Yes, it’s true, according to the Lieutenant Governor of South Carolina, Andre Bauer. A U.S. District Court held this week that a State-sponsored vehicle license plate featuring a cross superimposed over a stained glass window with the words “I Believe” violates the First Amendment's Establishment Clause. As reported by The State newspaper, the Lt. Governor declared in response that the ruling was...
On Friday, November 13, the International Legal Theory Interest Group of the ASIL will sponsor a scintillating event on the role of ethics in international law. The event will be held in Washington D.C. at the Tillar House and the Cosmos Club. Details here. Here's the breakdown of the panel discussion: Panel 1: Ethics in Public International Law (9:15)...
The Draft Articles on the Responsibility of International Organizations (“RIO”) provide that for an internationally wrongful act to occur, (i) the conduct must be attributable to the IO under international law, and (ii) constitute a breach of an international obligation of that IO. Greg Fox will be blogging on the important question of attribution later this week. ...
Another day, another attempt by the Registry to undermine the fairness of Dr. Karadzic's trial. Rule 3.3 of the Registry's Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused provides that a self-representing defendant's legal team is entitled to be paid for "a maximum of 150 out-of-court preparation hours...
I owe many thanks to Kevin, and the Opinio Juris community, for inviting me to join the conversation.
Although it has been in circulation for over a month now, I find myself still mulling Andrew Sullivan’s provocative open letter, Dear President Bush, in October issue of the Atlantic. It is a unique and thoughtful approach to the problem of torture and responsibility.
Sullivan’s letter unflinchingly describes official practices and acts during the Bush years as torture.
“The point of this letter, Mr. President, is to beg you to finally take responsibility for this stain on American honor and this burden on a war we must win. It is to plead with you to own what happened under your command, and to reject categorically the phony legalisms, criminal destruction of crucial evidence, and retrospective rationalizations used to pretend that none of this happened. It happened. You once said, “I’m worried about a culture that says . . . ‘If you’ve got a problem . . . blame somebody else.’” I am asking you to stop blaming others for the consequences of decisions you made.”
Why must President Bush take responsibility? For one, Sullivan claims that “[N]o previous American president has imported the tools of torture into the very heart of the American system of government as you did.” Moreover, “[B]y condoning torture, by allowing it to take place, and by your vice president’s continuing defense and championing of torture as compatible with American traditions, you have done enormous damage to America’s role as a beacon of freedom and to the rule of law.” Finally, regarding the policies and actions taken in violation of the Geneva Conventions and other laws, Sullivan writes: “The responsibility for all of this is yours—before the American people and before the court of history. And you need finally to own these decisions, to take full responsibility for them, to account for them, to explain them, and yes, to apologize for their scope and brutality.”
Why not hold all official actors who authorized, justified, and perpetrated torture accountable? Why President Bush alone? Sullivan believes ignoring the evidence of torture and war crimes is not an option, but neither is seeking to prosecute high officials such as President Bush or his vice president, because to do so would be even more damaging to the polity. Prosecuting lower officials would be to persist in scapegoating under a “few bad apples” theory. Thus, Sullivan arrives at a model he attributes to Ronald Reagan: “Only you can move this country forward by taking full responsibility for the past and supporting the current president in his abolition of torture and abuse.” Citing Reagan’s 1987 speech in which he took responsibility for trading arms for hostages in Iran, Sullivan continues:
Sullivan’s approach is unique. It is a direct appeal, using direct address. I have a number of questions, however. If President Bush were to take responsibility as Sullivan eloquently requests, would that really “help restore this country’s reputation.”? Is restoring our reputation the main objective? What is the objective of any call for accountability? Sullivan’s call sounds in the language of reconciliation, language he explicitly deploys in his letter. But is reconciliation the right discourse? One view regarding the relation between torture and responsibility, is that where it might seem an viable response to conditions of necessity ex ante, any official who succumbs to the temptation to torture must be held to account ex post (I discuss this more here). The process of holding officials responsible is one where other governing bodies, as well as the sovereign people, get to pass judgment on actions taken in their name. By contrast, Sullivan’s approach seems to accept at least one premise of executive unilateralism by focusing on the unilateral responsibility of the executive.“You may not have intended to torture people, but you did; you may have acted to protect the country within the law, but that admirable desire too easily slid into your approval of actions that are indefensible, illegal, and deeply damaging to America’s reputation and honor. You were let down, as Reagan was. He took responsibility. You need to as well.”
[caption id="attachment_10102" align="alignright" width="101" caption=" "][/caption] The Yale Journal of International Law (YJIL) has announced the launch of its new website, http://www.yjil.org, featuring unique online content for the first time in its thirty-five year history. YJIL Online provides authors a forum for short analytical essays relevant to the furtherance of both scholarship and practice. The first issue includes a co-authored piece...
I'm sorry I wasn't and I don't quite know what happened. I knew that big things were happening, but unlike Peggy's experience, it all seemed very gradual to me and finally anti-climactic. It seemed like something that was gradually sliding into place. I credit that to two things. One was that I was working in a Manhattan law firm, and completely...
As I reported here, the two cases of Sullivan v. Florida and Graham v. Florida present the best opportunity for constitutional comparativism since Roper v. Simmons. We apparently are an international outlier and the Convention on the Rights of the Child, with 190 parties, categorically prohibits JLWOP for everyone under the age of eighteen. But from reading the transcripts...
The 6th Committee of the GA recently finished its first reading of the 66 draft Articles on the Responsibility of International Organizations (“RIO”). The draft articles create rules on when international organizations can be held responsible for internationally wrongful acts under international law. In other words, when can international organizations ("IOs") sue or be sued?...
Like many of you over a certain age, I have been thinking a lot about where I was when the Berlin Wall fell: driving with a friend from Montreal to my parents house in New Jersey, listening to dispatches from Berlin over the radio. My father was glued to the television set when we finally pulled in sometime in...
Tommy Crocker, who teaches constitutional law and criminal procedure at the University of South Carolina School of Law, will be guest-blogging with us for the next two weeks. Tommy writes on a variety of issues, including torture and the First Amendment. His work has appeared the UCLA Law Review, the Texas Law Review, Fordham Law Review, and the peer-reviewed Law...
Following up on Ken's post (whose views I totally endorse, by the way), I wanted to flag one UN budgetary issue of particular interest to our readers. As the NYT article details, UN budget negotiators will battle over whether each of the ICJ's 15 judges should have a law clerk. They currently share nine. Former ICJ President Roslyn Higgins made an...
