Courts section of AALS is sponsoring a panel discussion of this very topic and related topics at this week’s AALS annual meeting in Washington DC (thanks to Janet Alexander):

Friday, January 6, from 8:30-10:15 a.m. “Federal Courts and the War on Terrorism”

Barbara Olshansky, Deputy Legal Director, Center for Constitutional Rights, director counsel of the Guantanamo Global Justice Initiative and counsel for petitioners in Rasul v. Bush, on “Clash of the Titans: The Ongoing Battle Between the Executive and the Judiciary in the War on Terror.”

Curtis Bradley, Duke University School of Law and former Counselor on International Law in the Legal Advisor’s Office of the U.S. State
Department, on “Military Commissions and Terrorist Enemy Combatants.”

Neal Katyal, Georgetown University Law Center, lead counsel for petitioner in Hamdan v. Rumsfeld and former National Security Advisor to the Deputy Attorney General, U.S. Department of Justice, on “Hamdan v. Rumsfeld: Why the Guantanamo Military Commissions are Illegal.”

Janet Alexander, Stanford Law School, on “The Graham Amendment: Jurisdiction-Stripping in the War on Terror.”

Check the final AALS schedule for a room number.

Anti-Americanism and the Lure of Le Big Mac

by Peggy McGuinness

The Economist (subs req’d) recently ran this article about the effect of anti-Americanism on the European sales of American-based brands. An empirical examination by political scientists Peter Katzenstein (Cornell) and Bob Koehane (Princeton) reveals that far from suffering ill effects of anti-Americanism following the US invasion of Iraq, US-based brands are prospering in Europe. Indeed, the actual sales reflect a sort of “boycott gap” between what consumers say they will do and how they actually act. According to the Economist:

That sales of firms closely identified with the United States have not fallen overseas is, in some ways, surprising. Messrs Katzenstein and Keohane cite a December 2004 poll, conducted by Global Market Insite, in which thousands of consumers in eight countries (Canada, China, France, Germany, Japan, Russia, Britain and the United States) were asked two questions about 53 American companies: would they avoid American products because of recent American foreign policy and military action? And to what extent did they see particular companies as “extremely American”? Overall, 20% of European and Canadian consumers said they were consciously setting out to avoid American products.

The firms most vulnerable to consumer boycotts included American Airlines, United Airlines, General Motors, Wal-Mart, CNN, American Express, McDonald’s, Coca-Cola, PepsiCo and Marlboro. Nike was not far behind. Immediately after the invasion of Iraq, several press reports trumpeted boycotts of American goods in Europe.

The Katzenstein/Keohane study showed no discernible effect of this expressed anti-Americanism or on the boycott movement to sales during the period:

They studied the revenues of three big American-based consumer-products companies –and three of their European competitors–in Europe and the Middle East between 2000 and 2004. The American firms were Coca-Cola, McDonald’s and Nike. The three European firms, Adidas-Salomon, Cadbury Schweppes and Nestle, were chosen because they compete in the same industries. As Messrs Katzenstein and Keohane note: “If anti-Americanism had a significant impact on sales, one should find US-based firms’ sales falling in 2003-04, when anti-American views rose sharply in Europe, compared to 2000-01…This fall in the sales of American firms should occur both in absolute terms and relative to the performance of European firms.”

In fact, the opposite happened. Between 2000-01 and 2003-04 all six firms increased their European sales. American companies also grew at least as fast as their European rivals.

To what can this boycott gap be attributed? The Economist concludes that European customers can draw a distinction “between President Bush and a Big Mac.” Or perhaps, as they suggest, it is because US-based brands adopt better marketing strategies to counter the anticipated boycott behavior. More likely, in my view, is the fact that these global “American brands” hardly seem so American anymore. Similarly, Nestle, which owns the venerable “American” brands Libby and Ralston-Purina, and Cadbury Schweppes, which owns Dr. Pepper and Snapple, hardly seem “European.” Whom do brand boycotts against global corporations hurt? Local bottlers and distributors? Manufacturing workers? Management and shareholders? And what is the nationality of each of those affected parties?

The efforts of some Americans to boycott French products in the wake of French opposition to the US invasion of Iraq ran into this problem of distinguishing products. (Is the Jerry Springer show really French?) They also failed to have any effect on sales of French brands in the US. At a time when Anheuser-Busch still ends its advertisements in the U.S. with the tagline “Anheuser-Busch, St. Louis, Missouri,” but is acquiring beer companies in China with great speed, is there really such a thing as brand “nationality?”

Pope Calls For Nuclear Disarmament, U.N. Renewal

by Roger Alford

In the traditional Message for the World Day of Peace message, Pope Benedict XVI had a number of important things to say about international institutions, nuclear disarmament, and armed conflict. He is extraordinarily critical of nuclear arms, describing governments that rely on nuclear arms for security as adopting a “baneful” and “fallacious” point of view. He appears to single out Iranian President Mahmoud Ahmadinejad for harsh criticism for inciting citizens to hostility toward other nations and jeopardizing the delicate balance achieved. He also singles out the U.N. for criticism, calling on it to become more efficient at promoting justice, peace, and solidarity.
Here is an excerpt:

12. Looking at the present world situation, we can note with satisfaction certain signs of hope in the work of building peace. I think, for example, of the decrease in the number of armed conflicts. Here we are speaking of a few, very tentative steps forward along the path of peace, yet ones which even now are able to hold out a future of greater serenity, particularly for the suffering people of Palestine, the land of Jesus, and for those living in some areas of Africa and Asia, who have waited for years for the positive conclusion of the ongoing processes of pacification and reconciliation. These are reassuring signs which need to be confirmed and consolidated by tireless cooperation and activity, above all on the part of the international community and its agencies charged with preventing conflicts and providing a peaceful solution to those in course.

13. All this must not, however, lead to a naive optimism. It must not be forgotten that, tragically, violent fratricidal conflicts and devastating wars still continue to sow tears and death in vast parts of the world. Situations exist where conflict, hidden like flame beneath ashes, can flare up anew and cause immense destruction. Those authorities who, rather than making every effort to promote peace, incite their citizens to hostility towards other nations, bear a heavy burden of responsibility: in regions particularly at risk, they jeopardize the delicate balance achieved at the cost of patient negotiations and thus help make the future of humanity more uncertain and ominous. What can be said, too, about those governments which count on nuclear arms as a means of ensuring the security of their countries? Along with countless persons of good will, one can state that this point of view is not only baneful but also completely fallacious. In a nuclear war there would be no victors, only victims. The truth of peace requires that all —whether those governments which openly or secretly possess nuclear arms, or those planning to acquire them— agree to change their course by clear and firm decisions, and strive for a progressive and concerted nuclear disarmament. The resources which would be saved could then be employed in projects of development capable of benefiting all their people, especially the poor.

14. In this regard, one can only note with dismay the evidence of a continuing growth in military expenditure and the flourishing arms trade, while the political and juridic process established by the international community for promoting disarmament is bogged down in general indifference. How can there ever be a future of peace when investments are still made in the production of arms and in research aimed at developing new ones? It can only be hoped that the international community will find the wisdom and courage to take up once more, jointly and with renewed conviction, the process of disarmament, and thus concretely ensure the right to peace enjoyed by every individual and every people. By their commitment to safeguarding the good of peace, the various agencies of the international community will regain the authority needed to make their initiatives credible and effective.

15. The first to benefit from a decisive choice for disarmament will be the poor countries, which rightly demand, after having heard so many promises, the concrete implementation of their right to development. That right was solemnly reaffirmed in the recent General Assembly of the United Nations Organization, which this year celebrated the sixtieth anniversary of its foundation. The Catholic Church, while confirming her confidence in this international body, calls for the institutional and operative renewal which would enable it to respond to the changed needs of the present time, characterized by the vast phenomenon of globalization. The United Nations Organization must become a more efficient instrument for promoting the values of justice, solidarity and peace in the world.

Links to all major news feeds on the message are here. The blogosphere is also abuzz with commentary.
As one of his first major messages on international relations, it certainly portends a pope who will be active and outspoken on international concerns.

International Law Bestsellers

by Roger Alford

If you go to Amazon and do a seach for “international law” and sort by “bestselling” you can quickly get a sense of what the public is buying in the field of international law. It appears the rankings change dramatically from day-to-day, (and the ranking function does not work perfectly) so this is just a snapshot. Without filtering for books that appear to be slightly off-topic, here are the twenty-five top selling books that prominently reference international law (with sales rank):

1. Law School Confidential (Robert Miller) (#2,473)
2. Fundamental Perspectives in International Law (William Slomanson) (#10,481)
3. Understanding International Conflicts (Joseph Nye) (#12,842)
4. How to Get Into Law School (Susan Estrich) (#15,396)
5. Akehurst’s Modern Introduction to International Law (Peter Malanczuk) (#17,724)
6. Business Law (Robert Emerson) (#22,255)
7. Careers in International Affairs (Maria Carland, et. al.) (#22,633)
8. International Criminal Law (Antonio Cassesse) (#23,364)
9. How to Adopt Internationally (Jean Nelson-Erichsen) (#23,755)
10. Political Theory and International Relations (Charles Beitz) (#24,223)
11. International Financial Management (Cheol Eun, et. al.) (#24,342)
12. International Law (Malcolm Shaw) (#28,952)
13. Gigalaw Guide to Internet Law (Doug Isenberg) (#32,248)
14. International Law: Norms, Actors Process (Jeff Dunoff, et. al.) (#35,141)
15. Law, Business and Society (Tony McAdams) (#37,283)
16. International Law in the 21st Century (Christopher Joyner) (#43,691)
17. An Introduction to International Law (Mark Janis) (#43,941)
18. Work Worldwide: International Career Strategies (Nancy Mueller) (#60,863)

19. Law and Moral Action in World Politics (Cecilia Lynch) (#61,489)
20. Indigenous Peoples in International Law (James Anaya) (#62,559)
21. International Human Rights in Context (Henry Steiner) (#66,023)
22. International Law (Mark Janis) (#80,014)
23. International Law Cases and Materials (Lori Damrosch, et. al.) (#82,948)
24. Foundations of International Law and Politics (Oona Hathaway, et. al.) (#94,428)
25. Sales Law: Domestic and International (Clayton Gillette) (#96,244)

"Underneath Their Robes" Back Online

by Roger Alford

One of the more innovative and irreverent law blogs is now back online. As of yesterday, Underneath Their Robes is back up and running. The blog was taken offline abruptly in mid-November after it was revealed in The New Yorker that the blogger, David Lat, was a U.S. attorney in New Jersey. According to this report, he left Justice on Friday and started resuming blogging the following day. He links to an article in New York Times today with a spokesman at Justice stating that Lat left the Justice Department of his own will and that it had nothing to do with the blog.

Now that the blog is back up, the real question is: Will A3G continue to be a roaring success now that the world knows the identity of the blogger and that it is a “he” and not a “she” who is blogging about “judicial hotties”?

Happy New Year! But Will It Be A Happy "New" UN?

by Duncan Hollis

The New York Times greets the arrival of 2006 with this lead story about UN efforts to revise the much maligned Human Rights Commission (it has counted among its members Sudan, Cuba, and Zimbabwe; Libya chaired it in 2003). Although I had earlier predicted (see here) UN hopes to have a new “Human Rights Council” in place by the end of 2005, the NYT story provides a new timetable, suggesting efforts are now focused on having a UNGA resolution for the new Council adopted by March 2006. The key sticking points appear to be how to convert a body that now meets semi-annually and is composed of members chosen by geographic region with little independent power into a standing body whose members are elected directly and authorized to act freely when human rights violations are alleged.

My own sense is that at the end of the day, any new Council will not differ all that dramatically from the current Commission (last month, Seth offered a similar assessment on UN reform more generally – see here). The NYT story emphasizes the opposition to reform from developing countries worried about the impact reform will have on their sovereignty – either to open their internal practices to UN oversight, or to exclude them from Council participation because of such practices. Certainly, we can count on these countries to work against more restrictive membership requirements and greater UN autonomy.

But what about the United States? Publicly, the United States has pushed for reform – critiquing the Commission for allowing states with poor human rights records to be Commission members and noting the restrained nature of the Commission’s reporting on violators as a result. I wonder, however, how firm U.S. support for a robust Council will be in the final negotiations. The United States may want to exclude states such as Sudan, Cuba and Zimbabwe from the Council, but is it prepared to accept membership requirements that might allow other states to oppose U.S. membership given U.S. detainee and rendition policies? (Indeed, I would expect U.S. negotiators to bear in mind the 2001 fallout when the United States was voted off the Commission). Similarly, how independent does the United States really want the Commission to be if it means that body would opine in some authoritative way on U.S. practices and policies?

Let me be clear – I am not suggesting the Commission does not need reform. Nor am I suggesting the United States will not push for some reform. But, I suspect U.S. efforts will seek to reform the Commission in limited ways: i.e., to produce a new Council with less controversial members and greater reporting, but not to invest the new body with any authority that would influence or restrict U.S. conduct in meaningful ways. In that sense, we are still faced with the age-old problem of human rights law – how can states participate in the creation of generally applicable rules and procedures when each state is most concerned with ensuring such rules and procedures do not require unwanted changes to its own activities. Thus, it will be interesting to see at the end of the day what new Human Rights Council is created, and exactly who gets the credit (or blame) for its final structure and authorities.

Good News for the New Year!

by Seth Weinberger

Hope everyone had a happy new year! As we move into 2006, it seems a good time to reflect a bit on where we’ve been the last few years. A new report from the Human Security Centre at the University of British Columbia has been released that deals with a new concept in international relations theory known as “human security.” As the Human Security Report details, in contrast to traditional understandings of national and international security, which focus on the security of states and the prevention of large-scale inter-state war, “human security is about protecting individuals and communities from any form of political violence.” There are two main frames for human security: A narrow one, articulated in the Report, which focuses on “violent threats to individuals, while recognizing that these threats are strongly associated with poverty, lack of state capacity and various forms of socio-economic and political inequity” and a broader one, preferred by the UN, which “argues that the threat agenda should be broadened to include hunger, disease and natural disasters because these kill far more people than war, genocide and terrorism combined.” Human security is a controverisal concept, as traditional IR scholars believe it detracts conceptually and in policy matters from more relevant and dangerous security threats.

Nonetheless, the Report has some very interesting findings about the state of international security. Namely, that the world is becoming, year by year, more peaceful and less bloody. The number of armed conflicts around the globe has dropped by almost 50% since 1992, when 50 wars raged world-wide. 100,000 people died in those wars (and 340,000 died in 1972), but only 20,000 died in armed conflicts in 2002. Military coups are disappearing, down to 10 failed coups in 2004 from 25 in 1963. Terrorism is the one form of international violence on the rise, growing from 17 incidents in 1987 to 175 in 2003 and 651 in 2004. However, even as the number of terrorist attacks rise, the death toll — an average of 1,000 people a year over the last 30 years — is but a small fraction of the cost of large-scale war.

Why the decline in violence? The Report identifies four main reasons: the spread of democracy, an increase in economic interdependence, a decline in the economic utility of war (that is, modern economies are no longer fueled by raw materials and territory, and thus war has become less profitable), and the growth of international institutions and international law, that have produced a ideational shift away from the use of violence as a tool of statecraft. The report concludes that “the best explanation for this decline is the huge upsurge of conflict prevention, resolution and peacebuilding activities that were spearheaded by the United Nations in the aftermath of the Cold War.Of course, the end of the Cold War, in which the US and the USSR fought “proxy wars” across the globe is cited as well. I have no doubt that these factors have been critical in the reduction of interstate violence.

However, I also have a hunch that these factors are intervening variables that hint at a more important and fundamental cause of increasing international peace: US hegemony. It is US hegemony that allowed NATO to cement the democratic status of the former Soviet satellites in Eastern Europe, US hegemony that allows the EU, Japan, and other democracies to focus on economic expansion rather than military spending, US hegemony and its attendant military supremacy that has made large scale conflict almost unthinkable, and US hegemony that allows the UN and other international bodies the space to operate and build functioning legal institutions. It is hard to imagine any of these things occurring in a multi-polar, or even a bi-polar, world in which traditional security problems would likely dominate national agendas. The US, in essence, provides the monopoly of force that any government needs to enforce its laws. Of course, the US is not answerable to the UN, nor does it always act in the interests of international law. The system is not perfect. But in the absence of that hegemony, I believe international law would be even more enfeebled than it is today. Before criticizing US hegemony for blocking or undermining the spread of international law, ask yourself: Where would international law be without it?