Archive for
May, 2009

Security Issues Like Squeezing Jello? Reversion to the Mean? Jack Goldsmith on the Effects of Security Alternatives

by Kenneth Anderson

Jack Goldsmith observes in a Washington Post op-ed that when one avenue of national security closes, another is opened up, sometimes with worse collateral consequences for third parties.  As he says:

Demands to raise legal standards for terrorist suspects in one arena often lead to compensating tactics in another arena that leave suspects (and, sometimes, innocent civilians) worse off.

I think this is right.  One that I have talked about in various venues (including OJ, a chapter in a book Ben Wittes is editing appearing soon, and also here) is targeted killing, and the disincentive to capture and instead kill by standoff missile strike that is, at a minimum, reinforced by the strong desire – not just at the national policy level but also by midlevel people intensely concerned for down-the-road, backward-looking changes in the rules on detention, interrogation, etc. that might burn them later on – not to hold anyone if at all possible.  But the op-ed goes on to consider other compensating policies …

Picturing the Gitmo Legislation

by Deborah Pearlstein

Ever since President Obama’s speech last week setting forth the general outlines by which he’ll resolve the mess at Guantanamo Bay, I’ve been trying to get my head around what the Administration will put into the legislation the President has suggested he’s going to work with Congress to get.

Shame on the Human Rights Council

by Kevin Jon Heller

I want to believe in the Human Rights Council, and I hope its new members — including the US — will improve things. But the HRC’s “response” to the conflict in Sri Lanka is simply appalling. Here are a couple of paragraphs from the resolution the Council passed praising the Sri Lankan government, which reads like something out of The Onion:

Welcoming the conclusion of hostilities and the liberation by the Government of Sri Lanka of tens of thousands of its citizens that were kept by the LTTE against their will as hostages, as well as the efforts by the Government to ensure safety and security for all Sri Lankans and bringing permanent peace to the country;

Welcoming further the recent reassurance given by the President of Sri Lanka that he does not regard a military solution as a final solution, as well as his commitment to a political solution with implementation of the 13th Amendment to bring about lasting peace and reconciliation in Sri Lanka,


1. Commends the measures taken by the Government of Sri Lanka to address the urgent needs of the Internally Displaced Persons;

2. Welcomes the continued commitment of Sri Lanka to the promotion and protection of all human rights and encourages it to continue to uphold its human rights obligations and the norms of international human rights law;


4. Welcomes the announcement of the proposal to safely resettle the bulk of the Internally Displaced Persons within six months, and encourages the Government of Sri Lanka to proceed in these endeavours with due respect to persons belonging to national, ethnic, religious and linguistic minorities;

5. Acknowledges the commitment of the Government of Sri Lanka to provide access as may be appropriate to international humanitarian agencies in order to ensure humanitarian assistance to the population affected by the past conflict, in particular IDPs, with a view to meeting their urgent needs and encourages the Sri Lankan authorities to further facilitate appropriate work;

Meanwhile, back in reality, actual investigation continues to reveal the true horrors of the Sri Lankan government’s actions, such as killing 1,000 Tamil civilians a day in the last few weeks of the conflict through indiscriminate shelling. And, of course, the government continues to limit access to the internment camps it has created to hold displaced Tamil civilians, which the ICRC recently — and unusually, for it — criticized.

But that’s okay. At least the President of Sri Lanka doesn’t regard military action as a “final solution.”

The Diplomatic Friction of ATS Litigation

by Roger Alford

Former State Department Legal Advisor John Bellinger, who is now at Arnold & Porter and also an Adjunct Senior Fellow at the Council on Foreign Relations, has an interesting op-ed in yesterday’s Wall Street Journal.

The U.S. government can and should be a strong voice for redress of human-rights abuses around the world. But these lawsuits, which are being brought under the 200-year-old Alien Tort Statute, are likely to cause friction between foreign governments and the Obama administration. Congress should step in and clarify the types of human-rights cases that may be heard….

In recent years, the majority of suits under the statute have been brought against petroleum companies and miners operating in countries with poor human-rights records. These include ExxonMobil in Indonesia, Unocal in Burma, Talisman Energy in Sudan, and Rio Tinto in Papua New Guinea.

In 2004, the Supreme Court attempted to narrow the types of cases that may be brought under the Alien Tort Statute…. In Justice Souter’s words, the door for further litigation was “still ajar subject to vigilant doorkeeping” by the federal courts. Nevertheless, plaintiffs have continued to urge federal courts to recognize new causes of action. In recent years, for example, Caterpillar Inc. was sued for selling bulldozers to Israel that were eventually used to demolish Palestinian homes. Dow Chemical Co. was sued for manufacturing the Agent Orange defoliant used during the Vietnam War. And Yahoo Inc. has been sued for sharing user information with the Chinese government, which resulted in the arrest of Chinese dissidents….

Litigation under the Alien Tort Statute may force companies to modify their international activities in some cases, although it rarely produces monetary awards for plaintiffs. But it does give rise to diplomatic friction in U.S. relations with foreign governments. Governments often object to their officials and corporations being subject to U.S. jurisdiction for activities taking place in their countries and having nothing to do with the U.S….

New Laws for a New Cybercommand?

by Duncan Hollis

Today’s New York Times leads with the story of Pentagon plans to form a new cybercommand:

The Pentagon plans to create a new military command for cyberspace, administration officials said Thursday, stepping up preparations by the armed forces to conduct both offensive and defensive computer warfare. The military command would complement a civilian effort to be announced by President Obama on Friday that would overhaul the way the United States safeguards its computer networks.

White House officials say Mr. Obama has not yet been formally presented with the Pentagon plan. They said he would not discuss it Friday when he announced the creation of a White House office responsible for coordinating private-sector and government defenses against the thousands of cyberattacks mounted against the United States — largely by hackers but sometimes by foreign governments — every day.

But he is expected to sign a classified order in coming weeks that will create the military cybercommand, officials said. It is a recognition that the United States already has a growing number of computer weapons in its arsenal and must prepare strategies for their use — as a deterrent or alongside conventional weapons — in a wide variety of possible future conflicts.

The article (and other news stories) focus mostly on the defensive problems facing the United States as U.S. public and private information infrastructures increasingly find themselves subject to cyberattacks.  At the same time, these stories emphasize the bureaucratic battles over who should be in charge of U.S. cyberpolicy.  Given the creation of a “cyberczar” separate and apart from any new Pentagon cybercommand, the White House appears to have settled on trying to differentiate oversight of defensive efforts to protect civilian information infrastructures, which would broadly encompass the concept of cybercrime, from U.S. military capacity to engage in offensive or defensive cyberwar (although additional infighting between the Pentagon and NSA is reportedly ongoing over controlling U.S. cyberwarfare capacities).  

Broadly speaking, the increased attention to conflicts in cyberspace is a welcome development.  We’ve come a long way from the 1990s when “netwar” was an interesting hypothetical that many equated to science fiction.  Today, the threat AND potential of cyberspace as a vehicle for conducting conflicts among states, non-state actors, and even individuals are all too real.  So, it’s good to see the White House trying to adjust to this new reality on all fronts.  In particular, I was interested to see the NYT piece address the question of U.S. forces using cyberspace to conduct offensive operations, something earlier Administrations have reportedly approached with reluctance (e.g., in Kosovo, U.S. forces reportedly refrained from planned computer attacks against Serbian computer networks for purposes of disrupting military operations and basic civilian services out of concern that they’d be war crimes):  

The decision to create a cybercommand is a major step beyond the actions taken by the Bush administration, which authorized several computer-based attacks but never resolved the question of how the government would prepare for a new era of warfare fought over digital networks.

It is still unclear whether the military’s new command or the N.S.A. — or both — will actually conduct this new kind of offensive cyberoperations.

The White House has never said whether Mr. Obama embraces the idea that the United States should use cyberweapons, and the public announcement on Friday is expected to focus solely on defensive steps and the government’s acknowledgment that it needs to be better organized to face the threat from foes attacking military, government and commercial online systems. . . . “We are not comfortable discussing the question of offensive cyberoperations, but we consider cyberspace a war-fighting domain,“ said Bryan Whitman, a Pentagon spokesman. “We need to be able to operate within that domain just like on any battlefield, which includes protecting our freedom of movement and preserving our capability to perform in that environment.”

As welcome as these developments are, however, real questions remain.

Remembering Tom Franck: The Challenge of the Engaged Life

by Chris Borgen

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Professor Thomas M. Franck of NYU passed away on Wednesday afternoon.  (NYU has a page in memoriam, here.) I assume his name is well-known to most, if not all, of the regular readers of Opinio Juris. Suffice it to say that his contributions to the field of international law are staggering, as can be glimpsed from his bio on his faculty page. But a faculty bio is a poor measure of one’s life.  Tom was a great scholar, an outstanding teacher, an incisive lawyer, and a devoted friend. No blog post could do him justice but it would be an injustice not to at least try…

It’s Pronounced “Key-vin Heel-err.” Get it Right!

by Kevin Jon Heller

Second Prize for silliest right-wing comment concerning Sotomayor has to go to Mark Krikorian, who writes for National Review Online:

Deferring to people’s own pronunciation of their names should obviously be our first inclination, but there ought to be limits. Putting the emphasis on the final syllable of Sotomayor is unnatural in English… and insisting on an unnatural pronunciation is something we shouldn’t be giving in to…

This may seem like carping, but it’s not. Part of our success in assimilation has been to leave whole areas of culture up to the individual, so that newcomers have whatever cuisine or religion or so on they want, limiting the demand for conformity to a smaller field than most other places would. But one of the areas where conformity is appropriate is how your new countrymen say your name.

Damn foreigners* always demanding that we pronounce their names correctly.  Don’t they realize this is America, where we pronounce everything wrong?  Assimilate, people!

* Sotomayor was, of course, born in that distant and exotic land, the Bronx.

We Are All Frankians Now

by Kevin Jon Heller

Of all the silly right-wing attacks on Sonia Sotomayor, the reaction to her professed love of her native cuisine — “My Latina identity also includes, because of my particularly adventurous taste buds, morcilla, pig intestines; patitas de cerdo con garbanzo, pigs’ feet with beans; and la lengua y orejas de cuchifrito, pigs’ tongue and ears” — has to be the silliest:

According to Hill reporter Alexander Bolton, “This has prompted some Republicans to muse privately about whether Sotomayor is suggesting that distinctive Puerto Rican cuisine… would somehow, in some small way influence her verdicts from the bench.”…  Slightly gobsmacked, I called Bolton earlier today and asked him whether this was for real — whether any conservatives were genuinely raising this issue. He confirmed, saying, “a source I spoke to said people were discussing that her [speech] had brought attention… she intimates that what she eats somehow helps her decide cases better.”  Bolton said the source was drawing “a deductive link” between Sotomayor’s thoughts on Puerto Rican food and her other statements.

The Wall Street Journal has an article today examining the influence Jerome Frank has had on Sotomayor’s judicial philosophy.  Given that Frank once famously quipped that “a court’s decision might turn on what the judge had for breakfast,” it appears that Sotomayor is not the only one influenced by him.

Will the New Ship Recycling Convention Sink or Swim?

by Duncan Hollis

Most of us now know that it’s important to recycle stuff.  And there’s a lot of stuff to recycle beyond the morning newspaper — glass bottles, plastic containers, clothing, batteries, concrete blocks, timber, and, yes, even ships.  But how we recycle may prove just as important as what we recycle.  Or at least that’s the premise of the recently concluded International Maritime Organization (IMO) Conference on Ship Recycling.  Earlier this month, delegates from more than 60 states adopted a new treaty — the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships (let’s call it the Ship Recycling Convention since HKICSESRS seems a bit too much even for me).  The Ship Recycling Convention aims to combat the environmental and safety problems associated with recycling oceangoing ships.  Although developed countries like the United States or those in the EU have extensive regulations for recycling vessels within their waters, many (if not most) ships end up beached on the shores of developing countries like Bangladesh, China, and India, where they are stripped for scrap mettle and other parts.  Unfortunately, this practice tends to contaminate the seashore and surrounding waters with toxic substances such as asbestos, oil waste, paint, etc. Working conditions in these recycling areas are also apparently a big problem.

If adopted, the Ship Recycling Convention hopes to change all this.  Here’s what the IMO has to say about it:

The [Ship Recycling Convention] is aimed at ensuring that ships, when being recycled after reaching the end of their operational lives, do not pose any unnecessary risk to human health and safety or to the environment . . . The new Convention intends to address all the issues around ship recycling, including the fact that ships sold for scrapping may contain environmentally hazardous substances such as asbestos, heavy metals, hydrocarbons, ozone-depleting substances and others. It will address concerns raised about the working and environmental conditions at many of the world’s ship recycling locations. . . Ships to be sent for recycling will be required to carry an inventory of hazardous materials, which will be specific to each ship. An appendix to the Convention will provide a list of hazardous materials the installation or use of which is prohibited or restricted in shipyards, ship repair yards, and ships of Parties to the Convention. Ships will be required to have an initial survey to verify the inventory of hazardous materials, additional surveys during the life of the ship, and a final survey prior to recycling.

Ship recycling yards will be required to provide a “Ship Recycling Plan”, to specify the manner in which each ship will be recycled, depending on its particulars and its inventory. Parties will be required to take effective measures to ensure that ship recycling facilities under their jurisdiction comply with the Convention. A series of guidelines are being developed to assist in the Convention’s implementation.

The IMO has yet to release the final text of the Convention, but I’ve managed to procure copies of the Convention as adopted (see here and here), along with the Conference’s Final Act and accompanying resolutions.

Obviously, the Ship Recycling Convention will interest international environmental lawyers not simply for addressing the underlying environmental problem, but for how it does so — i.e., providing national enforcement of international norms that address the recycling process as well as pre- and post-recycling products.  For me, however, the Ship Recycling Convention also has promise on three more general levels:  (a) as a case study of treaty efficacy; (b) as evidence of treaty fragmentation; and (c) as a useful reminder of the sophistication that has emerged in constructing treaties.

Not a Transnationalist. Some (Really) Early Thoughts on Judge Sotomayor

by Julian Ku


As a judge in the New York federal courts over the past 15 years, both at the district and appellate level, U.S. Supreme Court nominee Sonia Sotomayor has had a fair number of cases involving the application of international law.  She has never ruled on an Alien Tort Statute case, but my very quick scan suggests that, whatever else her critics can say, her judicial record does not suggest she will be a particularly “transnationalist” justice.  

Closet Sovereigntist?

United States v. Ni Fa Yi, 951 F. Supp. 42 (S.D.N.Y. 1997), involved a defendant’s challenge to his prosecution under the Hostage Taking Act, and the International Convention Against the Taking of Hostages.  While ruling for the government, Judge Sotomayor went out of her way to reject the government’s argument that the fact that the criminal statute  was enacted to implement treaty obligations should automatically satisfy judicial scrutiny of the statute’s constitutionality. “The Court agrees with defendant, however, that this begs the question: “[N]o agreement with a foreign nation can confer power on the Congress, or on any branch of Government, which is free from the constraints of the Constitution.” (Citing Reid v. Covert, 353 1, 16 (1957).

Deferential to Executive Foreign Affairs Power?

European Commission v. RJR Nabisco, 355 F.3d 123 (2d Cir. 2004) involved an attempt by the European Commission to bring a RICO action in U.S. courts against tobacco companies for lost tax revenues.  Invoking the common law “revenue rule”, Judge Sotomayor barred the action on the grounds that the suit essentially requires US courts to enforce European tax laws.  In barring the action, though, she did leave open the possibility of executive intervention in the litigation as a mechanism to lift the bar imposed by the revenue rule. Interestingly, this was also part of the theory for the Supreme Court’s eventual decision to relax the revenue in another context, in an opinion by Justice Thomas.  And it was the lack of intervention by the executive that led her to continue to bar the suit, even after the Supreme Court had remanded her earlier decision.

Staying Neutral on the Relationship Between International law and the Supremacy Clause

In Beharry v. Ashcroft, 339 F.3d 51 (2d Cir 2003), Judge Sotomayor went out of her way to avoid opining on a lower court decision (by Judge Jack Weinstein) that casually gave customary international law the same status as federal legislation under the Supremacy Clause. In reversing the lower court on statutory grounds, Judge Sotomayor offered this gentle non-opinion: “Nothing in our decision to reverse on other grounds the judgment of the district court should be seen as an endorsement of the district court’s holding that interpretation of the INA in this case is influenced or controlled by international law.”

Similarly, in Center for Reproductive Law v. Bush, 304 F 3d. 183 (2d Cir. 2002) a lawsuit challenging the ban on funding for overseas abortions under constitutional and customary international law, Judge Sotomayor disposed of the customary international law argument in a single footnote: “As plaintiffs’ claims based on customary international law are substantively indistinguishable from their First Amendment claims, they are dismissed on the same ground. We express no view as to whether those claims are otherwise viable.”

“National Sorry Day”

by Peter Spiro

That’s today, in Australia. It’s meant as a sort of continuing apology to Aboriginal peoples in Australia specifically for the practice, lasting up until about 1970, of taking Aboriginal children from their families (known as the “stolen Generations”), but also for the general mistreatment. It’s not a holiday but appears to be an official commemoration.

My question: could Americans come around to instituting something similar for all of our national transgressions? My guess is that we’re not there yet. But it’s an intriguing idea, and you might get some genuinely-felt buy-in (this said the day after Memorial Day, which many take seriously but perhaps others not so solemnly any more).

Mancow Waterboarding Video, The Director’s Cut

by Chris Borgen

Following on my previous post, this is a much longer and more complete clip of the waterboarding of talk-radio host Mancow Muller. (Thanks to Roger, who found it on YouTube.) This clip includes an explanation of how waterboarding is done and includes Muller’s reactions. I thought the way he explained that it was much worse than he ever would have expected gives a sense as to how horrific it must be to have this done under more hostile conditions and having it done again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and again and…

Motion Filed on the Karadzic-Holbrooke Cooperation Agreement

by Kevin Jon Heller

Disclosure: I am one of Dr. Karadzic’s legal associates.  This post is offered with his consent.

The defense team has just filed its definitive motion arguing that the Karadzic-Holbrooke cooperation agreement — in which Holbrooke promised Dr. Karadzic that he would not be prosecuted at the ICTY if he cooperated with the international community’s efforts to bring peace to the Balkans — requires the indictment against Dr. Karadzic to be dismissed.  Contrary to many news reports, the ICTY has not squarely addressed the legal merits of that argument; its previous statements mischaracterizing the cooperation agreement as an “immunity agreement” were made in the context of disputes over discovery.

The full text of the motion, along with its 29 annexes, is available here.  The motion raises a number of very complicated legal arguments concerning the enforceability of the agreement, but the annexes establish beyond all doubt that Holbrooke did, in fact, enter into the agreement with Dr. Karadzic.

UPDATE: Again proving that the media neither understands the legal issues in the case nor cares to do the reading necessary to understand them, Reuters is continuing to describe the Holbrooke-Karadzic agreement as an “immunity deal,” despite the evident fact that it’s not.

Waterboarding Stunt Gone Wrong

by Chris Borgen

 Hat tip: The Faculty Lounge

As if they ever go right?  Anyway, this was a publicity stunt by conservative talk show host Mancow Muller, but it seems to have gone wrong in an unexpected way…  While commentors at the NBC Miami site who saw/heard more of this said that it seemed like Muller was doing the waterboarding to show it was not torture, he got hit in the face with reality, so to speak. Although the environment was about as friendly as you could want (nice bright studio, staff to help him if he was in trouble, talking through with the waterboarder where to hold his head, etc.) nonetheless, Muller lasted about six seconds. According to one of the commentors, in the full version that aired on TV and on the radio, Muller said afterwards “I hate to say this… this is torture…”

No kidding?

“The Prize of Freedom”

by Roger Alford

Could anything be more contradictory than the lives of our soldiers? They love America, so they spend long years in foreign lands far from her shores. They revere freedom, so they sacrifice their own that we may be free. They defend our right to live as individuals, yet yield their individuality in that cause. Perhaps most paradoxically of all, they value life, and so bravely ready themselves to die in the service of our country….

But why are we so seemingly willing to fight and, if need be, to die? The answer to that question is as simple — and yet as complex — as the soul of America itself. We fight because we believe. Not that war is good, but that sometimes it is necessary. Our soldiers fight and die not for the glory of war, but for the prize of freedom. The words of the philosopher John Stuart Mill say it best: “War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks nothing is worth war is much worse. A man who has nothing for which he is willing to fight; nothing he cares more about than his own personal safety; is a miserable creature who has no chance of being free….”

And, the heart of America is freedom, for ourselves and all nations willing to fight for it. Yes, the price is high, but freedom is a wealth no debt can encumber.

So, we choose to remember the past because the payment for forgetfulness is dear — sacrifice, service, duty … and many times, injury and death paid by gallant, heroic men and women. Only fools would elect to forget so expensive a lesson….

… [C]ourageous men and women, each so different in heritage and background, shared the common bonds of the armed forces — duty and sacrifice. All of them reached a moment in their lives when race and religion, creed and color made no difference. What remained was the essence of America — the fighting spirit of a proud, valorous people. They are soldiers who paid the price for freedom.

As we remember these brave warriors and their comrades in arms on this Memorial Day, we must look to the future as well as the past. In today’s world, freedom comes cloaked in uncertainty. America still relies on her sons and daughters to defend her liberty. The cost of independence remains high, but we are willing to pay it. We do not pay it gladly, but we pay it with deep reverence and thanks to those who have sacrificed their lives for America. We know that in the years to come, more brave souls will sacrifice their lives for America. We include them in our thoughts and prayers today.

Memorial Day Speech, Deborah Parker, May 26, 1997

Alex Ross on Music, Torture, and War

by Chris Borgen

A year ago, Alex Ross, the New Yorker’s classical music critic and the author of the book The Rest is Noise, wote a post on the New Yorker Online about the use of music as a psychological weapon. Ross recently posted a short update on his own blog.

 The original essay began with a reference to the use of music in interrogations:

In Errol Morris’s documentary “Standard Operating Procedure. . .” an American soldier talks about employing music as a means of breaking down the resistance of enemy combatants during interrogations. They can withstand “Hip Hop Hooray” and “Enter Sandman. . .” he says, but not country music. Most audiences will laugh at the line, but may check themselves mid-chuckle, wondering what it means that Americans are deploying their favorite music as a way of tormenting people of another culture.

But his post went well beyond that, referencing tactics ranging from giving or withholding support from certain German composers during the occupation of Germany from 1945 to 1949, to the blaring of heavy metal at the Papal Nuncio’s residence where Manuel Noriega was holed-up during the 1989 invasion of Panama.

He closed his short essay this way:

Since the beginning of American operations in Afghanistan and Iraq, music has routinely been used during interrogations at Guantánamo and elsewhere. The playing of loud music, customarily hip-hop or heavy metal, is part of a standard procedure that the Department of the Army describes as “futility”: “[The] collector convinces the source that resistance to questioning is futile. This engenders a feeling of hopelessness and helplessness on the part of the source.” Suzanne Cusick, a musicologist who teaches a course on Soundscapes of Contemporary War at N.Y.U., has studied accounts of such interrogations and gathered her findings in an article for the Journal of the Society for American Music. When I asked Cusick whether she considered these tactics a new development in the evolution of music as a weapon of war, she answered that there are, in fact, some disturbing historical precedents, not least the forced musical rituals at Nazi concentration camps.

Ross’s recent update states:

Lara Pellegrinelli, in the Chronicle of Higher Education, delves at length into the issues raised by [Suzanne] Cusick and other authors. New from Indiana University Press is Jonathan Pieslak’s book Sound Targets: American Soldiers and Music in the Iraq War, which examines how soldiers have employed music both as an instrument of war and as a kind of defense mechanism. Pieslak discovers that some took to blasting “The Ride of Valkyries” on “thunder runs” through Baghdad, in imitation of the Wagner scene in Apocalypse Now. In a contrasting section, Pieslak interviews the composer-guitarist Jason Sagebiel, who wrote a gently sorrowing piece entitled Salvation while serving in Iraq and who also used his time there to study Arabic music. You can listen to Salvation here. It is, Sagebiel says, in passacaglia form; the recurring theme represents the fact that “violence and war have been the history of the world.”

Detention in the News

by Deborah Pearlstein

Hard to know what to respond to first given all the news this past week on the Guantanamo/detention front.  My own week began with participating in the fascinating and useful meeting President Obama held with some human rights advocates and academics.  Since then, I have been tempted to explore the politics of a debate that now find Jack Goldsmith and the Guantanamo lawyers on the same side (in both wrongly caricaturing Obama’s policies as a continuation of Bush). And I still hope to get back to that soon.  For now I’d like to pick up on one topic in law on its own terms, the one that seems to me to have generated some of the most troubling post-speech reporting: What did the President have to say about the prospects of a “preventive” detention regime, and what did it mean?

Obama and Counterterrorism: A Timely Conference

by Julian Ku

The Federalist Society and the Heritage Foundation have put together a timely conference on Counterterrorism and the Obama Administration.  It starts at 9:00 a.m. next Thursday, May 28 at the Capital Visitor Center in DC.  I have a feeling it won’t be entirely supportive of the Obama Administration policies, but at least it will benefit from the insights of Opinio Juris blogger Deborah Pearlstein and guest blogger Benjamin Wittes.   I certainly wish I could go, but I’ll be out of the country during this event. Our DC OJ readers should check it out!

Thomas Buergenthal: A Lucky Child

by Roger Alford

Judge Thomas Buergenthal has recently published a memoir of his life as a child surviving Auschwitz. The book was originally published in German (where it was a bestseller) and is now out in English. The book, A Lucky Child, is absolutely wonderful and inspiring. He describes in wonderful detail his slow, painful descent into the hell of Auschwitz and how he somehow managed to survive. He then describes life after Auschwitz–as a boy soldier who helped liberate Berlin, as a German schoolboy, and then as a young man in the United States. The book does a wonderful job connecting his life as a Holocaust victim and his subsequent career as a human rights advocate, scholar and judge.

Although set in the context of Auschwitz, it is a great story of family, love, hope, and survival. He doesn’t provide any answers to the problem of evil, or why some lose their humanity and others don’t. Perhaps there are no answers to such questions. Evil lurks within all of us, and so does the possibility of goodness. If he can survive and flourish after Auschwitz, then each of us can be inspired to live a life of purpose, full of meaning and joy. Buergenthal calls us to the better angels of our nature.

There are so many rare and amazing stories in this book, and one post cannot do it justice. So if you want to learn more about the book, this weekend C-SPAN will televise a book discussion with Judge Buergenthal airing this Saturday at 1:00 p.m. and this Sunday at 12:00. (See details here). I happened to be in the audience the day it was taped and I highly recommend it.

Having worked for and with Judge Buergenthal in Zurich, Switzerland almost ten years ago, I can say without equivocation that his most endearing and inspiring quality is his remarkable unbroken spirit. His life as a boy explains the man that he has become, a man full of empathy, generosity and forgiveness.

Record and watch the program on C-SPAN. And then go buy the book.

Secretary Clinton to Annouce Same-Sex Family Benefits for State Department Employees

by Peggy McGuinness

In the category of happy news that is long overdue, it looks like Secretary Clinton is poised to expand the definition of State Department employee “family members” eligible for benefits to include same-sex domestic partners.  For Foreign Service employees those benefits will include –perhaps most important — the issuance of a diplomatic passport (the “black passport”), which carries with it all the protections and immunities of the Vienna Convention on Diplomatic Relations. The VCDR does not define “family” but refers in several places to “family forming part of [the diplomat’s] household,” which appears to include any person deemed to be part of the “family” by the sending state. Though I haven’t researched the question (it would be interesting to hear from those who have), on its face this language could include extended family members (elderly parents) multiple wives (for those states that recognize polygamy) or any other form of “family” as the sending state of the diplomat defines it.

Here’s an excerpt from Secretary Clinton’s internal “draft announcement” of the policy:

While a career in the Foreign Service is rewarding, the demands to serve our country both at home and abroad also require great sacrifice by our Foreign Service personnel and their families as well. Family members often must uproot their lives, endure hardship conditions, and put their own careers on hold. Like all families, our Foreign Service families come in different configurations; all are part of the common fabric of our Post communities abroad.

Historically, domestic partners of Foreign Service members have not been provided the same training, benefits, allowances, and protections that other family members receive. These inequities are unfair and must end. Providing training, medical care, and other benefits to domestic partners promote the cohesiveness, safety, and effectiveness of our Posts abroad. It will also help the Department attract and retain personnel in a competitive environment where domestic partner benefits and allowances are increasingly the norm for world-class employers. At bottom, the Department will provide these benefits for both opposite-sex and same-sex domestic partners because it is the right thing to do.

The Department will be exercising its inherent authority to change its regulations in the Foreign Affairs Manual and Department of State Standardized Regulations to allow the domestic partners of Department Foreign Service personnel to qualify as family members for a variety of benefits and allowances. Where appropriate, this extension of benefits and allowances will apply to the children of domestic partners as well. To qualify for these benefits and allowances, an employee must file an affidavit identifying his or her domestic partner and certifying to certain eligibility requirements that will be set forth in the FAM.

Hat tip to Ben Smith, who also notes that the Defense Department may, in fact, be moving faster on Don’t Ask Don’t Tell than earlier statements indicated.

Eugene Kontorovich Comments on Universal Jurisdiction Prosecutions by National Courts

by Kenneth Anderson

Eugene Kontorovich, well known to OJ readers for his work on piracy and universal jurisdiction (both separately and together), has a very interesting post partly responding to discussion here at OJ on universal jurisdiction and proposed legislation on Spain on universal jurisdiction.  It is up over at Prawfsblawg and is a fun, quick read.  Also, here is Eric Posner’s comment, at Volokh: “It is becoming clear that governments are happy enough to enact universal jurisdiction statutes so as to make a show of keeping their treaty obligations—just as long as they don’t have to use them.”  I’m not sure that’s completely true – as I suggested in the earlier universal jurisdiction discussion, a lot depends on what the costs are to using the universal jurisdiction statutes – the US has not moved to impose serious costs in the case of Spain and although I have some anecdotal suggestions from friends in Spain that fear of China’s long term reaction, no matter how mild the official reation today, was enough to provoke a serious re-think by Spanish politicians, it is hard to say with any definiteness.  Of course, that is Eric’s larger point – countries weigh up the costs and benefits.

Australian Aboriginals and Kristallnacht

by Kevin Jon Heller

Because I so rarely get to blog about uplifting things, I wanted to pass along the following story, concerning a group of aboriginals who, in 1938 — when so much of the world was silent — protested the Nazis’ treatment of the Jews during Kristallnacht:

William Cooper’s name does not appear on Yad Vashem’s list of the Righteous Among the Nations, but the Aboriginal elder should be regarded as highly as Raoul Wallenberg, Oskar Schindler and the 22,000-plus others who risked their lives for the Jews.

That was the message delivered by the Jewish Community Council of Victoria at a Dec. 4 ceremony at State Parliament in Melbourne to recognize Cooper, who in 1938 protested the “cruel persecution” of the Jews.

Some 300 Jewish and Aboriginal leaders joined Australian government officials and Israel’s ambassador in paying tribute to Cooper and the Australian Aboriginal League on the 70th anniversary of their petition to the German Consulate in Melbourme on Dec. 6, 1938, just weeks after the Kristallnacht pogrom.

Cooper, then 77, and his delegation were denied entry to the consulate with their petition. But 70 years on, the German consul general, Anne-Marie Schleich, attended the ceremony. Also on hand were Federal Indigenous Affairs Minister Jenny Macklin and Victorian Premier John Brumby.

John Searle, the Jewish Community Council president, said Cooper understood what it was like to be a minority and to suffer oppression.

“He had long been fighting for his own people, the indigenous Australians,” Searle said. “He was a remarkable man. He could not sit by, watch such oppression and do nothing”…

The Leasing of Guantanamo Bay

by Chris Borgen

Given all the recent talk about the future of Guantanamo, it may be of interest to readers that, Dr. Michael J. Strauss, a lecturer in international relations at the Centre d’Etudes Diplomatiques et Stratégiques in Paris, has a new book called The Leasing of Guantanamo Bay, published by Praeger Security International. Here’s the description from the press release:

Post-9/11 events at the U.S. naval facility at Guantanamo Bay have generated a spate of books on its use as a detention center in the U.S. fight against terrorism. Yet the crucial enabling factor – the lease that gave the U.S. control over the territory in Cuba – has until now escaped any but cursory consideration. The Leasing of Guantanamo Bay explains just how Guantanamo Bay came to be a leased territory where the U.S. has no sovereignty and Cuba has no jurisdiction. This is the first definitive account of the details and workings of the unusual and problematic state-to-state leasing arrangement that is the essential but murky foundation for all the ongoing controversies about Guantanamo Bay’s role in U.S. anti-terrorism efforts, charges of U.S. human rights violations, and U.S.-Cuban relations.

The Leasing of Guantanamo Bay provides an overview of territorial leasing between states and shows how it challenges, compromises, and complicates established notions of sovereignty and jurisdiction. Strauss unfolds the history of Guantanamo Bay, recounting how the U.S. has deviated widely from the original terms of the lease yet never been legally challenged by Cuba amid the strong state-weak state dynamics. The lease is a hodge-podge of three U.S.-Cuba agreements full of discrepancies and uncorrected errors. Compiled for the first time in one place are the verbatim texts of all the key documents relevant to the Guantanamo Bay lease – including treaties and other agreements, a previously unpublished U.N. legal assessment, and once-classified government correspondence.

Interactive World Map with Today’s Front Pages

by Chris Borgen

I just wanted to pass along something I had found recently: Newseum has an interactive map that allows you to see that day’s front pages from various papers from around the world.  Unfortunately, as far as I can tell, you can’t enlarge the pages (although you can zoom-in on the map), so by-and-large only the headlines are readable. Nonetheless, this does allow you to scan headlines from around the globe and, to that extent, it is a snapshot of the first draft(s) of history.

Diane Wood, World Federalist or Sovereigntist?

by Peter Spiro

Now that she has the Jeff Rosen seal of approval, the safe money is on Diane Wood to fill David Souter’s seat on the Supreme Court.

Most of us IL types will know that Judge Wood has some strong interests in the area (she has been on the board of editors of the AJIL), but in my case at least it’s a pretty vague awareness. That’s because her focus has been on international commerical subjects (antitrust, in particular) rather than public IL straight up.

So I’ve cast around a little to try to get a fix on where she might stand as an internationalist justice.  In “Regulation in the Single Global Market: From Anarchy to World Federalism?”, 23 Ohio Northern Law Review 297 (1996), she answers the question (surprise!) in the negative.  (Pretty risky, though, to include the term in a lecture title — some people won’t need to read any further.)  For purposes of antitrust regulation, Wood seems to advocate a kind of bottom-up global regulatory networks approach by way of ensuring accountability and legitimacy from the (domestic) ground up.

More interesting is material from a 2004 lecture at NYU, “Our 18th Century Constitution in the 21st Century World,” 80 NYU Law Review 1079 (2005), a piece which is going to get the fine-comb treatment.  It’s living constitution stuff.  For our purposes, the key argument is that it is only through evolving constitutional understandings that US practice conforms with human rights conventions.  But in so doing, Wood appears to work from a decidedly non-internationalist logic: . . .

Spain’s Parliament Moving to Rein in Garzon?

by Kenneth Anderson

The Wall Street Journal had a news story yesterday, “Spain is Moving to Rein in Crusading Judges” (May 20, 2009), reporting on moves in the Spanish parliament to place stricter limits on the ability of investigating magistrates – most famously, Baltasar Garzon – to undertake sweeping investigations and indictments worldwide on the basis of universal jurisdiction:

Under pressure from irate foreign governments, Spain’s Congress on Tuesday passed a resolution to limit the jurisdiction of the crusading judges to cases in which there is a clear Spanish connection — and no home-country investigation already under way.

The six investigating judges of Spain’s National Court, employing the so-called principle of universal jurisdiction, are now handling 13 cases involving events that took place in other countries, from Rwanda to Iraq.

Some Freed Gitmo Detainees Return to Ill Ways (Then Again So Do Many Criminals)

by Peter Spiro

Details here.  Assuming that we’re talking foot soldiers, this seems a pretty thin argument for keeping the rest under wraps, even through a cost-benefit/national interests optic.  The equation: How much does keeping Gitmo up and running hurt US interests v. how much damage can released detainees cause if they return to the battlefield.  I’m betting that for all but the very few high-level detainees, the former presents a much more serious (if diffuse) continuing hit.  The proportion of Gitmo recidivists (assuming that’s the right description) is much more favorable than in the US criminal context, as the article notes:

Terrorism experts said a 14 percent recidivism rate was far lower than the rate for prisoners in the United States, which, they said, can run as high as 68 percent three years after release. They also said that while Americans might have a lower level of tolerance for recidivism among Guantánamo detainees, there was no evidence that any of those released had engaged in elaborate operations like the Sept. 11 attacks.

Still, domestic political incentives cut in favor of playing it safe.  Obama’s worst nightmare: a terror Willie Horton.  This also explains in part why Congress is balking on the Guantanamo shutdown, coupled with a bizarre NIMBY aversion to hosting any detainees on US soil.

What’s your FILA (Favorite International Law Acronym)?

by Duncan Hollis

A while back, a commentator (aptly named Irritated) complained about my use of acronyms in a post on treaty priorities of the Obama Administration.  I understand the frustration of the uninitiated.  That said, the reality is a facility with acronyms appears to have become part of the job description for international lawyers.  I have no idea when or how this phenomenon started (a fun law review topic I’m sure), but you cannot work as an international lawyer today without using (and sometimes creating) acronyms of all sorts.  Many simply serve as shorthand references to longer-titled institutions or instruments (think UN, NATO, WHO, WTO, UDHR, ECHR, ECtHR, ICJ, IJCICC, or IMO).  In other cases, acronyms supplant the practice of referencing a treaty by the location of the final negotiations; a practice that proved problematic once cities like Vienna began to play that role repeatedly.  So today, it’s not the “Vienna Convention” anymore, but the more specific VCLTVCCR or VCDR.  Sometimes, an international law acronym sounds like a real word, such as PIC, or actually replicates a real word, like the START treaty currently being renegotiated or the older SALT treaties or many SOFAs that exist today.  And then there are competing acronyms; the earlier reference to UNCLOS has little appeal to its opponents, who prefer to refer to that treaty as LOST

So what are my FILAs?  Actually, I tend to appreciate acronyms that suggest a drafting committee had a sense of humor about their project.  I’m pretty sure, for example, that in devising a POPRC, the treaty-makers were not merely creating a very interesting example of international delegation, but also hinting at their preferred musical genre.  My own personal favorite though is the Convention on the Protection of Underwater Cultural Heritage. I have it on good authority that one of the negotiators got other representatives to sign off on his preferred acronym–CPUCH–for that treaty despite a peculiar pronunciation he neglected to share with them (hint — read the initial C softly and give the CH that follows a hard reading to get an unfavorable description of the final treaty product).  Of course, I claim no monopoly on FILAs.  Thus, I’d welcome reader comments on other favored or hated acronyms, not to mention examples that give some levity to an otherwise serious field.

Swine on the Lam in Turkey Trapped by Foxy Pigs

by Roger Alford

Deniz Aydiner wins the honors for one of the dumbest murderers ever. He was indicted for aggravated murder in 2003 and while the investigation was pending he returned to Turkey. The state of Oregon subsequently indicted him and sought to impose the death penalty. But Aydiner missed his wife so much that he just had to return to the United States, the consequences be damned. He was denied reentry (because he had overstayed his welcome the last time), but persisted in his stupidity. This time law enforcement officers learned that he was seeking to return of his own volition and so they convinced the feds to allow him to reenter notwithstanding his ineligibility. The trap was set and Aydiner walked right into it. He was arrested at the Portland airport.

The United States authorities had never notified Turkey that it sought Aydiner for criminal prosecution. Nor did they ever request extradition pursuant to the extradition treaty between the United States and Turkey. Aydiner argued that the United States should have used the extradition process rather than tricking him to come to the United States voluntarily. It is undisputed that Turkey would not have extradited defendant to be prosecuted for a capital offense. Here is how the Oregon Court of Appeals in State v. Aydiner dismissed the argument:

We begin with defendant’s assertion that the extradition treaty between the United States and Turkey provides the exclusive means by which the state could secure his presence for criminal prosecution…. [T]he signatories to the treaty did not intend the extradition process to be exclusive.… The treaty … contains no express prohibition against obtaining a person’s presence by any other means, including trickery or deceit. To the extent that defendant urges us to read into the treaty such an implied prohibition, we reject that contention as well. Given that the United States Supreme Court declined to read a prohibition on forcible kidnapping into a similarly-worded extradition treaty in Alvarez-Machain-and concluded that general principles of international law did not require such a prohibition to be implied-we do not understand how a different result could obtain relating to much less intrusive governmental conduct.

This makes perfect sense to me. The moral of the story is any swine who is dumb as a mule and commits inhuman acts should assume that when on the lam in Turkey the pigs will try to outfox you.

Debating Water Wars

by Chris Borgen

Seed Magazine has an interesting roundtable discussion about whether or not conflicts over fresh water are a significant threat to international stability (and whether water shortages are even a cause of war).  The introduction to the discussion notes the case being made that water shortages have been and will increasigly be a source of violent conflict:

In 2007 an 18-month study of Sudan by the UN Environment Program concluded that the conflict in Darfur had its roots in climate change and water shortages. According to the report, disappearing pasture and evaporating water holes—rainfall is down 30 percent over 40 years in some parts of the Sahel—had sparked dispute between herders and farmers and threatened to trigger a succession of new wars across Africa.

Months later, the British nonprofit International Alert released a study identifying 46 countries—home to 2.7 billion people—where water and climate stresses could ignite violent conflict by 2025, prompting UN Secretary-General Ban Ki-moon to say, “The consequences for humanity are grave. Water scarcity threatens economic and social gains and is a potent fuel for wars and conflict.”

Those remarks came just as David Zhang of Hong Kong University published a study linking water shortages to violence throughout history. Analyzing half a millennium’s worth of human conflict—more than 8,000 wars—Zhang concluded that climate change and resulting water shortages had been a far greater trigger than previously imagined. “We are on alert, because this gives us the indication that resource shortage is the main cause of war,” Zhang told the London Times.

However, this is not the final word, but rather the opening of a debate on the relationship of water shortages to conflict, trade, and development:

Not everyone, however, is convinced that “water wars” are all they’re chalked up to be. In a March 19 essay in Nature, Wendy Barnaby contends, “Countries do not go to war over water, they solve their water shortages through trade and international agreements.”

According to Barnaby, global trade in “virtual water”—the water embedded in food products—allows arid countries like those in the Middle East to meet their water requirements without resorting to conflict.

Barnaby cites the 1999 Nile Basin Initiative, a multilateral agreement among nine nations, including Egypt, Ethiopia, and Sudan, as a prime example of countries opting to cooperate rather than compete over access to water. Even the much cited “water war” between West Bank Palestinians and Israelis, according to Barnaby, is little more than a myth:

“Power struggles and politics have led to overt and institutionalized conflict over water—but no armed conflict, as there is over borders and statehood. Instead, Palestinian and Israeli water professionals interact on a Joint Water Committee, established by the Oslo II Accords in 1995. It is not an equal partnership: Israel has de facto veto power on the committee. But they continue to meet and issue official expressions of cooperation even in the face of military action. Inequitable access to water resources is a result of the broader conflict and power dynamics: It does not itself cause war.”

And, all this before the seven experts even begin their discussion!  Check it out.

Can the State Department Facebook?

by Peter Spiro

Interesting interview at on public diplomacy and the use of social networking with Elliot Schrage, formerly of Google, now of Facebook (and author of a perceptive 2004 study on workplace codes of conduct).  No surpise, the State Department has a Facebook page.  Schrage has this to say about how governments should put these tools to work:

The challenge is, how do we move the dialogue away from a government-to-government dialogue, and more toward engaging citizens on the ground. I don’t think the United States has a particularly strong track record of doing that successfully. But I would say, based on my conversations with people in the new administration, they have a sensitivity to these issues and to [social media] as a priority like no other administration has had certainly since the dawn of the Internet era. So you’re going to see much more innovation, much more creativity. We have not yet designed the Internet equivalent, or the social networking equivalent, of Voice of America [the official radio and television broadcasting service of the U.S. government]. Voice of America was, for its time, an incredibly powerful tool. Incredibly powerful. But we have not yet come up with the tools and techniques for the social networking era that engage people in a way that the Voice of America really couldn’t, because it was constrained by being a one-way media.

Count me a skeptic.  The VOA in its ideal applications enjoyed a monopoly on information (at least when broadcasting to media-repressed societies), with all its advantages — even if it was a “one-way media” (something I bet they’re nostalgic for at State!).  That’s obviously not going to be replicated in the New World.  (Insurgencies and other nongovernmental entities, by contrast, can use it to their advantage — it is in that sense a leveler.)  Facebook users seem to be saying as much: State has a paltry 6000 “fans”, many fewer than does a mediocre baseball team across the Anacostia River.  Britney Spears has almost a million and a half.

Angelina Jolie Goes to Lubanga Trial at ICC

by Chris Borgen

People magazine reports:

Before heading to the glitz and glamour of the Cannes Film Festival in France, Angelina Jolie spent Tuesday in a courtside booth at The Hague in the Netherlands watching the prosecution of warlord Thomas Lubanga, calling it “a landmark trial for children.”

At one point, Jolie found herself under the watchful eye of Lubanga, the founder and former leader of the Union of Congolese Patriots, who allegedly recruited and used child soldiers, according to the Associated Press. “After watching the proceedings from the viewing booth, I stood up and found Thomas Lubanga Dyilo looking at me,” said the actress.

“I imagined how difficult it must be for all the brave young children who have come to testify against him,” said Jolie in a statement given to the International Criminal Court.

After meeting with the ICC’s chief prosecutor, Luis Moreno-Ocampo, Jolie headed to Cannes…

Angelina Jolie, as readers may know,  is a UNHCR goodwill ambassador. Besides this most recent visit to the Hague, the Jolie-Pitt Foundation had previously underwritten a Council on Foreign Relations symposium entitled International Law and Justice: Evolving Norms and U.S. Responses. Videos and transcripts from that conference are available here.

Jack Goldsmith on Similarities and Differences in National Security Between Obama and Bush

by Kenneth Anderson

Jack Goldsmith has a new essay out in The New Republic, “The Cheney Fallacy,” comparing the basic elements of the Obama and Bush national security and counterterrorism policies.  It walks through eleven core features of the national security-counterterrorism apparatus, from Guantanamo to targeted killing to interrogation, etc., and compares the two administrations.  It’s called the “Cheney Fallacy” because it rejects Cheney’s recent complaints that the Obama administration is dismantling the Bush era policies that kept the United States, in Cheney’s view, safe from attack.  On the contrary, says Jack, the Obama administration is not just largely following the Bush policies – it is doing so in ways that are, objectively speaking, tending to institutlonalize core elements and give them a legitimacy that they lacked under the Bush administration ….

Mom, Apple Pie, and the Hearsay Rule

by Kevin Jon Heller

Anonymous senior official in the Obama administration, 2009:

[T]he hearsay rule is not one of those things that is rooted in American values.

The Sixth Amendment to the United States Constitution, 1791:

In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.

Clinton (William Jefferson) to be Named SecGen’s Special Envoy to Haiti

by Peggy McGuinness

The news (not yet officially announced) that former President Bill Clinton will be named a Special Representative of the Secretary General Ban Ki-Moon to Haiti is surely unprecedented.  While ex-presidents, prime ministers, and foreign ministers have been called on in the past to serve as special envoys of the SecGen, I cannot recall an instance where the spouse of a sitting foreign minister has been named to such a post (correct me, readers, if I am wrong on this).  Given the large role the Clinton administration played in the events in Haiti in the 1990s, this special envoy brings a particular history and knowledge that are sure to influence the way he carries out his new mandate.  That might turn out to a good thing for the UN and for Haiti.  President Clinton is, of course, an enormously capable diplomat and mediator.  And his own interest in helping create a stable future for Haiti — as much for his own personal legacy as for the UN’s and for the people of Haiti — may be just be the alignment of interests needed in this situation.

Together with the news that former U.S. Ambassador to Afghansitan, Zalmay Khalilizad, may be joining the Afghan government, this week is shaping up to look like “exhibit A” for those, like Peter, who see the world moving into a post-citizenship/post-sovereigntist age of governance and leadership.

Dual Citizen, Supreme Court Justice

by Peter Spiro

There’s no legal obstacle to appointing a dual citizen to the Supreme Court.  In fact, in contrast to qualifications for Congress and the Presidency, the Constitution sets no citizenship requirements of any kind for justices of the Supreme Court.

Now it’s unlikely in the extreme that Obama will appoint a foreigner to the Court, although it would be an interesting little parlor game to come up with a short list composed of noncitizens only. 

But the prospect of a dual citizen on the Court is much less implausible.  Jennifer Granholm was born in Canada and may now (unwittingly) be a Canadian citizen.  The latest round of additional names includes at least one other foreign-born possibility.  (There have been a handful of justices born outside the United States — the most recent being Felix Frankfurter — but in a prior age much less tolerant of multiple allegiances none would have maintained their original nationality.)

I don’t think there would be anything wrong with a dual-citizen justice.  After all, the governor of our largest state has another nationality, and there is a global trend towards reassessing restrictions on dual citizen office-holding.  Loyalty objections are a red herring these days.  How would a justice who held another citizenship be compromised, at least in a way qualitatively different from other conflict-of-interest problems?  Plural citizenship is a fact of globalization; no reason our leaderships shouldn’t reflect it.

On Reviving the Commissions

by Deborah Pearlstein

There’s already been a good bit of thoughtful (see Dave Glazier) and not so thoughtful commentary about the Obama Administration’s decision to revive the commissions. I admit, news of the continuation of the commissions (in some revised form) hardly filled me with joy. But I’ve also been sorry to see rhetoric that seems to paint it at the end of the rule of law as we know it. It’s a limited solution to a problem with no good outcomes. Here’s my thinking.

First, why this decision? My best guess is the Fifth Amendment-based requirement that all statements by the defendant admitted into evidence be made voluntarily. Lemme reach back a ways to criminal procedure. This is the right Miranda (“You have the right to remain silent…”) is designed to protect – but it goes beyond Miranda. So presumably even if you read a suspect his Miranda rights, then you torture him to elicit a confession, the statement isn’t admissible. Like much of criminal law, whether a statement is “voluntary” is an inquiry into the totality of the circumstances (whether a suspect’s will has been overborne, etc.). Torture and abject cruel and inhuman treatment – now both excluded from the realm of commission admissible evidence – are probably not the only ways to render a statement involuntary. So imagine we’ve held someone in a detention facility for seven years – and imagine we’ve treated him fabulously well (let’s not complicate matters for the moment). We read him his Miranda rights after the first few years, but we’ve also made it clear to him that there’s no way he’s going anywhere anytime soon. He said on Day 1: “I am Al Qaeda and I was proud to spend 2002 shooting at Americans [under circumstances that violated the laws of war].” He said it again after he was Mirandized, and he continues to say it to this day. This is the only evidence (or information of any kind) about this guy we have. Would his statements be considered “voluntary” under the totality of the detention circumstances? Seems like one would be hard pressed to make a case in federal court that they were. I’ll be less than thrilled if a military commission concludes that they are (and even less happy – and view it as wrong as a matter of law – if a commission concludes that particular constitutional right doesn’t apply to Mr. Al Qaeda at all). But at least commission jurisprudence is its own isolated species. A decision to that effect in the federal courts – i.e. a decision that we can hold someone indefinitely up to seven years and his statements are still considered voluntary, a decision I’m guessing a federal court might well render in favor of prosecuting this guy – is precedent for everyone. So better cabin the damage and cut our losses. That’s the best argument in favor of this outcome I can make. I’m still not sure whether it’s true…

“Necessity Knows No Law”

by Roger Alford

Lately I have been doing extensive historical research on the development of international law and I came across this remarkable quote from the 1921 edition of Lassa Oppenheim’s International Law:

“A constant increase of population must in the end force upon a State the necessity of acquiring more territory, and if it cannot be acquired by peaceable means, acquisition by conquest alone remains…. [T]he awaking of national ambition, the craving for rich colonies, the desire of a land-locked State for a sea-coast, the endeavor … to become a world-Power … have been at work … in creating causes of war…. Necessity for a war implies its justification, whatever may be the cause.”

It was this mindset that led Germany to launch the First World War. When Germany violated Belgian territory on August 4, 1914 the German Chancellor’s justification was that “We are in need and necessity knows no law.”

Necessity knows no law. It’s an absolutely amazing assertion. When one examines the history of international law, one cannot help but marvel at the progress we have made in a few generations. Our grandparents lived in an age when territorial conquest and colonialism were common place. The idea of the peaceful settlement of disputes was only beginning to gain traction. A century ago major powers bombarded the ports of struggling nations to secure the repayment of public debt. Their dream was that perhaps one day, in the distant future, international society would organize itself in a way that provided for collective security and defense. They were struggling with how to regulate the potential military abuses of that great new technology: the air balloon. Human rights law, international criminal law, and international economic law were all in the future. In 1899, British Admiral Fisher scoffed at the idea that you could humanize war. “The humanizing of war! … You might as well talk of humanizing Hell! … The essence of war is violence. Moderation in war is imbecility. Hit first, hit hard, and hit anywhere.”

We have our struggles today. But anyone who is a student of international law cannot help but conclude that we have come a long way.

Rebel Leader Turns Himself In; Is Bashir Next? (Updated)

by Kevin Jon Heller

Pre-Trial Chamber I of the ICC has summoned Bahar Idriss Abu Garda, a Darfuri rebel leader, to appear before the court to face war crimes charges:

Abu Garda, member of the Zaghawa tribe of Sudan, is charged with three war crimes allegedly committed during an attack carried out on 29 September 2007 against the African Union Mission in Sudan (“AMIS”), a peace-keeping mission stationed at the Military Group Site Haskanita (“MGS Haskanita”), Umm Kadada locality, North Darfur.

Pre-Trial Chamber I considered that there are reasonable grounds to believe that the attack against the AMIS occurred in the context of an armed conflict not of an international character that existed in Darfur between the Government of Sudan and several organised armed groups at the time of the attack. It was allegedly carried out by splinter forces of the Justice and Equality Movement (“JEM”), under the command of Abu Garda, jointly with troops belonging to another armed group.

It is alleged that the attackers were approximately 1,000 persons armed with anti-aircraft guns, artillery guns and rocket-propelled grenade launchers. They allegedly killed twelve and severely wounded eight AMIS soldiers, destroyed communication, installations, dormitories, vehicles and other materials and appropriated property belonging to AMIS, including 17 vehicles, refrigerators, computers, cellular phones, military boots and uniforms, fuel, ammunition and money during and after the attack.

I am ambivalent about the prosecution.  On the one hand, as I have argued in my essay on situational gravity, an attack on peacekeepers is precisely the kind of crime that should be viewed as extremely grave despite not involving large numbers of victims.  On the other hand, ordinary Darfuris are overwhelmingly opposed to the prosecution — the rebels didn’t systematically kill, rape, and displace them; the Sudanese government did — and it will be a shame if the first case that makes it to the Court involves a rebel leader instead of Bashir, Haroun, or Kushayb.  It would be better, I think, if the OTP prosecuted an attack on peacekeepers that either involved government forces or involved rebel forces in a country in which the government wasn’t the more significant perpetrator of serious international crimes.

That said, it is difficult to deny that the prosecution will ratchet up the pressure on Bashir.  According to the ICC website and news reports, Abu Garda has already arrived at the Court to face the charges.  If a Darfuri rebel leader respects the Court enough to appear — an arrest warrant wasn’t even required — what possible rationale is there for Bashir not to do likewise?  And how can Bashir’s enablers in the international community continue to insist that the ICC’s efforts in Darfur are harming the peace process?

Kudos to Abu Garda for doing the right thing.  If his lawyers are out there reading this, I’m happy to lend a hand to his defense, pro bono!

UPDATE: Ah, the hypocrisy.  According to news reports, Senegal and Nigeria helped secure Abu Garda’s voluntary appearance before the ICC — the same Senegal and Nigeria that have insisted that the Security Council defer the ICC’s prosecution of Bashir.  Prosecuting genocidal dictators: impermissible.  Prosecuting rebels who oppose genocidal dictators: just fine.  Do we really need additional evidence that many of the countries who have criticized the ICC warrant for Bashir’s arrest are motivated not by concern for the peace process, but by a desire to see their crony escape justice? (Hat-Tip: Michelle at Stop Genocide.)

Informing Congress on Interrogation

by Kenneth Anderson

In the midst of the interrogation debate, Speaker Pelosi has called for more members of Congress to be informed of these things, and, it appears, about “covert” activities more generally:

 Speaker Pelosi said one other thing that deserves attention by people still hoping to save Washington from itself. She suggested that we “must review” the National Security Act of 1947 with an eye toward giving “larger numbers of Congress” access to classified briefings. This in the interest of “proper oversight.”

The National Security Act of 1947 that established the CIA and the specific requirements that Speaker Pelosi refers to, are codified as part of 50 USC 413b.  The section, which traces back to the Hughes-Ryan amendment and other modifications arising out of the 1970s Church Hearings, mandates that prior to authorizing any “covert action,” the President must first make a series of specific findings and, in addition, inform Congress of the action.  The WSJ editorial page slams Speaker Pelosi’s proposal for informing more members:

Is she serious? The mess that now engulfs her and other Democrats can be solved by giving more Congressfolk access to the nation’s most sensitive secrets? Only a Member of Congress could conclude that you can enhance political accountability by making it more diffuse.

Actually, in this matter, diffusion is an excellent idea.  This is a matter on which I have long parted company from the Journal’s editorial view (despite my general agreement with its national security stance), starting with a short (alas entirely ignored) piece in the New York Times Magazine in 2006, and in more detail in a Policy Review essay, Law and Terror, afterwards.  These pieces put me in the company of Ben Wittes and Jack Goldsmith, among a sizable group, who believe that a (the?) fundamental problem of domestic counterterrorism policy in the Bush administration was that, in order to preserve the maximum space for presidential action, the administration refused to go to Congress and work with it – a Republican Congress, no less – to come up with a shared policy.  What lives by executive discretion dies by executive discretion – or else by Justice Kennedy, unconstrained by the strongest of the Youngstown categories.  The policy of the United States in something so momentous and long-running as counterterrorism always needed to be a joint effort of the two political branches, speaking in concert.  That said, I have some technical questions about the statute and the briefing requirements …

Hearsay by Any Other Name Would Not Smell as Sweet

by Kevin Jon Heller

I realize that it’s foolish to expect accuracy from the Wall Street Journal‘s editorial page, but it has outdone itself with the following statement, part of an editorial lavishing praise on Obama for resurrecting the military commissions:

Another red herring is supposedly tightening the admissibility of hearsay evidence. Tribunal judges already have discretion to limit such evidence, and the current rules are nearly indistinguishable from those of the International Criminal Court.

There is one difference: all of the fact-finders at the ICC are professional judges, while all but one of the fact-finders in a military commission are laypersons.  And, of course, the ICC only admits hearsay because it assumes that professional judges, unlike laypersons, can objectively assess its reliability and probative value.  But hey, why split hairs?

I don’t know what’s worse: the sheer ridiculousness of the Wall Street Journal defending its editorial position by invoking the ICC or the sheer mendacity of the position itself.

Richard D. Rosen on Civilian Immunity

by Kenneth Anderson

Texas Tech professor and retired Army colonel Richard D. Rosen has a very fine new article up on Westlaw on targeting and civilian immunity.  It is a superb article – I myself am broadly in agreement with its sensible views on civilian immunity, human shields, sheltering among civilians, etc. – but even those who might disagree will find an outstandingly argued and researched piece.  The research is especially impressive and I commend the footnotes to you if you are mining things looking for sources on these topics.  Great argument, great piece – kudos to Professor Rosen, and might I recommend that he get it up onto SSRN so that others can access it worldwide?  Richard D. Rosen, Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity, 42 Vanderbilt Journal of Transnational Law 683 (May 2009).

Local Governments May Launch a Trade War

by Julian Ku

Here is an interesting example of the way that local governments, with encouragement and guidance by the national governments, are leading the US and Canada into a mini-trade war. 

Ordered by Congress to “buy American” when spending money from the $787 billion stimulus package, the town of Peru, Ind., stunned its Canadian supplier by rejecting sewage pumps made outside of Toronto. After a Navy official spotted Canadian pipe fittings in a construction project at Camp Pendleton, Calif., they were hauled out of the ground and replaced with American versions. In recent weeks, other Canadian manufacturers doing business with U.S. state and local governments say they have been besieged with requests to sign affidavits pledging that they will only supply materials made in the USA.

Outrage spread in Canada, with the Toronto Star last week bemoaning “a plague of protectionist measures in the U.S.” and Canadian companies openly fretting about having to shift jobs to the United States to meet made-in-the-USA requirements. This week, the Canadians fired back. A number of Ontario towns, with a collective population of nearly 500,000, retaliated with measures effectively barring U.S. companies from their municipal contracts — the first shot in a larger campaign that could shut U.S. companies out of billions of dollars worth of Canadian projects.


Although the article suggests there is no WTO remedy, I’m not so sure. Both the U.S. and Canada are parties to the Agreement on Government Procurement, which has a national treatment requirement in Article III .  It  is hard to imagine that there will not be WTO litigation about this down the road.

The Thomas More Center Invokes International Law to Protect Michael Savage?

by Julian Ku

The Thomas More Center has a sent a curious and oddly reasoned letter to the U,S. Secretary of State Clinton, demanding that she pressure the UK government to allow controversial (but popular) radio talk show host Michael Savage to enter the UK.   The Thomas More Center offers two international legal arguments in favor of a “right” for Savage to be admitted to the UK, the right to free expression in Article 19 of the ICCPR and Article 10 of the European Convention on Human Rights.  Does the ICCPR free expression right apply to governmental decisions to admit or exclude individuals? This seems like pretty weak arguments to me, almost embarassingly weak, but maybe I am missing something.

I Can’t Wait to See Neal Katyal’s Argument In Defense of Military Commissions

by Julian Ku

It’s official: President Obama is going to revive the use of military commissions to try war on terror suspects currently held in Guantanamo Bay.    Funny how he always announces these sorts of climb-downs on Fridays. 

The ACLU has vowed to litigate this, no matter what, so there will be at least one argument somewhere. If that’s the case, it would be really cool if the OLC memo on the legality of the new military commissions was drafted by blogger extraordinaire Marty Lederman (whose appointment was hailed as a strong signal that things were really going to change), and (even better), that Deputy Solicitor General Neal Katyal ends up defending the new commissions in court!  If that happens, I really hope someone reminds Neal of his 2007 Slate article:

[Military commission] trials are not “equal justice”: For the first time since equality was written into our Constitution, America has created one criminal trial for “us” and one for “them.” The rules for the Guantanamo trials apply only to foreigners—the millions of green-card holders and five billion people on the globe who are not American citizens. An American citizen, even one who commits the most horrible and treasonous act (such as the detonation of a weapon of mass destruction), gets the Cadillac version of justice—a criminal trial in federal court. Meanwhile, a green-card holder alleged to have committed a far less egregious offense gets the beat-up Chevy: a military commission at Guantanamo. Before that commission, that noncitizen will have few of the very rights America has championed abroad, and he can be sentenced to death….

Whatever else might be said about the Guantanamo courtroom, it will never symbolize America or what it is about.

Gaming Spain and Universal Jurisdiction

by Kenneth Anderson

In the course of discussion with journalists at the Brookings Institution meeting I mentioned below, one interesting side question arose.  In the course of the debates over Bush administration lawyers, and now Pelosi and the CIA, Republicans have publicly (and perhaps increasing numbers of Democrats privately, as the Pelosi debate gains strength) argued that Democrats should be careful what they wish for in the way of referrals for prosecution, truth commissions, etc., because it could come back to bite them, too.    I’ve made the argument myself, in the New York Times Room for Debate blog; John Bolton made it a couple of weeks ago in an op ed in the Washington Post, and so have many others.

The strategic gaming weakness of this argument has always been that the threat of legal action is not necessarily symmetrical as between Democrats and Republicans.  Possibly it is in the case of purely domestic actions; possibly not.  Here, however, I want to leave aside the question of symmetrical threat in the purely domestic context – and focus on the threat that comes from abroad.  I would guess that for many pushing US domestic processes, the real threat lies in indictment or the threat of one in Europe.  Actually, I don’t guess – I’ve had the conversation many times in the past couple of years and very possibly so have you.  Someone has likely said it somewhere here on OJ – the real threat is not being able to travel abroad and that will be John Yoo’s presumably ignominious fate as the Obama administration washes its hands of protecting former officials from threats of prosecutions for their official acts.  People are pretty familiar with the argument, whatever they think of it; I unsurprisingly do not wish it well, but that is not actually what interests me in this post.

Republicans have said, with a certain ominousness, that this (meaning the threat of European prosecution) will wind up applying equally to the Obama administration as to the Bush administration.  They conceive of it as a game of tit-for-tat.  Investigate us for interrogations and, even leaving aside Pelosi, eventually “someone” – read a future Republican AG Holder will investigate you for targeted killings.  Or not the Republican AG – because when the bloom is finally off the rose of the Obama administration, Europeans might decide that targeted killing using Predators in Pakistan warrants prosecutions, similar to what Spanish prosecutors have been dancing around for some time now in the case of Israel.  Again, John Bolton said exactly this in his op ed, and I have probably said as much somewhere or other.  As Bolton put it:

[F]irm and public statements are necessary to stop the pending Spanish inquisition and to dissuade others from proceeding. The president must abandon his Ehrlichman-like policy and pronounce unequivocally that Spain should take whatever steps are necessary to stop Garzón.

Otherwise, in four or eight years, like Mary Robinson before them [re Kosovo], future second-guessers will decide, say, that U.S. drone attacks in Pakistan constitute war crimes, and that former commander in chief Obama must be hauled before the bar of some mini-state to stand trial. After all, his decisions involve risking civilian deaths, not just shoving terrorists into a wall (and no protective neck braces, either).

Will President Obama’s successor vigorously dispute the legitimacy of foreign prosecutions, or will she follow the current Obama policy and let the foreign investigation proceed, perhaps even to trial? Obama and his advisers should think carefully about that second scenario — now.

But is the Republican assertion of symmetry true?  Or, better said, is it rational as an anticipation of European behavior?  It seems like a pretty straightforward game sequence to me, and one in which Republicans are playing a weak hand if they think the game is escalating tit-for-tat.  It isn’t tit-for-tat, it’s an alliance game.  Consider:

  • If Europeans target only Republicans (read Bush administration or, more broadly, the next Republican administration), then Democrats ally with them to endorse the threat of European prosecution.  The Democratic role would be to block any strong US government effort to prevent prosecution of its former officials, or USG move to force Europeans to back down from even making the threat.  
  • If, however, Europeans were to adopt the arguably principled position and go after both Republicans and Democrats (e.g., Pelosi, but also Obama officials if targeted killing were the next favored subject for prosecution), then Democrats would be much more likely to ally with Republicans as Americans and block European action.
  •  Result?  Europeans have much more alliance leverage if they target only Republicans and signal that Democrats and the Obama administration are exempt.  It is an instantiation of a broader point that on a variety of matters, Democrats think of their natural allies as the Europeans rather than Republicans and, for the Europeans, vice-versa (and perhaps not unrelated to Peter’s thesis about the decline of intra-American citizenship-solidarity, at least among American political elites, on certain core value and cultural issues).

Whatever one thinks of the merits of the positions, morally or legally, it is hard for me to think this is not the underlying strategic logic.  Certainly it’s what I think about every time I have offered the principled symmetry argument and wonder when someone is going to raise this obvious strategic objection.  But maybe I’m wrong about the strategic logic.  I invite comments particularly on the abstract question of the rationality, or not, of the strategy.  And also on whether anyone has any evidence one way or another to suggest that European and/or Democratic commentary or behavior tends to confirm or disconfirm the thesis.  No rants, please.

Guiora on National Security Courts (UPDATED)

by Chris Borgen

Amos Guiora has a link at National Security Advisors for his new article of domestic terror courts. He writes in his abstract:

President Barack Obama has stated that among his initial priorities as commander-in-chief is closing the United States detention facility in Guantanamo Bay. One of his first actions after taking office was to suspend all legal proceedings in Guantanamo so that “the newly inaugurated president and his administration [can] review the military commission’s process, generally, and the cases currently pending before military commissions, specifically.” To that end, on January 22, 2009, President Obama signed an executive order requiring the closure of the Guantanamo Bay detention facility within one year. This Order raises numerous, highly problematic questions including: What do we do with the current detainees? Where will they go? How will they be tried? Will they be tried? What shall be done with future terrorism suspects?Although President Obama has made his intentions clear, he has not, as of yet – according to media reports – determined what is the most effective manner to go forth with this enormously complex issue. Therefore, now is clearly the time to develop a working strategy to resolve the fundamental questions of where and how thousands of post-9/11 detainees are tried. For the reasons articulated below, I recommend establishing a domestic terror court (DTC) in the United States.

This article will detail the specific processes and procedures of such a court and seek to answer many of these difficult questions. In doing so, it is my hope that this article will act as a “guide” for policy makers in articulating, developing, and implementing a process from detention to trial of individuals suspected of involvement in terrorism. A lawful civilian process, subject to independent judicial review, is the constitutional, intellectual, and philosophical underpinning of this proposal. In detailing the nuts and bolts of the proposed DTC. Though I will briefly address why the DTC proposal should be adopted, the primary emphasis in this article is to fill in the blanks as to the workings of the court.

When the national security court idea was first being bandied around about two years ago, I was in favor of at least hearing-out the arguments. With time, I have become more and more skeptical of proposals for such courts. However, I have always found Guiora’s scholarship to be particularly thought-provoking and so I look forward to reading this new article…

UPDATE: And then there’s this announcement about the restart of the military commissions

Brookings Conference on Legislating Counterterrorism

by Kenneth Anderson

I spent the past two days at an excellent conference organized by Ben Wittes – we discussed his book Law and the Long War (which I see you can get for the bargain price of $6.99 on Amazon) here at OJ when it came out – on ways in which Congress should legislate the future of US counterterrorism.  The conference was held to discuss papers in a forthcoming Brookings volume on this topic; many of the authors of the book’s chapters were on hand to present their papers, and the audience included – drawing on Ben’s remarkable rolodex from his days at the Washington Post, among other things – many important journalists from US newspapers.  The Washington Times’s Jon Ward summed up the meeting here and here.  The general Brookings page on the forthcoming book is here, Legislating the War on Terror: An Agenda for Reform, and the Brookings site has op-ed length versions of some of the papers.  As the Obama administration moves forward on different fronts in counterterrorism reform – such as the detention scholars’ discussion that Deborah mentioned earlier and many other things, some controversial and some not – I’m convinced that the papers in this volume deserve very serious consideration.  Excepting my own, of course, they are all pretty practical and oriented toward legislation – this is policy writing, not scholarship – and the authors are all centrists of either party, and possessed of considerable expertise.

ASIL Seeking International Law Fellows for 2009-2010

by Peggy McGuinness

I apologize for the late posting of this — the deadline for applicants is TOMORROW, May 15.  This would be a terrific opportunity for those newly minted JDs who have the option (as Roger discussed here) to be paid by their law firm for an outside volunteer opportunity with an NGO:

The American Society of International Law (ASIL) invites applicants for three International Law Fellow positions at the ASIL headquarters in Washington, D.C. The Fellows will be responsible for implementing a number of the Society’s research, education, and outreach programs. The positions are full-time, unpaid, and of a 6- to 12-month duration. They are intended for recent law graduates in the early stages of an international legal career and in particular for those deferring the start-date of permanent employment due to the economic downturn.

International Law Fellow Responsibilities

International Law Fellows will work under the direct supervision of the ASIL Executive Director and will be responsible for the implementation of a number of ASIL research, education, and outreach programs. Responsibilities may include development and implementation of continuing legal education programs for Society members; support for ASIL’s judicial outreach program, including coordination of judicial training programs and the development and revision of educational materials on international law for the judiciary; the development of a new website providing resources for international law teaching; support for ASIL’s careers in international law program; organization of regular Tillar House briefings on current issues in international law; and general research and editorial support for ASIL publications, including ASIL Insights, International Law in Brief, the American Journal of International Law, International Legal Materials, ASIL Studies in Transnational Legal Policy, and the ASIL Discussion Paper series.


Successful applicants will have a graduate degree in law (J.D. or LL.M.), strong writing and editorial skills, experience working in a professional environment and on program implementation, and a demonstrated interest in international law. Experience working on a journal and coursework or work experience in international law are strongly preferred. Positions require the ability, initiative, and judgment to work independently and to successfully implement projects from beginning to end.

Application Requirements

To apply, please send a cover letter, resume, unedited writing sample (no more than a 10-page excerpt), and references to jobs [at] asil [dot] org, with “Law Fellow” in the subject line, by May 15, 2009.

Dawn Johnsen’s Nomination Is in Trouble (Updated)

by Kevin Jon Heller

It’s certainly not over yet, but it isn’t looking good:

As Senate Majority Leader Harry Reid (D-Nev.) moves to ease a backlog of executive branch nominations, he suggested on Tuesday that he does not have the votes to bring up President Barack Obama’s pick to run the Department of Justice’s Office of Legal Counsel.

“Right now we’re finding out when to do that,” Reid said, responding to a question about the status of Indiana University law professor Dawn Johnsen’s nomination to the Justice post. “We need a couple Republican votes until we can get to 60.”

As Christy Hardin Smith has pointed out, the White House has done virtually nothing to support Johnsen’s nomination since, you know, it nominated her.  I guess it’s been too busy blackmailing the UK into concealing evidence of the Bush administration’s torture of Binyam Mohamed, walking back its promise to release the additional photos of torture in Afghanistan and Iraq, and avoiding putting an end to Don’t Ask, Don’t Tell.

UPDATE: And the reversal on the photographs is complete.  It even includes parroting the Bush administration’s line that their release will further fan the flames of anti-Americanism.  Obama also claims that he fears “the publication of these photos may only have a chilling effect on future investigations of detainee abuse” — which is ironic, given that Obama is doing everything he can to avoid such investigations.  What he really means is that publication of the photos will have a chilling effect on his ability to cover up the Bush administration’s crimes, because they will further fan the flames of outrage at the Bush administration. What pathetic double-speak.

How Not to Argue That Waterboarding Isn’t Torture

by Kevin Jon Heller

With a few obvious exceptions, I try to avoid directly criticizing scholars with whom I disagree.  But I feel compelled to say a few words about a recent Jurist editorial in which a professor, a former Army JAG (a group for whom I have the utmost respect), argues that waterboarding is not torture.  (It also argues that a CIA interrogator would be “certainly able” to raise the defense of necessity, an idea I’ve criticized before.)

The editorial’s argument proceeds in four steps.  First, it notes, correctly, that the Torture Convention does not itself define what acts inflict severe physical or mental pain or suffering.  Second, it claims, also correctly, that one way to determine what acts qualify as torture is to examine prior judicial decisions that address the issue.  Third, it argues, with some justification, that the leading international case interpreting “severe pain or suffering” is Ireland v. United Kingdom, decided by the European Court of Human Rights in 1978.

But then comes the fourth step, in which the editorial argues that Ireland indicates that waterboarding is not torture — and there the editorial goes off the rails.  Here are the relevant paragraphs…

John Yoo, Columnist

by Kevin Jon Heller

You have got to be kidding:

John Yoo has written freelance commentaries for The Inquirer since 2005, however he entered into a contract to write a monthly column in late 2008. I won’t discuss the compensation of anyone who writes for us. Of course, we know more about Mr. Yoo’s actions in the Justice Department now than we did at the time we contracted him. But we did not blindly enter into our agreement. He’s a Philadelphian, and very knowledgeable about the legal subjects he discusses in his commentaries. Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts, including measures taken by the White House post-9/11. That has promoted further discourse, which is the objective of newspaper commentary (emphasis in original).

I think the Philadelphia Inquirer needs a new name.  I suggest the National Enquirer.

More Foreign Compacts!

by Duncan Hollis

Last week, I blogged about my recent symposium contribution, examining what role the Executive plays in U.S. state agreements with foreign governments, whether national or sub-national in character.  Since then, I’ve posted a much bigger piece that’s forthcoming in the Texas Law Review Unpacking the Compact Clause (you can download it here).  Building on my earlier work, this article examines actual U.S. state practice and questions whether the Constitution contains one or two Compact Clauses.  Here’s the abstract:

The Compact Clause prohibits U.S. states from making “any Agreement or Compact with another State, or with a foreign Power” absent congressional consent. No one, however, has ever studied the Clause’s application to agreements by foreign powers with U.S. states (FSAs). The conventional wisdom views FSAs as infrequent, unimportant, and otherwise identical to those interstate compacts for which the Supreme Court has opined congressional consent is generally unnecessary.

My article explains why the conventional wisdom is wrong on all counts. For the first time, I present a typology of 340 FSAs and show how they are increasing in both number and importance. The states have simply not reported their practice to the federal government.

More importantly, my article introduces the idea that the Constitution contains not one Compact Clause, but two – one for interstate compacts and another for FSAs. Using text, history, doctrine, function, and structure, I demonstrate how Congress can dictate for itself when states must obtain congressional approval of FSAs, independent of the interstate compact doctrine devised by the Court. In doing so, my work aims to demonstrate that the Court is not the only actor that can construct constitutional meaning; Congress has its own powers to interpret the constitutional text outside the courtroom. Ultimately, my article shows that, despite some costs, a Foreign Compact Clause will benefit states, their foreign partners, the federal government, and even our understanding of federalism as a cooperative venture, rather than just a competitive one.

What About Lustration?

by Kevin Jon Heller

I am obviously on record as supporting the criminal prosecution of the individuals involved in the CIA’s torture regime — the interrogators who inflicted it, the military and government officials who ordered it, the OLC lawyers who rationalized it.  Such prosecutions are, unfortunately, extremely unlikely — at least in the United States.  Moreover, there does not seem to be any other way to discipline the responsible individuals.  We do not know who the interrogators are.  The Bush administration officials are out of office and out of power, at least until the next Republican is elected president.  Bybee is unlikely to be impeached, no matter what the chatter (and doing so might be unconstitutional).  And the statute of limitations for bringing a misconduct complaint against John Yoo appears to have already run.

There is, however, another possibility – one that steers a middle course between criminally prosecuting the torturers and letting them off the hook completely: lustration.  Derived from the Latin word “lustratio,” meaning “purification by sacrifice or by purging,” lustration refers to a transitional-justice process in which individuals involved in government misconduct are legislatively prohibited from holding certain governmental and non-governmental posts for a specified amount of time.

Lustration has a long history, although the concept is perhaps most closely associated with the laws passed by formerly communist countries in Eastern Europe following the collapse of the Soviet Union…

The ACLU Needs to Dial Down the Rhetoric!

by Kevin Jon Heller

I rarely have reason to criticize the ACLU, so I feel obligated to respond to Anthony Romero’s statement concerning the possibility that Obama’s revamped military commissions would continue to admit hearsay under certain circumstances:

Romero said allowing hearsay in any U.S. courtroom [would be] a “greater travesty than Bush administration justice.”

I doubt that any amount of revamping would fix the basic defects of the military commissions, such as their jurisdiction over offences that do not actually violate the laws of war (conspiracy and material support for terrorism foremost among them).  And I am skeptical that the revamped commissions would contain sufficient procedural safeguards to justify admitting hearsay, such as requiring all of the finders of fact to be professional judges.  That said, it is simply ridiculous to claim that the very idea of admitting hearsay is worse than the endless list of judicial atrocities brought to us courtesy of the Bush administration — the Military Commissions Act itself foremost among them.  Hearsay has been admitted at every international tribunal since Nuremberg, without calamitous results.  And it is difficult to argue that the admissibility of hearsay in civil-law systems means that defendants in the vast majority of the world’s countries routinely receive unfair trials.

I applaud the ACLU for taking a stand against reviving the military commissions.  And I hope that revamped military commissions would not admit hearsay, because I certainly don’t trust the Obama administration to make the procedural reforms necessary to ensure that it is admitted fairly.  But overheated rhetoric like Romero’s does more harm than good.

Pork Wars? Canada Readies WTO Case Against U.S. Meat Labeling Rules

by Julian Ku

It seems the new Secretary of Agriculture may be provoking another round of trade litigation with Canada.

Canada took action against the United States at the World Trade Organization on Thursday over a U.S. meat labeling law that Canadian producers say has hurt their hog and cattle sales.Ottawa requested a further round of consultations, a formal step that will enable it to request a WTO dispute settlement panel after 60 days if talks with the United States do not resolve its concerns.


The issue is over a new rule that forces U.S. meat packers to include the country of origin on their product labels. Canada had requested WTO consultations last year but then suspended its action after Washington revised the final version to make it more flexible.


But before the law went into effect on March 16, U.S. Agriculture Secretary Tom Vilsack warned meat packers he would rewrite it unless they voluntarily made labels more explicit.


“Recent instructions from the U.S. secretary of agriculture encouraging U.S. industry to use very strict labeling practices have removed the flexibility previously envisioned in the legislation and will affect the ability of our cattle and hog exporters to compete fairly in the U.S. market,” Canadian Trade Minister Stockwell Day said

Is the an International Human Right to Have an Abortion? Amnesty International Seems to Think So.

by Julian Ku

This is obviously not an objective source, but it is interesting to see the trends in international human rights law advocacy overseas.  Abortion used to be a no-no subject for NGOs like Amnesty, and still is for some groups like Human Rights First.  But, if this report is correct, Amnesty International has gotten off the fence on this question. I don’t mean to criticize them for adopting a pro-abortion rights view, but as a legal and political matter in the United States, this is going to be used by domestic anti-abortion groups as another reason to oppose U.S. participation in international human rights treaties.

Sovereigntism’s Last Stand? Congressmen Form a Sovereignty Caucus

by Julian Ku

Peter may be amused that there is now a “Sovereignty Caucus” in the U.S. Congress.  Not surprisingly, their first target is the Koh nomination. Maybe sovereigntism is quite dead.

Can the Arab League “Sue” Israel in the ICJ?

by Julian Ku

Here is an interesting but ultimately futile act: 

Arab Foreign Ministers meeting in Cairo on Thursday decided to file a lawsuit with the International Court of Justice against the Israeli occupation government for its drive to Judaize Jerusalem.

A diplomatic source at the Arab League said that the ministers had three issues on their agenda; dangers engulfing Jerusalem, discussion of the report by the committee commissioned to investigate Israeli war crimes during the war on Gaza and to reach a common Arab stand towards the latest developments in the Arab-Israeli conflict.

It all sounds very good, but what is that source of ICJ jurisdiction? Or will it be another General Assembly referral?

DR Congo Passes Amnesty Law

by Peggy McGuinness

As the BBC reports here, the DR Congo parliament has passed an amnesty law for “acts of war” committed by militia in the eastern provinces of North Kivu and South Kivu.  Although it looks aimed to assist the ongoing peace process within the DRC, the granting of an amnesty for only DR nationals (foreign fighters are not included) and then only for acts committed in these two provinces is sure to provoke some objections from outside the DRC.  It also raises the vexing question of the effect of these kinds of domestic amnesties on the peace process and on ongoing war crimes investigations and proceedings — both within the DRC and at the ICC.   The law appears not to extend any immunity to individuals who are accused of war crimes.   President Kabila will need to sign the legislation before it becomes law. The BBC notes:

[The amnesty] will include “acts of war” committed since 2003 but does not offer amnesty to those accused of war crimes such as rebel leader Laurent Nkunda. Gen Nkunda remains in detention in Rwanda since his arrest in January. DR Congo has applied for his extradition.A Tutsi like Rwanda’s leaders, Gen Nkunda had guarded Rwanda’s western flank against attacks ethnic Rwandan Hutu rebels – the Democratic Front for the Liberation of Rwanda (FDLR) – some of whose leaders have been linked to the 1994 Rwandan genocide.

Government spokesman Lambert Mende told the BBC the amnesty would only to apply to Congolese militia and would not cover crimes committed by foreign rebel groups.

Public Interest Fellowships for Deferred Law Firm Associates

by Roger Alford

I continue to read stories of law firms who are encouraging their associates to take a paid leave-of-absence next year. As reported here, Skadden is offering associates $80,000 to take a year off. Morrison & Foerster reportedly will pay incoming associates approximately $85,000 if they will defer their start date until January 2011. Many other firms, including Latham & Watkins, Dechert, Alston & Bird, Morgan Lewis, and Weil Gotshal, reportedly (see here, here, here, here, and here) will pay in excess of $75,000 if incoming associates will simply defer their start dates.

The catch is that these associates must work for a public interest organization in the meantime. Let me repeat, the catch is that these brilliant, talented, young eager associates must work for a public interest organization for little or no pay if they wish to receive over $75,000 in salary from their current or future law firm.

If you are a public interest organization, this is like manna from heaven. Human rights NGOs, law school clinics, public interest law firms, all potentially are unintended third party beneficiaries of these remarkable deferred start-date packages. The question is how to link up these wonderful associates with public interest organizations. If you are either an incoming associate who has been offered one of these deferred state-date packages, or if you work for a public interest organization that could benefit from outstanding free labor, I would encourage you to notify me or post a comment expressing interest in this match made in heaven.

I have little doubt that my school, for one, could find some wonderful pro bono international public interest or human rights clinical work for you to do in Malibu, California for an academic year. Seriously.

No, Andrew, “Specific Intent” Does Not Equal “Evil Motive”

by Kevin Jon Heller

I was intrigued by Julian’s post on Andrew McCarthy’s latest screed for National Review Online, so I read what McCarthy had to say.  His argument boils down to this: (1) the Obama administration argues in Demjanjuk that torture is a specific-intent crime; (2) Yoo and Bybee argued in the infamous OLC memos that torture is a specific-intent crime; (3) the Obama’s administration’s intimations that it might pursue some sort of disciplinary action against Yoo and Bybee are thus shamefully hypocritical.

McCarthy, however, fundamentally misunderstands both the Convention Against Torture (CAT) and the meaning of specific intent.  The relevant paragraph is this one (emphasis in the original):

Construing federal anti-torture law — which is derived from the United Nations Convention Against Torture (CAT) — Bybee and Yoo’s memoranda stressed that torture is a “specific intent” crime.  As the lawyers concluded after studying the relevant history, this means it was narrowly drawn by Congress and the ratifiers of CAT to make certain that only those who had an evil motive to inflict severe pain and suffering could be prosecuted. That is, even if the victim of government abuse would surely feel severe pain and suffering, there could be no finding of torture unless the responsible government official was acting with a deliberate and conscious purpose to torture him.

Like Bybee and Yoo before him, McCarthy has no idea what he is talking about…

Has the Obama Justice Department Adopted the Bybee/Yoo Interpretation of the Torture Statute?

by Julian Ku

Yes it has! At least according to Andrew McCarthy, who argues in this National Review article that the Obama administration’s brief in a case seeking to uphold its decision to deport Demjanjuk adopted the same narrow interpretation of the U.S. torture statute’s requirement of specific intent as the much-vilified Yoo/Bybee memos.

….[E]ven after Obama declared himself open to the possibility of criminal prosecution against the Bush officials, and even after Holder promised to conduct an investigation that would “follow the evidence wherever it takes us, follow the law wherever that takes us” (emphasis added), the Obama Justice Department is relying on the very same legal analysis in order to urge a federal appeals court to reject torture claims. In fact, as the Obama Justice Department argued to that appeals court a little over a week ago, the torture law analysis in question has already been adopted by another federal appeals court.

I am sympathetic to Deborah’s criticsm of McCarthy’s recent somewhat over-the-top letter rejecting an offer to participate in deliberations on detention policy with the Justice Department. But his legal analysis seems sound here. McCarthy is right to point out that the Yoo/Bybee memos adopted a really narrow view of specific intent under the torture statute.  This narrow view, which the Obama Justice Department appears to have adopted, was also adopted by the Third Circuit in Pierre v. Mukasey.

Specific intent requires not simply the general intent to accomplish an act with no particular end in mind, but the additional deliberate and conscious purpose of accomplishing a specific and prohibited result. Mere knowledge that a result is substantially certain to follow from one’s actions is not sufficient to form the specific intent to torture. Knowledge that pain and suffering will be the certain outcome of conduct may be sufficient for a finding of general intent but it is not enough for a finding of specific intent.

I’m not sure this analysis would necessarily get the CIA interrogators off the hook, because one might argue that they intended to cause severe pain and suffering, and not just knew it would happen. The other controversial part of the analysis is, of course, what exactly constitutes “severe pain.”

Still, McCarthy is right that it is very odd, if not outright hypocritical, for Obama and Holder to suggest criminal prosecutions are appropriate or even ethical charges for, at least in part, adopting interpretations of the torture statute endorsed by ten judges on the Third Circuit as well as their own Justice Department.  (By the way, John Yoo, at least, will definitely avoid any ethics reprimands).

All of this makes me think that, at least in the U.S, the criminal case against the Bybee/Yoo memos is very, very weak and even the ethics complaints are probably going nowhere (as Geoffrey Hazard seems to agree). Everyone should simply admit this is simply a disagreement (a very serious disagreement) about the legal interpretation of a statute.  In the old days (pre-2001), we used to have disagreements about questions of statutory interpretation. Today, though, we prefer to accuse people of war crimes.  I like the good old days, but then again people often call me a conservative….

Soliciting Detention Views

by Deborah Pearlstein

With leaks and rumors flying fast and furious (and uncomfirmable) in D.C. this week about what the Administration is likely to decide to do with the remaining Gitmo detainees, it’s no surprise the detention debate is again heating up. If you haven’t seen it already, take a look at Lindsay Graham and John McCain’s op-ed in the Wall Street Journal today. Hope to blog about that a bit later.

But the entry that takes the audacity cake so far has to be Andrew McCarthy’s public letter to the Obama Administration task force (the one working on detention policy generally, not about Guantanamo per se) in which he declines to participate in its proceedings. The detention task force, set to report to the President on its initial findings in July, is starting to bring in groups of experts and interested parties for roundtable discussions about detention options going forward. Responding to an invitation from the task force to join them for a meeting of current and former prosecutors with terrorism prosecution experience, McCarthy (a former prosecutor) responded with a public letter (conveniently available here) rejecting the invitation. The gist? McCarthy won’t be joining in the meeting because (a) if the Administration is willing to prosecute John Yoo, “any prudent lawyer would have to hesitate before offering advice to the government” (for fear of later prosecution I take it); and (b) the task force only wants to know what he thinks so they can later say they consulted widely and McCarthy refuses to be co-opted in that manner.

Now I’ve sat on panels with McCarthy in the past, and while we disagree on various things, in these limited encounters I’ve never found him to be foolish or ill-motivated or anything of the sort. But this is just silly. Set aside the widespread conventional wisdom that U.S. criminal prosecution of John Yoo is highly unlikely at this point. McCarthy seriously thinks the Administration is going to launch a criminal investigation of some non-government-employee think-tanker who shows up at a policy roundtable to offer his thoughts? As for fears of co-optation, he could certainly protest any such exploitation of this kind of meeting if and when the time comes. In the meantime, what would McCarthy recommend? That the task force not solicit a wide range of views on detention policy, and the strengths and weaknesses of the criminal justice system in this regard?

McCarthy’s insistence that the Administration has already made up its mind on these matters because of the announced closure of Guantanamo just doesn’t hold up. The Administration came up with two separate task forces on these matters for a reason. One is to deal with the unique disaster that is the symbolism and reality of Guantanamo Bay (a policy so widely recognized as a failure even the President who started it thought it should be closed). (And if the Administration hasn’t already warned the public that there are no good solutions to be had in cleaning up that particular mess, now would be a good time to start saying that. A lot.) Another task force is meant to deal with what kind of detention authority is needed going forward. That is, it’s a task force that recognizes the need for the United States to detain some people in the interest of counterterrorism, and wants to understand how best to go about it. That’s the task force that wanted to listen to McCarthy. A shame he didn’t at least try talking to them directly.

McCarthy probably shouldn’t be faulted for using his meeting invitation as a platform for wider dissemination of his own views on detention (also featured in his book, which gets a decent plug in McCarthy’s letter explaining his reasons for declining the invitation). The detention debate is tough, people feel strongly, and we all want the outcome we think is right. All the more reason for the unelected among us to make our cases on the merits.

The Elusive Foreign Compact

by Duncan Hollis

I’ve just posted a piece I did for Peggy’s (great) Missouri v. Holland conference last year, entitled The Elusive Foreign Compact.  Granted I’m weeks (if not months) behind other participants in getting my contribution posted (see, e.g., here and here).  Hopefully, however, this is a case of better late than never.  For those who might be interested, here’s the abstract:

This symposium essay identifies and explains Congress’s inactivity in exercising its Compact Clause power in the foreign context. The Constitution prohibits U.S. states from concluding treaties, alliances or confederations, and gives Congress the power to approve “any Agreement or Compact” by a U.S. state with a foreign power. Congress, however, has consented to a mere handful of foreign compacts, even though U.S. states have concluded hundreds of agreements with foreign governments in recent years. How has the Compact Clause become so dormant? I argue that Congress’s inaction is a function of judicial and executive action. The Supreme Court’s rulings have greatly limited when Congress must consent to foreign compacts, suggesting the states have their own power to make many foreign agreements free from congressional oversight or approval. At the same time, the Executive has come to police the constitutional propriety of U.S. state agreements with foreign governments.

This essay focuses on the informational, functional and structural challenges of having the Executive act as a surrogate for Congress in overseeing state agreements abroad. First, executive oversight has done little to remedy a growing informational deficit on what agreements U.S. states are making with foreign governments. Second, even if the Executive knew what the states were doing, it lacks the functional capacity to control such state activity. Third, having the Executive interpret for Congress the scope of Congress’s power raises separation of powers concerns. Taken together, these problems suggest a need for closer scrutiny of U.S. state practice overseas and a more robust congressional role in monitoring and approving foreign compacts.

Joint IO Statement on the Flu (The Seeds of World Government?)

by Peter Spiro

Steve Charnovitz has this interesting post at the IELP Blog about a joint statement on the swine A(H1N1) flu virus issued by the FAO, WHO, WTO, and OIE (extra credit to those of you already on to the last one: the World Organization for Animal Health).  Steve quite plausibly challenges the WTO’s authority to make this kind of pronouncement as an example of institutional “mission creep.”.

My question: what are the modalities of coordination among these IOs?  I assume there are standing committees and the like.  We hear a lot about fragmentation among IOs; what about cooperation?  Perhaps this breed of transnational network will end up being more important than the intergovernmental one.

Dodd on Torture and Nuremberg

by Kevin Jon Heller

Invoking the legacy of Nuremberg, Sen. Chris Dodd (D-CT) came out yesterday in support of prosecuting members of the Bush administration responsible for waterboarding. His position on prosecutions is interesting in its own right, but I want to use his comments for a different purpose — to plug a collection of letters that his father, Thomas Dodd, wrote to his mother about his experiences as a prosecutor at the IMT:

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It’s a wonderful collection, and by all accounts the elder Dodd was an exceptional prosecutor — interrogating such leading figures as Alfred Rosenberg, Albert Speer, Joachim von Ribbentrop, and Rudolf Hess.

UPDATE: I have edited the post to reflect John Q. Barrett’s comment below.  Never trust a publisher!

Setting Aside the Great Game to Play the Beautiful Game

by Chris Borgen

The “beautiful game” is what Pele calls soccer (yes, I know, “football” to the rest of the world besides the US).  On April 25th, diplomats from the UN, including the Secretary-General, set aside the great game of diplomacy to play a game of soccer at New York’s Chelsea Piers to support the non-governmental organization Play31. Play31’s website explains that:

Play31 was founded on the basis of Article 31 of The Convention on the Rights of the Child, which stipulates that every child has the right to play. We provide children in different parts of the world with a most basic necessity for play: a football. We believe that the game of football has unifying power, and our goal is to work with local organizations who can use the “beautiful game” as a pathway toward creating peaceful societies.

A CNN report gives some more background:

Jakob Lund, the 26-year-old founder and president of Play31, was inspired to launch his program after spending time in Sierra Leone, a nation ravaged by 11 years of civil strife.

“We use soccer as a facilitator for people meeting each other and for people simply just interacting … and I think that is something true for football is that it can transcend borders, languages, races, everything that we see can normally divide people — on the football field, it can unite them, and that’s what is so special.”

Players in the “Diplomatch” included the Ambassadors from Chile, Lichtenstein, Bosnia, Timor Leste, Paraguay and the United Kingdom, as well as Secretary-General Ban Ki-moon and was kicked-off by UN’s Special Representative on the Children in Armed Conflict Radhika Coomaraswamy. Pictures from the game are available here.

Play31’s site explained:

With the match comprised of diplomats, the game took on a very technical character. Both teams opted for the offensive and creative style of FC Barcelona over the traditional style of international peacekeepers. Consequently, no referee was required. Instead, a council of 192 countries was used to officiate.* …

*Only kidding– Thanks to Matthias Stausberg for being our referee

One team was captained by Chile, the other by Liechtenstein. The Secretary-General played one half for each team, just like Pele in his final game, who played one half with the NY Cosmos and one half with the Brazil All-Stars. But I digress.

Play31’s site summarizes the event nicely:

The game ended in a 6-4 victory for Team Liechtenstein. But more importantly it ended with participants speaking to the media about the important work of Play31. It was a moment of pride to see such respected individuals remarking on how football can be used as a powerful tool in working toward reconciliation in post war societies. Play31 is proud to be a part of this work. And remember– we rely on your donations to keep our work alive.

Some say that soccer explains the world. Maybe. But I do hope it can change the lives of some kids. That, as far as I’m concerned, would be more than enough.

Hearts of Darkness

by Chris Borgen

It has gone all but unnoticed in the U.S. but Russia has declared victory in its fight against Chechen rebels. Chechnya had become a byword for a place of chaos and random violence perpetrated by all sides, especially since the first Chechen War of 1994-1996.   But a recent report by the Times of London concerning Russian black operations in the region since the Second Chechen War of 1999 shows a level of brutality by both Russian forces and Chechen rebels that is utterly horrific. The Times reports:

The account is one of a series given to The Sunday Times by two special forces officers who fought the militants in Chechnya over a period of 10 years. Their testimony, the first of its kind to a foreign journalist, provides startling insights into the operation of secret Russian death squads during one of the most brutal conflicts since the second world war.

The men, decorated veterans of more than 40 tours of duty in Chechnya, said not only suspected rebels but also people close to them were systematically tracked, abducted, tortured and killed. Intelligence was often extracted by breaking their limbs with a hammer, administering electric shocks and forcing men to perform sexual acts on each other. The bodies were either buried in unmarked pits or pulverised.

Far from being the work of a few ruthless mavericks, such methods were widely used among special forces, the men said. They were backed by their superiors on the understanding that operations were to be carried out covertly and that any officers who were caught risked prosecution: the Russian government publicly condemns torture and extrajudicial killings and denies that its army committed war crimes in Chechnya.

In one example, a group of Russian commandos searching for female suicide bombers captured three suspects:

The soldiers were responding to a tip-off that the eldest of the three, who was in her forties, had been indoctrinating women to sacrifice themselves in Chechnya’s ferocious war between Islamic militants and the Russians. The others captured with her were her latest recruits. One was barely 15.

“At first the older one denied everything,” said a senior special forces officer last week. “Then we roughed her up and gave her electric shocks. She provided us with good information. Once we were done with her we shot her in the head.

“We disposed of her body in a field. We placed an artillery shell between her legs and one over her chest, added several 200-gram TNT blocks and blew her to smithereens. The trick is to make sure absolutely nothing is left. No body, no proof, no problem.” The technique was known as pulverisation.

The young recruits were taken away by another unit for further interrogation before they, too, were executed.

More on “Hearts of Darkness” after the “Continue Reading” jump…

William Ranney Levi on Interrogation Techniques

by Kenneth Anderson

William Ranney Levi’s paper on interrogation techniques, Interrogation’s Law, is forthcoming in Yale Law Journal, but is up at SSRN.  Here is the abstract:

Conventional wisdom states that recent U.S. authorization of coercive interrogation techniques, and the legal decisions that sanctioned them, constitute a dramatic break with the past. This is false. U.S. interrogation policy well prior to 9/11 has allowed a great deal more flexibility than the high-minded legal prohibitions of coercive tactics would suggest: all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before. The conventional wisdom thus elides an intrinsic characteristic of all former and current laws on interrogation: they are vague and contestable, and thus, when context so demands, manipulable.

The paper is starting to circulate beyond academic law circles because, of course, of its relevance to the question of criminality in sanctioning or advising on interrogation techniques. David Shribman, for example, makes note of it in a column this week at RealClearPolitics.  I’ve just started reading it, so I can’t comment.  But even just starting into it, the paper struck me as one that will occasion much debate, and that OJ readers might be interested in getting word of it sooner rather than later.

Shribman says the following of the article, although I have no idea whether this is an accurate characterization of Levi’s use of elite law professor interlocutors:

But far below the surface of the noisy Washington and cable-television conversation is a quieter but very serious debate, sparked by the circulation in elite legal circles in recent days of an Internet version of a forthcoming article in the Yale Law Journal that argues that “all interrogation methods allegedly authorized since 9/11, with the possible exception of waterboarding, have been authorized before.”

This article, by William Ranney Levi, is significant as much for its intellectual provenance as it is for its contents. Levi, part of one of the most distinguished legal families in the nation, exposed his argument to the rigorous review of several leading legal minds, conservative and liberal, some of whom doubtlessly disagree with him.

He cites consultations with Jack L. Goldsmith, the conservative Harvard law professor who resigned from the Bush Justice Department and later expressed qualms over the Bush anti-terrorism legal rationale; Harold H. Koh, the dean of the Yale Law School and a leading human rights activist who has been nominated by Obama to be legal adviser to the State Department; Mariano-Florentino Cuellar, a Stanford law professor in the Obama inner ring; and Martin S. Lederman, a Georgetown law professor and fierce Bush critic who is the president’s choice for a leadership position in the powerful and prestigious Office of Legal Counsel at the Justice Department.

Mark Osiel, The End of Reciprocity

by Kenneth Anderson

University of Iowa law professor Mark Osiel – an old friend of mine and someone well known to many of us, particularly for his books and writing on mass atrocities – has a new book out, The End of Reciprocity: Terror, Torture, and the Law of War (Cambridge 2009).  It just arrived and I’ve read it at pretty high speed – looking for some specific issues on targeted killing, mostly, but I still read it and the notes all the way through – and I want to highly recommend it to our readers.  Incisive – it manages to engage across a wide range of methodologies and fields in law and related disciplines, and goes particularly deeply into the moral philosophy of many of these issues.  Mark has a graceful, ever-so-slightly acerbic writing style, one that I enjoy reading more than most academic writing. The issue of reciprocity is, indeed, every bit as crucial as Mark says.

A Very Successful Potomac Roundtable at GW

by Kenneth Anderson

Congratulations to Ed Swaine and Sean Murphy for yesterday’s Potomac Roundtable on foreign relations law at GW.  It was a terrific meeting, with excellent papers from Kristina Daugirdas, Louis Fisher, and Ed Swaine – topics ranging from FSIA to war powers to Youngstown.  I learned a lot – Duncan was also in attendance from Philly – and it was great to meet informally with a wonderful group of colleagues from the area.  The larger DC region boasts wonderful scholars at many different schools, and yet it is rare that people actually meet up.  Great meeting and thanks for organizing it!

Back to Military Commissions?

by Kenneth Anderson

Julian beats me to the military commissions story.  But now my question.  Are these military commission procedures going to be reserved, for example, solely for the “legacy” detainees at Guantanamo?  But is it not possible that the United States might capture, or have turned over to it, at some point in the future some new detainee – what happens then?

Obama May Use Military Commissions After All

by Julian Ku

So I’m not exactly surprised that Obama is planning to revive the use of military commissions to try terror suspects, (according to the NYT). 

The Obama administration is moving toward reviving the military commission system for prosecuting Guantánamo detainees, which was a target of critics during the Bush administration, including Mr. Obama himself.

No doubt there will be some amendment to the Bush commissions, but I doubt it will be really extensive.  And this whole thing makes sense as a practical matter. Creating new National Security Courts would take even longer and would no doubt raise new legal questions that will have to be litigated. So it’s the military commissions or federal courts.  If that’s the choice, I am not shocked if Obama chooses to go with military commissions.  Because he is not named George Bush, though, I expect very little pushback.

Souter’s Departure and an Internationalist Court

by Peter Spiro

The conventional wisdom is probably correct here, that David Souter’s retirement won’t make much of a difference to the Court’s overall balance.  But no two Justices are alike.  There will be inevitable differences in style and approach, and on the less prominent questions, the ones mostly off the radar screen, that can lead to different votes.  I don’t know much about Souter’s business law jurisprudence, for example, and I doubt that anyone will focus on how it differs from the nominee to replace him. (More here on how his departure may shake things up from Jonathan Adler.)

Might IL-related cases pose another such area?  One of Souter’s many, many charms is that he is most definitely not a product of globalization.  You won’t find him trailing along the other justices for European summer junkets; I doubt very much that he would self-identify as a member of the global community of courts.  If only as a generational matter, his successor will almost surely have more of an international orientation.  At least one pick on everyone’s short list, Diane Wood of the 7th Circuit, would bring serious IL depth to the Court.

Not that Souter has resisted the use of international law.  He joined the Atkins-Lawrence-Roper trilogy and the detainee decisions.  But he wasn’t out front in using international and foreign law in the way of Breyer, Ginsburg, and Kennedy.  His replacement might be, now especially that Harold Koh’s nomination as State Department Legal Adviser has shown sovereigntism up as a spent political force.  (Koh himself appears on some nominee slates.  One wonders if he might have gotten a tougher reception if his hearing had been next week rather than this.)

Less visibly, Garamendi, Crosby, and Sosa, where Souter wrote for the majority on foreign relations federalism and the Alien Tort Statute, are where one might see an altered dynamic.  Sosa’s split-the-difference caution might be up for grabs, with a likely return of the ATS to the docket rather than later.  In Crosby and then Garamendi, he worked from old-line premise of federal supremacy.  That carried the day in Garamendi by only a single vote, with Ginsburg, Stevens, Scalia, and Thomas in dissent.  Garamendi is already under stress after Medellin, with Roberts replacing Rehnquist (another example of how ideological confreres can go their different ways).  One question you won’t hear in any confirmation hearing:  how do you feel about Barclays Bank v. Franchise Tax Board?  Its revival may be among the new directions of a reconstituted Court.

Setting the Record Straight on Rosa Brooks

by Laura Dickinson

[ Laura Dickinson is Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

It seems that in some quarters, support for international law (combined with a little bit of humor) is enough to get one labeled “so out there” to be unqualified for government service. A few commentators on the right have recently decided to attack international law scholar and former L.A. Times columnist Rosa Brooks, who just accepted a position as an adviser to Undersecretary of Defense Michele Flournoy. For example, Bill O’Reilly recently called Brooks a “radical leftist” whose appointment was “madness.”

These kinds of assertions are so unjustified that I thought it was important to set the record straight. Brooks, with whom I worked at the State Department in 1999 and 2000, has routinely adopted moderate positions that are well within the mainstream of our political culture. To take one example, in a column from February, 2009, Brooks advocated for a long-term U.S. presence in Afghanistan. In a 2004 article published in the University of Pennsylvania Law Review, Brooks contended that in the face of challenges posed by terrorism, we ought to consider scrapping many elements of the law of war framework embedded in the Geneva Conventions. Indeed, as to this point, some commentators have criticized Brooks’ position for potentially opening the door to watered down protections of individual rights.

The claims of O’Reilly and others are based on quotations taken completely out of context and ignore both the underlying arguments that Brooks has made, as well as her (quite vigorous) sense of humor. One comment that drew O’Reilly’s ire, for example, was her statement in a December, 2008 column that the man who threw the shoes at President Bush “reminded the powerful and powerless alike that a single symbolic gesture can be more effective than a thousand grenades.” O’Reilly chastised Brooks because in his view she “supported” the shoe-thrower. Yet he neglected to mention that Brooks actually opened the column with the assertion that she was not supporting him: “I’m not defending Muntather Zaidi, the Iraqi journalist who flung both his shoes at President George W. Bush during a Baghdad news conference.” The column, taken as a whole, is actually a strong condemnation of terrorist violence. Another Brooks statement that O’Reilly picks on was her claim in an October 2007 column that “George W. Bush and Dick Cheney shouldn’t be treated like criminals who deserve punishment. They should be treated like psychotics who need treatment.” Here O’Reilly fails to note that Brooks is making a joke. In fact, the overall point of the column is to argue against those calling for the impeachment of then President Bush and Vice President Cheney.

And with respect to another comment by Brooks, it is just hard to fathom how O’Reilly could view it as extremist. In a March 2009 column, Brooks asserted that, “The Bush administration’s big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture.” Last night, President Obama noted that waterboarding, an interrogation technique authorized by Bush administration lawyers, was torture. Indeed, the United States prosecuted Japanese war criminals for the practice after World War II. The legal memos that authorized this practice neglected to cite important precedents and stretched the law beyond recognition. Under these circumstances, it is hardly radical to call the acts of torture that these memos authorized “shameful.” Indeed, one might argue that the true radicals are those who fail to acknowledge the shamefulness of these incidents.