This story from the New York Times about the corruption of Teodoro Obiang certainly hits close to home. His $35 million dollar estate in Malibu is just down the hill from Pepperdine. Several times a year, Teodoro Nguema Obiang arrives at the doorstep of the United States from his home in Equatorial Guinea, on his way to his...
I am forwarding this call for papers from Tim Waters at Indiana to be presented at a forthcoming conference on the Milosevic trial. Looks like a great event. The Indiana University Maurer School of Law, Russian and East European Institute and Center for West European Studies announce a major conference in Bloomington, Indiana on February 18-21, 2010. The conference...
One of the contributing authors of the failed executive unilateralism criticizes the Obama Adminstration’s decision to prosecute KSM in New York because “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism.” Criminal trials must be very harmful activities if they will “cripple” U.S. anti-terrorism efforts. How will they do that? Writing in the WSJ, John Yoo argues: “Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown.” The openness required by criminal trials is the purported harm. Why would this prosecution be any more harmful that the prosecution of Jose Padilla or Zacharias Moussaoui, for example, or Ahmad Omar Abu Ali for that matter? The criticism repeats as its primary evidence of harm an unsubstantiated claim regarding intelligence losses that occurred because of the prosecution of Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing. No doubt, care will have to be taken in how the U.S. prosecutes its case, but the alarmist claim that anti-terrorism will be “crippled” belies credibility. This issue, however, is not the only one Yoo raises, and not the one that primarily interests me.
He further claims: “Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights?” He then asks a series of additional questions about pre-trial procedure in a “war zone.” As bad as revealing U.S. intelligence sources may be, “even more harmful” would be the requirement that U.S. officials recognize that terrorism suspects have rights, such as the right to be free from coerced (tortured) confession. Focusing on Miranda is telling, since Yoo was instrumental in providing the legal authorization for U.S. torture practices. Here we get at the heart of the “war versus crime” dichotomy motivating critics like Yoo: “KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens. …” Or, any person within the jurisdiction of the U.S., an important point Yoo still fails to recognize. The “war on terror” was said by Alberto Gonzales to be a “new kind of war” rendering “quaint” some of the rights afforded by the Geneva conventions. This temperament carries over to hostility to granting terrorism suspects constitutional rights in criminal trials, but fails to articulate how adherence to constitutional and human rights norms can themselves be “even more harmful to our national security.” How is it even remotely plausible to claim that if U.S. personnel must conduct themselves in rough conformity to constitutional (and by implication, human rights) norms, even greater harm to our national security will occur? In making this claim, Yoo reveals that one motivation for the "new kind of war" model is the attempt to free U.S. officials from certain constitutional and human rights constraints. Freedom from legal constraint may have its pragmatic advantages, at least in the short run. This mistaken view is one reason executive unilateralism has led in the long run to an ad hoc detention policy, repaired in part only after the Supreme Court held that detainees were in fact protected by Geneva and were in fact entitled to U.S. court jurisdiction.
Untethered from an institutionally unrealizable executive unilateralism, there does not seem to be much purpose in reasserting a need for officials to act free from constitutional and human rights constraints. So why do we see this view reappear as a reason why criminal trials of terrorists cause “even more harm” to national security?
The Fifth Circuit earlier this month issued a highly unusual decision addressing whether state law could "reverse preempt" the New York Convention. As any student of international arbitration knows, state law occasionally attempts to limit the enforceability of arbitration agreements. Such a policy is preempted by the New York Convention as implemented by the Federal Arbitration Act. ...
I’d like to thank the folks at Opinio Juris for inviting me to reflect on the emerging body of rules addressing the responsibility of international organizations. My post will address the question of attribution and will continue Kristen Boone’s prior discussion of particularly controversial aspects of IO responsibility. The question of whether internationally wrongful acts are attributable to an international...
[caption id="attachment_10567" align="alignright" width="150" caption=" "][/caption] I'm fascinated by the mini-kerfuffle (on the Right at least) over President Obama's propensity to bow when meeting foreign heads of state who are also royalty (see his super-bow to the Emperor of Japan to the right). In the old days, this type of stuff was really important. Students of Chinese history may recall that one...
The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity. A Canadian Court recently sentenced Désiré Munyaneza, a former Rwandan Army officer, to life imprisonment with eligibility for parole following his conviction in May for...
Cross-posted at Balkinization Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not...
Richard Goldstone is getting lots of flak for his recent report on the conflict in Gaza. Much of this flak is either undeserved or way over the top. But the unreasonableness of some of his critics does not mean his report was actually good and wise and fair. The basic problem, as I see it, was that Goldstone and...
Unless something rather dramatic happens, the Obama Administration is going to give up on its self-imposed January 22, 2010 deadline for closing prison facilities at Guantanamo Bay. The Center for American Progress, a reliable barometer of the Administration's thinking, has also advised against meeting the deadline. As a legal matter, it is not obvious that closing Gitmo would have made much...
From our friends at George Washington Law School: The George Washington University International Law Review is now accepting submissions of book reviews for publication in Volumes 41 and 42. Book reviews should be written on a recent or forthcoming book discussing a timely issue in international law. Word count should not exceed 9000 words. Submissions must be in Microsoft Word (.doc)...
For those around DC this upcoming Monday afternoon, there is a very interesting panel discussion organized jointly by the ABA International Section, ASIL, and SAIS on the ICC. It will feature a screening of an excerpt from the documentary The Reckoning, and then a panel discussion that will have Gary Solis, Jane Stromseth, John Bellinger, and me, and moderated by...
