Archive for
April, 2011

Lindseth Replies: Some Closing Thoughts on Power and Legitimacy

by Peter Lindseth

Let me thank Fernanda, Francesca, and Ken for their tremendously thoughtful comments on my new book, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010). And let me also thank once again everyone at Opinio Juris for providing space for this discussion. I hope the readers have found the exercise as stimulating and enjoyable as I have.

It was Giandomenico Majone, as Fernanda’s post rightly points out, who refocused scholarly attention in the 1990s on integration’s relationship to administrative governance on the national level. His well known characterization of European bodies as an “independent fourth branch of government” certainly pointed toward an underlying reality; indeed, it arguably hearkened back to an understanding of European integration that was prevalent at its outset. Majone’s interpretation also helped to spawn a whole social-science literature on supranational delegation and “non-majoritarian institutions” that my book both draws upon but also seeks to transcend. The key drawback in that literature—something that Ken’s post arguably alludes to—is that social scientists have often treated the choice for delegation in general (and for supranational delegation in particular) as driven by a rationalist logic “outside of time,” one without a normative, social, and political history of its own. My book tries to take that history more seriously, seeking to refocus attention on the specifically legal-cultural (indeed, social-psychological) dimension of the process of institutional change.

Such a refocusing requires, in the context of integration, an effort to understand how delegation came to be “experienced” as an appropriate foundation for administrative governance, not just in the 1950s but also before and after. But I hasten to add that my book is primarily a historical synthesis, outlining a conceptual framework and research agenda for the future. My stress is on institutional practices and the conceptions of legitimacy they seem to reflect. I would certainly welcome future researchers testing my analysis against the sources that Francesca’s post, for example, suggests could be explored more deeply. But I would equally stress that it is on the level of institutional practice, not in the writings of legal scholars, that my book discerns integration’s deep, but often overlooked, convergence around the normative principles and legitimating structures of administrative governance.

These principles and structures, most importantly “delegation” and “mediated legitimacy,” are elements of a more constructivist “logic of appropriateness” by which modern public law has reconciled the separation of power and legitimacy in administrative governance. It is in understanding this process of reconciliation—again, very much a social-psychological phenomenon, as Ken nicely emphasizes—that one can begin to appreciate how and why, in modern administrative governance, notions of hierarchical control gave way to looser forms of oversight as an acceptable means of legitimating the diffuse and fragmented forms of regulatory decision-making. As Francesca’s post also points out, this effort has certainly been imbued with constitutional values (“fundamental rights, interest representation, local government empowerment, judicial review for minimum standards of rationality, and so on”). But that does not mean that the recipients of delegated power (again, whether within or beyond the state) have themselves been experienced as democratic or constitutional in their own right. I maintain that supranational administrative governance needs national oversight, if not full-blown control, because Europeans have, to date, found it impossible to “experience” EU institutions on the same level as the “constituted” bodies of the nation-state in a historically and culturally recognizable sense.

Even as European elites have found it expedient to delegate significant regulatory power to these supranational bodies, Europeans more broadly have resisted the idea of the EU as autonomously democratic and constitutional. The evolution of European public law, defined to encompass both the national and supranational levels, arguably reflects this deeper resistance. To paraphrase Lincoln’s classic formulation, Europeans are not (yet) prepared to see supranational institutions as “government of the people.” Two decades before Lincoln, in Democracy in America, Tocqueville toyed with similar ideas, juxtaposing the “centralization of government” in legislative assemblies with the “decentralization of administration.” In European integration, the historically “constituted” bodies of the nation-state, despite their many flaws, have remained the privileged expressions of this Tocquevillean “centralization of government,” as well as of Lincoln’s “government of the people.” Supranational institutions, by contrast, are experienced primarily as new manifestations of the “decentralization of administration.” European institutions may exercise significant regulatory power, but their autonomous legitimacy is wanting. And it is in the realm of European public law that one can discern the ongoing struggle to find a workable reconciliation between the two. The alternative, as Ken’s post eloquently suggests, is a truly Weberian nightmare—bureaucratic domination without any check by representative government, one capable of breaking through the varied and often questionable claims of technocratic “expertise,” whether within or beyond the state.

Peter Lindseth and the Concept of Legitimacy

by Kenneth Anderson

I did not want to let the opportunity slip by to offer one comment on Peter Lindseth’s fine book – but not from the standpoint of the EU, on which I am not an expert.  Instead, I wanted to comment and commend the discussion of legitimacy in the book, both early in an abstract sense and throughout the text in application to Peter’s overall argument about the nature of the EU.

Following Weber, one could say that legitimacy is the quality of a social order whereby individuals in society internalize, in a psychological sense, not merely a habit or custom of obedience to it legally and politically, but a genuine belief in that social, political, and legal order.  It is not merely the observable behavior of customary obedience, but a belief that it ought to be obeyed by the members of that community.  It has an intentional psychology.

In this sense, the theory of legitimacy is (a) psychological and located within individuals; (b) a psychology with respect to a social order, first, and its political and legal institutions second; and (c) genuinely “intentional” and not merely “behavioral.”  Peter gives an outstanding theoretical account of the concept of legitimacy and I commend it to everyone – and I have put my money where my mouth is and sent it to a political scientist friend with whom I am writing on legitimacy.

I want to note, however, something beyond Peter’s account – “beyond” because what I say below does not really say much about the EU debates over legitimacy and its scope. The way in which I have characterized legitimacy above deliberately emphasizes that the currently reigning intellectual crown jewel in legal scholarship, law and economics in either its rationalist or behavioral economics form, has difficulty taking on legitimacy.  Why?  Because of its irreducibly psychological character.

Weber would have accepted that legitimacy is not morally substantive and tied to some moral principle of legitimacy as such.  But he would not have accepted that it is merely obedience, or the observation of its surface habit.  The interior belief that the moral order “ought” to be obeyed is not captured by the observation of surface habitants that they do regularly obey.  Yet the latter reductivism is embraced – celebrated – by today’s move to re-define legal theory as social science.  Whatever the benefits of observable phenomena, they do not include a place for the “ought,” at least not in the thick sense that Weber believed necessary to sustain, well, legitimacy.  Accordingly, Weber was attentive to the conditions under which that interior psychological condition would thrive, which again carries his views beyond those of today’s legal behaviorists.

That is with respect to the reductivist turn of much contemporary legal theory, at least the stuff at the intellectual cutting edge.  However, those of us not among the avant garde on this issue, who do take seriously the genuinely psychological, are constrained to point out a difficulty for legitimacy as often applied in international law and organizations.  Thomas Franck was careful in his famous book to note that precisely because of the psychological and social aspect of legitimacy, at least in the Weberian tradition, it could apply only by analogy to nation-states in the supposed community of nations and within international organizations.  States do not have the same direct psychological qualities to give so full a measure of legitimacy as individuals.  “A politics, not a society,” is how I have sometimes summed it up; the international community is at most a politics, but it is not a society, and the legitimacy that Weber describes is that of a society.

There have been various ingenious attempts to show how actual social communities are created within international organizations and their members, institutions, organs, etc.; usually these involve some reference to the coalescence of elites among themselves in a sort of horizontal globalization.  One either finds this comforting or alarming, depending upon one’s view of the Global New Class; regular readers have no difficulty identifying my view.

But this brings us back to Peter’s account of legitimacy and the EU.  The EU, on his account, shares some features of the legitimacy of a society, but incompletely, because Europe is not truly a society.  It shares some features of the legitimacy of the purely political, but incompletely, because it is more than merely an agglomeration of states.  It lacks the features of legitimacy that would give it the social legitimacy that – surprisingly, to many legal theorists, because it is “social” – is necessary to a constitutional order.  It has the legitimacy that corresponds to a dense form of the administrative state.  I agree with Peter about that; I question whether that is substantively so desirable, because the administrative state is ordinarily understood – again, on Weberian terms, to presage what (in the language of the critical theory journal Telos) is the “Wholly Administered Society” as conceptualized by New Class elites across Europe.  But ultimately this is a set of judgments and tradeoffs that only the peoples of Europe can make, even if that is descriptively what I think I see.  There is a form of legitimacy here, and it is not shallow.  But it is not constitutionalism, and it is not sovereignty as such, let alone popular sovereignty; it is administration.  It is legitimate for some things and not for others.

The practical lesson of this careful teasing out of sources, types, and kinds of legitimacy is to always ask – “Legitimate for what?”  Mistakes about that can do lasting damage, in many directions.  In that, I should hope that senior intellectuals of the EU project, especially at a moment when the stability of things that are ordinarily keys to legitimacy in a social, political, and legal order – money and fiat currency – are at least partly at issue, would ask themselves what legitimacy they hold in their hands.  To find out, or at least have a set of categories by which to evaluate that question, they could certainly do worse than reading Peter’s book.  But they would find it uncomfortable, bracing reading.

We are at an odd moment in the intellectual discussion of legitimacy.  For a sizable part of the political science discipline, and the branch of legal theory that sees itself as social science, legitimacy is a hollow concept.  Too hollow, in fact.  They need to re-think their reductivism.  For a different intellectual community, however – a large part of the international law community, the problem is that the concept is not too thin – it is too thick.  The international law theorists believe in legitimacy – so much so that they imagine that whatever the project that week, their institutions, favored actors, and structures must surely have the legitimacy necessary to carry them out.  Sometimes they do, when their aims are modest; very often they do not.  The realm of the international – it’s a politics, not a society, after all.

Ban Ki-moon Wants to Give Me $6.3 Million!

by Kevin Jon Heller

Honestly, he does.  The email doesn’t lie:

Attention, Beneficiary

Due to the petitions received by the UN, I Secretary-General Ban ki-moon from all over the continent in regards to the fraudulent activities going on in the West Africa sub-region with security’s agent and diplomats who has been delaying people’s funds, consignment and valuables in their custody and demand outrageous fees to get their consignment released to them.

We have been having meeting for 7 months which ended days ago with the former Secretary-General (Hon. Kofi Annan) to the UNITED NATIONS. However, We went to the African head quarters in NIGERIA on the 15TH OCTOBER, 2010 and set up this committee with sole aim of settling all these anomalies and due to that we are contacting you today in that regards.

This email is to all people that have been scammed in any part of the world, the UNITED NATIONS have agreed to compensate them with the sum of US$ 6,300,000.00 This includes every foriegn contractors that may have not received their contract sum, and people that have had an unfinished transaction or international businesses that failed due to Government problems etc.

We found your name in our list and that is why we are contacting you, these have been agreed upon and have been duly signed. Therefore, we are happy to inform you that an arrangement has perfectly been concluded to effect your payment as soon as possible in our bid to be very transparent.

However, it is our pleasure to inform you that your ATM Card Number: 5428 0500 1100 4432 has been approved and upgraded in your favor. Meanwhile, your Secret Pin Number will be available as soon as you confirm to us the receipt of your ATM CARD.

The ATM Card Value is $6,300,000.00 USD Only. You are advised that a maximum withdrawal value of US$4,000.00 is permitted daily. And its is duly inter-switched and you can make withdrawal in any location of the ATM Center of your choice/nearest to you any where in the world. We have also concluded delivery arrangement with our accredited courier service Company to oversee the delivery of the ATM Card to you without any further delay.

Be informed that your response would be by telephone or through email Only.

Any further delay will be the pleasure of the UNRC to use your fund to help the people who have been displaced in Darfur, Sudan Africa which you can see it in this site www.savedarfur.org and the Tsunami’s victims in Asia. So you are hereby advice to forward to this office Director ATM SWIFT CARD Department. Therefore, you should send him your full Name and telephone number/your correct mailing address where you want him to send the ATM to you.

Contact Person Apostle (Dr.) Hayford Ikponmwonsa Alile immediately for your ATM SWIFT CARD. E-mail:dr [dot] hayfordsalille [at] one [dot] co [dot] il  We are working according to the constitution binding this committee as well as helping the less privilege through this means. You will be required to contact the above mentioned institution via telephone or email. Hoping to hear from you as soon as you receive your ATM

1.YOUR FULL NAME …………….
2.PHONE AND FAX NUMBER……………
3.ADDRESS WERE YOU WANT US TO SEND THE ATM CARD……………
4.A Copy Of Your Identity Attached To e-mail

Regards,
Mr. Ban Ki-moon
Secretary-General (UNITED NATIONS) ©.http://www.un.org/sg/biography.shtml

I’m a bit torn about what to do with my new-found fortune. Since I’m limited to $4,000 per day, it will take about four years for me to withdraw all the money. Perhaps I should just let the money be given to the IDP in Darfur, instead.

And who knew the UN issued ATM cards?

One View of the Sausage Factory

by James Tierney

Thanks to Roger and everyone at Opinio Juris for giving me this opportunity to pen some thoughts about law journal submissions. I hope to provide an inside look at how the sausage is made—and in so doing, shed light on some trends evident from our side that might be less apparent from your side. Because journals treat submissions practices like trade secrets, I’m constrained in how candid I can be. I should also emphasize at the outset that these opinions and observations are my own, not those of the University of Chicago Law Review. They shouldn’t be taken to reflect or represent the policies, practices, or experiences, of that journal (except where specifically noted). Besides, in order to make my comments more generalizable, I’ll be abstracting away from my particular experiences as appropriate, drawing upon conversations I’ve had with editors at other journals.

I’ll start with two ugly truths about article submissions. The first is that there simply isn’t enough time to review every article with the depth and attention that they deserve. The most popular journals may receive upwards of several thousand unsolicited article submissions each year. The details are different from journal to journal, but professors seem generally to adhere to a bimodal submissions schedule (spring and fall submissions periods). The time crunch arising from this schedule only compounds the problem, as I explain at the end of this post. Of course, I expect that at most journals, editors make (and take seriously) a commitment to give every submission at least one read. Even so, this review will not always be as thorough as would be commensurate with the substantial labor investments authors make in writing articles.

If this means that there needs to be a cursory review stage early in an article’s submissions life cycle, the second ugly truth is that articles can be quickly sorted at a cursory review stage into two piles—”reject” or “consider further.” The upshot is that more articles are likely to survive initial review than one might expect. Journals have different policies about these things, and individual editors have their own idiosyncratic preferences. These will manifest in rather divergent first-cut culling rates across journals, so your mileage may vary. In future posts I hope to explain some pitfalls that lead editors to put an article in the first pile, and some factors that may make editors more likely put an article into the second pile. For now, it’s enough to admit that law review editors turn to imperfect proxies in evaluating submissions. After all, as Brian Tamanaha observed a few years back, we are “students, after all, with classes, exams, and jobs.” He also added that we have “limited knowledge about law.” This is overstated, for journal boards will aim to have different competencies represented in their articles group—someone who can evaluate bankruptcy pieces, someone who can evaluate international law pieces, etc. (I will return to this point in a later post about agenda-setters.) I disagree with Tamanaha’s suggestion that author identity—the “elite letterhead”—is the most obvious proxy of article quality. The identity of an author’s institution likely correlates, if loosely, with the quality of her prior work. But the quality of the author’s current work is what editors care about. And my claim is that even 3L editors with “limited knowledge about law” are often attuned to the quality of articles on their merits.

So let’s take elite letterhead off the table and replace it with a more likely suspect: the request for expedited review. This allows editors at the later-in-time journal to capture signaling benefits that accrue from the deliberative labor of editors at the earlier journal—all without incurring the review costs themselves. Most importantly, there are opportunity costs involved in selecting one article over another. Page space is scarce. Articles board members will rationally care about the articles they publish in their volume, either for intrinsic reasons (interest in the subject, interest in sending a message, interest in academia), or for the reputational benefits that accrue from being affiliated with any marginally higher-“quality” article. Additionally, there are costs involved with reviewing articles, deliberating upon them, and coordinating acceptance offers. Finally, there are costs associated with the uncertainty about whether any given article has actually filled an article slot or whether it’ll get “stolen” away, an uncertainty that lasts while it remains expedited to other journals.

These signals are costly. As Adam Samaha might say—channeling Eric Posner—“costly signals are credible signals.” Especially during the biannual dump periods, when editors at popular journals may be facing daily submissions rates of several dozen articles per day (or more), it’s tempting to rely on these credible signals to make the job easier. This system works well as a proxy supplementing more thorough review of submissions, but would be inadequate on its own. Under a system using that review rule exclusively, many excellent articles would inevitably slip through the cracks by not being picked up at all, or by being picked up by a journal that makes an exploding offer not amenable to further expedited review.

The signaling function of expedited review only works when earlier journals actually make offers. Over the last year I noticed a dramatic rise in authors’ use of the “soft expedite,” a message explaining that another board has informed the author that they expect to bring the article to full-board review, and expect to have a decision by some specific future date. These emails are rarely useful, although an important exception is for those few journals that notoriously make exploding offers of less than, say, 24 hours. (I don’t intend to offer detailed thoughts on the exploding offer, which strikes me as a useful if inconsiderate means of protectionism. I’d be interested in hearing reactions from other recent editors and from authors.) In that post from several years ago, Orin Kerr correctly suggests that a board may face expedited review of an exploding offer without enough time to consider it seriously on the merits. But Kerr is wrong if, as his post’s conclusion suggest, he believes that when boards must review in the shadow of an exploding offer they are likely to be swayed by shiny objects like a professor’s name and school, in lieu of considering the article’s merits.

More likely is they’ll simply decline to act on the expedite request at all (which is why I called the exploding offer a form of protectionism). Unless the article is already teed up for immediate review, boards will find it too difficult to coordinate schedules, distribute and read the article, and reach an answer in time to contact the author before the offer expires. “Soft expedite” emails are thus helpful for the narrow group of journals that are known to give very short deadlines. For journals that have normal-length offer windows, soft expedite emails are useless. The signal they carry is not costly and is thus not credible: it means only that a board is investing time in reading and meeting on an article, not accruing the much higher opportunity costs of making an offer. And as a pragmatic matter, from the perspective of an overworked editor it can be frustrating to get hundreds of emails offering (more or less) variations on this theme: my work may receive an offer in the future and you may have a normal amount of time to act upon it. So authors might think twice before sending their second, or third, soft-expedite-update email of the day.

One last thought for today’s post. There seems to be a good deal of grumbling on the blogs about the pernicious effects of the articles submissions calendar—specifically how this can lead to editors using imperfect proxies for evaluating an article’s merit. This system is, to a large extent, a function of the choices authors themselves have made. This winter I received more than a handful of emails from RAs and school administrators asking when our board turned over, some explicitly saying that the authors thought they would have better luck in front of a newer (less experienced?) board. The “first-mover” advantage that people seek to get by gaming the system this way makes sense only if journals fill up their entire volumes in the space of a month in the spring. Many journals, including Chicago’s, consider articles year-round on a rolling basis. Authors don’t take advantage of such review policies even when journals publicize them, seemingly preferring to stick to the dump-period model—again, maybe on the assumption that less experienced boards are less discriminating. Yet the submissions volume during the articles dump period makes it costlier for editors to review any given article, and more likely that an article we might otherwise like to publish will slip through the cracks. I suggest authors might be able to get around concerns about proxy decisionmaking by avoiding “gaming” the system at all. In other words, authors should move away from the “mad rush in February” model, and toward a model in which they submit no sooner and no later than when the article is “complete” enough to be published.

In future installments I hope to sketch out some thoughts about agenda-setting on articles boards (and what this means for international law scholars looking to publish in mainline journals); about recent trends in international law scholarship; and about some of the more enduring debates about the merit of student-edited journals.

James Tierney on the Law Review Submission Process

by Roger Alford

Opinio Juris is pleased to announce that James Tierney will be guest blogging with us for the next few days. James is the outgoing Executive Articles and Book Reviews Editor for the University of Chicago Law Review. He will blog about his perspectives on the law review submission process, with particular attention given to international law scholarship in mainline journals.

James and I first met through Opinio Juris, having struck up an email conversation following a post I wrote in February 2008 on the moral stages of why nations obey international law. After a series of conversations about our mutual interest in international law and psychology, we decided to co-author a book chapter (abstract available here). The finished product is a chapter entitled Moral Reasoning in International Law, to be published in Trey Childress’s forthcoming book on The Role of Ethics in International (Cambridge University Press, 2011).

James will complete his JD from the University of Chicago this spring, and then clerk for Judge Mary Schroeder for the U.S. Court of Appeals for the Ninth Circuit. He has an MA in international relations from the University of Chicago and an AB from Brown.

Welcome James!

Paul Berman Named New Dean at GWU

by Roger Alford

In the ever-expanding world of international law scholars who become influential deans, George Washington University School of Law announced today that Paul Schiff Berman, Dean at Arizona State, will be the new dean at GWU.

“GW Law School is obviously already one of the top law schools in the country, but it is far more than that,” Mr. Berman said. “It is a place where students and faculty work every day to help change the world: tackling the crucial challenges facing our society and integrating their academic pursuits with law in action in our nation’s capital. This is the unique vision that the GW Law School is poised to pursue as we become the preeminent location for 21st-century global legal and policy studies.”

Laura Dickinson, the other member of this dynamic international law duo, will become Oswald Symister Colclough Research Professor of Law.

Kudos to both!

Breaking News: Superman to Renounce U.S. Citizenship

by Duncan Hollis

I’ve been on a self-imposed blogging hiatus of late due to the dual demands of serving as Temple’s Associate Dean for Academic Affairs and editing the forthcoming book, The Oxford Guide to Treaties (on which I’ll blog more later).   But, I had to pass along the following significant and important development — Superman is renouncing his U.S. citizenship.  Here’s the scoop from Comics Alliance:

Despite very literally being an alien immigrant, Superman has long been seen as a patriotic symbol of “truth, justice, and the American way,” from his embrace of traditional American ideals to the iconic red and blue of his costume. What it means to stand for the “American way” is an increasingly complicated thing, however, both in the real world and in superhero comics, whose storylines have increasingly seemed to mirror current events and deal with moral and political complexities rather than simple black and white morality.

The key scene takes place in “The Incident,” a short story in Action Comics #900 written by David S. Goyer with art by Miguel Sepulveda. In it, Superman consults with the President’s national security advisor, who is incensed that Superman appeared in Tehran to non-violently support the protesters demonstrating against the Iranian regime, no doubt an analogue for the recent real-life protests in the Middle East. However, since Superman is viewed as an American icon in the DC Universe as well as our own, the Iranian government has construed his actions as the will of the American President, and indeed, an act of war.

Superman replies that it was foolish to think that his actions would not reflect politically on the American government, and that he therefore plans to renounce his American citizenship at the United Nations the next day — and to continue working as a superhero from a more global than national perspective. From a “realistic” standpoint it makes sense; it would indeed be impossible for a nigh-omnipotent being ideologically aligned with America to intercede against injustice beyond American borders without creating enormous political fallout for the U.S. government.

It’s too bad we don’t have anyone here at Opinio Juris with views on future trends in citizenship, global identity and the like to comment on this story.  Oh, wait . . . we do.  In any case, it’s clear that someone needs to advise DC Comics on the national and international laws in play here.  For starters, renouncing citizenship at the UN doesn’t seem to cut it under U.S. law.  8 U.S.C. 1481 lists the acts by which Superman could renounce his U.S. citizenship and they involve things like becoming a citizen of another state, declaring allegiance to another state, or formally renouncing his citizenship outside the United States before a U.S. diplomatic or consular office?  There’s nothing in there about becoming a global citizen or aligning with an international organization.  Indeed, can Superman even renounce citizenship while remaining in U.S. territory (and, yes, I consider the UN Headquarters to be in U.S. territory notwithstanding its privileges and immunities under the Headquarters Agreement)?  U.S. law limits renunciation within the United States to “whenever the United States shall be in a state of war” — which I suppose begs another whole set of questions concerning Afghanistan or even Libya.  Also, what happens if Superman has ulterior motives here?  Given his wealth, isn’t the IRS likely to investigate the possibility that this is simply an effort at tax evasion.   And that’s not even getting into the questions of statelessness or international law involved.  Clearly, this is an issue that needs attention from Opinio Juris to make sure D.C. Comics gets this right.  So, commentators, have at it.

Is There a ‘Legal Geography of War’?

by Kenneth Anderson

Faithful readers of this blog – I mean, very faithful readers, the ones who read every post – perhaps know that I have been interested for a long time in a debate that lurks in the background to the debates over targeted killing and drone warfare.  This background debate (one of several important ones embedded in the targeted killing arguments) is whether there is a “legal geography of war.”  That’s a term I invented for this paper, but it goes to the question of where and when the laws of war apply, and where it is instead just the Laws of Ordinary Life, in the context of targeted killing. I’ve written a new, short, non-technical, general audience, and no-notes paper that in final form will be published online by the Hoover Task Force on National Security and Law, of which I’m a member.  I have just posted the working version of the paper to SSRN.  Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War’. I give my own view in a non-technical way, along with discussion of NIAC and self-defense and other things – but in this essay I’m much more interested in giving my sense of how the debate evolved among various interlocutors over the past ten years. Abstract is below the fold.

Continue Reading…

Birthers’ Next Line of Retreat: Obama was a Dual Citizen!

by Peter Spiro

Release of Obama’s long-form birth certificate won’t satisfy the real conspiracists: they are already all over putative discrepancies in the document.  But the document doesn’t extinguish another birther argument: Obama wasn’t a “natural born citizen” because he had dual citizenship at birth.  Here’s an example from among the many birthers who have hit their comment buttons today:

Thank you, Mr President for releasing your long form birth certificate proving you are Native born to this country. Unfortunately it is also Primae facia evidence that your father was BHO Sr., not a US citizen as required by the Constitution. You were a dual citizen at the time of your birth. Your father was Kenyan/UK and you were born in Hawaii, so you had dual UK/US citizenship at birth. The Constitution requires the President be Natural born meaning a singular allegiance to the US at birth, distinguished from Native born, meaning born in the country. A Dual citizen by definition has a dual allegiance, which is expressly forbidden by the Constitution in the unique requirement for the Office of the President. Are we supposed to start ignoring the Constitution now? I didn’t get the memo, which parts do we ignore, or is it all of it?

This line is also getting picked up in various bills before state legislatures requiring presidential candidates to show that their parents were US citizens and/or that they have never maintained alternate nationality.

Obama probably did have dual citizenship (with the UK) at birth, and thereafter with Kenya until 1984.  See this excellent explanation from factcheck.org.

But who cares?  He never acted on his British or Kenyan citizenships — he probably didn’t even know that he had them.  There’s no express prohibition on dual citizens holding the presidency.  The framers could have anticipated the prospect, as European states refused to recognize naturalization by the United States (as late as Mussolini, who claimed Italian emigrants “to the seventh generation”).  At least two other presidents — James Buchanan and Chester Arthur — had dual citizenship (with the UK) at birth.  There’s no good argument for this one.  Unfortunately, there’s no certificate that will disprove the birther case, either, and so this will just live on as a bizarre sideshow to the business of governing.

Am I Arguing a Strawman about Drones, Civilian Collateral Damage, and Discrimination?

by Kenneth Anderson

In comments to my post below about the strange new respect for drones, Kevin queries whether I’m arguing a strawman.  The “circles” that he and I both move in — academics, NGO activists, and so one — he suggests, have never seriously questioned that drones are more discriminating.

I don’t suppose that this is one of those arguments that goes anywhere, so I don’t have much more to add than this.  Since I first published on this back in 2008, I’ve done upwards of fifty conferences, panel discussions, debates, presentations, etc., in which I was the defender of drones and targeted killing.  I flipped back through the notebooks I use for making notes on my comments at these meetings; the central issue was civilian casualties at nearly every discussion.  I just don’t think it’s accurate to say otherwise.

That’s so even when it was run through as being a violation of law for this or that reason.  One reason I’m so aware of civilian casualties and lack of discrimination as being a big issue is just how little information was available over the last several years, putting me and others defending drones in the uncomfortable position — even today — of asserting greater discrimination with little back it up.  The levels of suspicion about how many people were actually being killed by hellfire missiles — that discussion went on for years.  For a long time, the assertions by local Pakistan press on casualties, despite questions about local Taliban manipulation of figures; likewise figures given by the Pakistani army.  Then the New America Foundation and Long War Journal started attempting to do casualty counts, and there was much discussion about how many people were getting killed on those counts, although each of those sources was properly cautious about the lack of corroboration and independent reporting.

It was a big deal — and much derided — when the CIA decided to start leaking claims from Panetta and others that the civilian casualties from their strikes were down in the “dozens.” I was openly laughed at on at least one occasion for quoting Panetta on lowering civilian casualties (Panetta? Director of the CIA?  On drones being discriminating?  Sparing of risk to US forces, sure, but discriminating?).

Even now, there is very little to go on in order to say what the casualty levels are.  It’s just that there seems to be a general agreement that it is no longer the important discussion.  Starting a year ago, I started arguing that the real issue for drones was not civilian casualties and proportionality, but instead necessity and the determination of targets.  But up until a month ago, the pushback on that was both sharp and relentless — necessity was an issue, but I was merely wishing away the civilian casualties issue, because I had no defensible data, just leaked quotes from self-serving officials.

Moreover, there was “blowback,” blowback was driven by the civilian casualties and how they were seen by broader Muslim publics.  Blowback — resentment among Muslim population against drone technology — started out as a follow-on to civilian casualties from drones.  Now, all of a sudden, to judge by David Ignatius’s latest column, blowback is an independent problem even if civilian casualties are lower.  The weapon might be objectively more discriminating and civilian casualties objectively lower, but still shouldn’t be used.  That is the implication of Ignatius’s latest column, and that is a big shift in the framing of the blowback claim.  Meanwhile, writers relatively new to the discussion, such as Slate’s William Saletan, have trouble even getting their minds around civilian casualties or discrimination as being the leading issue before they joined the debate.

I’ve done somewhere around, what, fifty of these discussions in the last couple of years, and I’ve got a pretty good idea of the arguments I was facing and what general assumptions have driven the debates within the academic, policy, advocacy, and related communities.  Possibly I misunderstood what all those people on the other sides of those debates were saying, and I needn’t have worried so much that, without any official government statements, reports, figures, etc., especially from the CIA, I was merely repeating a leaked statement from Panetta or some unknown DOD person in saying that the civilian casualty counts were not as high as tossed around.

The skepticism about collateral damage in all those public discussions seemeed to be exactly that, however.  For a long time, all that was published on the other side of the NAF study was a comment in NYT, WaPo, and WSJ stories, a brief leaked comment, from a CIA official, saying that the civilian casualties from CIA strikes was in the “dozens” and not hundreds, let alone thousands.  Any idea what it is like sitting on a podium at a large public conference and quoting that as your reason for saying that civilian casualties are not really the big issue and let’s talk about identification of targets?  A handful of people in the last year or so were struck by my focus on target identification and necessity — thought it was right, but also thought that unless I had much better factual sources on casualties, I had no basis for wanting to unilaterally shift away from civilians collateral damage to who was being targeted.

So, whether Libya is the driving force or not, I’m in a pretty good position to say that in a remarkably short time, this “community” seems to be accepting that the technology is discriminating and civilian casualties not the big issue. As someone who has been on that side of the debate for years, it is a remarkable shift, and is not occurring now for any obvious reason such as a change in official public data on civilian casualties in Afghanistan and Pakistan.  There is, however, a sudden shift in where and for what kind of war drones are now being deployed.  That shift in perception has happened faster than nearly any issue like this that I’ve debated publicly.   In mere weeks, and oddly since the beginning of the Libya war — fast enough and far enough so that I have to rewrite some paper sections to take account of the fact that readers of those papers are likely to say that some of these discrimination issues as no longer issues.

More From the Department of False Equivalences

by Kevin Jon Heller

Not surprisingly, conservatives and the Obama administration are falling all over themselves to praise Paul Clement for his brave willingness to represent the House of Representatives at the low, low rate of $520.00 per hour — practically pro bono.  The idea that zealous representation is an end in itself, regardless of client or cause, is one of the most basic tenets of the legal profession, a useful myth that allows skilled lawyers to convince themselves that getting rich defending polluters, companies that manufacture defective products, and banks who throw people out of their homes not only contributes to the public welfare, but is in fact an act of selflessness deserving of moral praise.

The false equivalence between Clement and lawyers who actually work pro bono on unpopular causes (conservative or progressive) or who make $35,000 per year providing legal services to the poor and powerless is offensive enough.  Even worse is witnessing Jonathan Adler, one of the bloggers at Volokh Conspiracy, describe the Human Rights Campaign’s pressure on King & Spalding to drop the defense of DOMA as the “new McCarthyism” (emphasis added):

Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.

Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.

As I noted yesterday, I think pressuring law firms to drop clients is generally a very bad idea.  To describe the HRC’s efforts as “McCarthyism,” however, is ridiculous.  Joseph McCarthy was a United States Senator who used the power of his position to destroy the lives of dozens, if not hundreds, of innocent people.  The HRC is a civil-rights group that is attempting to shame King & Spalding for accepting a client whose cause is antithetical to the firm’s own values, given its long history of support for LGBT rights. It is certainly reasonable to argue that the HRC is playing a dangerous and counterproductive game by trying to convince King & Spalding clients to leave the firm; I’m inclined to agree with that position.  But there can be no comparison — none at all — between grassroots campaigns and state-sponsored persecution.

When the government passes a law disbarring lawyers who represent conservative causes, we can talk.

The Sudden Attraction of Drones in Libya

by Kenneth Anderson

Numbers of folks I’ve been talking with recently — desirous of going forward with humanitarian intervention in Libya, but mindful that international altruism by the Western democracies goes forward only with few casualties among their armies — seem suddenly to have concluded that drones are a wonderfully discriminating weapon.

Perhaps I am unfair, and anecdote is not data, but let’s just say I do not recall the same general approval for drone warfare even three months ago when it was all about Pakistan and Afghanistan.  Or when it comes to Israel’s use of drones.  Just a few weeks ago, there was much handwringing about civilian casualties and utter doubt, at least in the NGO, advocacy, and academic circles in which I travel, that claims made by the CIA and others about the low level of collateral damage was true.  Although there are exceptions, of course, my sense is that Walter Pincus’s excellent WaPo report on a conference last week featuring current and former USAF officers talking about the actual use of these weapons tended to confirm them as subject to serious discipline in their use.  (Forget all that ‘Playstation’ meme stuff that emanated from Jane Mayer; so yesterday.)  And confirmed them as a genuine improvement in precision.  And just in time, I can’t help but notice, to be put forward as the US contribution to humanitarian intervention in Libya.

Now, I have argued for years — while noting that I have very little hard data and nothing but anecdote and conversation with insiders — that drones are indeed vastly more discriminating.  And I think that the perception is shifting toward that view — journalists suddenly getting on board with the meme that drones are now cool, NGO types suddenly seeing virtues in Libya drones that they never seemed to see in Pakistan, etc.  But I hope I am not being cynical in thinking that part of this is for all the wrong reasons: the desire to find a weapon that can be both discriminating and overcome the NATO distaste for casualties among its own.

Because if that is the case, it is not merely unprincipled — it is also wrong in important ways.  Drones are far more discriminating and precise — but they are that in Afghanistan and Pakistan in no small part because of the extensive intelligence network in which they are mostly the tactical tip of the spear.  Nothing like that years-in-the-making network exists in Libya, and for that reason it might easily not be as precise there as it is in AfPak.

It is, I stress, more precise and discriminating, even in Libya — if only because of the “loiter” factor for drones, by comparison to the mere handful of minutes that manned aircraft can remain over the target.  But those with whom I discuss drone use in Pakistan and Afghanistan stress the importance of front-end, integrated intelligence that involves human intelligence on the ground, signals intelligence, and surveillance over long periods from drones, as surveillance and not weapons platform.

Moreover, the suddenly broad acceptance of drones by those who, in my experience, have heretofor treated them with suspicion is also, ironically, a rejection of that other critique of drones: that they make resorting to force too easy.  That’s what I criticized in my latest paper on this.  So I was quite taken by surprise when this suddenly became a virtue rather than yet more evidence of the vice of American technological imperialism, the ease with which it could dispatch drone armies of the air, without risk to its forces.

It turns out, however, that when you want to undertake armed altruism and humanitarian intervention, Samantha Power’s War, you rather desperately and suddenly want weapons that involve little risk to your forces.  Bug becomes feature.  Otherwise the ‘coalition of the heroically altruistic willing’ becomes the ‘coalition of free riders and defectors and shirkers’, unwilling to take casualties.

In that case (which is every case of altruistic war), drones are suddenly a great weapon. Yet not only are they no safer than they were before, they are actually a marginally less safe weapon in Libya if only because the intelligence picture upon which they depend is not as complete.  Drones are the preferred weapon for humanitarian intervention because they accommodate the limited risks that the global altruists are willing to take. Hence we suddenly seem to discover in them new virtues of discrimination and precision that, mysteriously, we had somehow not managed to see before.

DOMA, Gitmo, and False Equivalences

by Kevin Jon Heller

At Lawfare today, Ben Wittes criticizes King & Spalding for refusing to help the House of Representatives defend the Defense of Marriage Act (DOMA) in court.  His argument turns on an analogy between representing the House and representing Gitmo detainees:

Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions are not ones related to counterterrorism but involve marriage and equality and tradition. But good counsel is still critical to ensuring that tribunals have access to the best arguments and most rigorous factual presentations before making crucial decisions. When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record–or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?

Paul is a friend. I do not know his personal views on DOMA and would never ask them. But I ask readers to consider whether we would consider what King & Spalding did in this matter honorable had the firm done it to a different firm client–say, Mohammed Al Adahi–and how we would consider a lawyer who resigned in protest if it did.

I think Ben’s point that law firms should be very wary of letting interest groups pressure them into dropping clients is a good one, and in that regard the analogy to the horrific attacks on lawyers who represented Gitmo detainees is appropriate.  That said, I think Ben’s argument otherwise relies on a fundamentally false equivalence between Paul Clement and lawyers who represent Gitmo detainees.  Lawyers in the latter category are representing powerless, indigent clients who are faced with criminal charges or — worse still — a lifetime of indefinite detention.  Paul Clement is representing one part of the legislative branch of the United States government, a client that is not faced with the deprivation of liberty and is not even trying to defend a constitutional right.  The Constitution doesn’t define marriage as the union of a man and a woman, nor does it impose an obligation on the executive to defend laws (in contrast to enforcing them) that it believes are unconstitutional.

I have no problem with Clement choosing to represent the House in its attempt to defend the DOMA legislation, although I think Ted Olson deserves far more credit for using his legal skills to promote the constitutional rights of gays and lesbians.  But analogies like Ben’s simply reinforce one of the most destructive ideas perpetuated by legal education — namely, that a “good” lawyer is nothing more than a mercenary, willing and able to zealously promote the interests of whomever is capable of paying his or her fees.  Lawyers should always be free to represent whomever they want, but we should not pretend that there is no moral difference between civil-rights attorneys and attorneys who represent tobacco companies, weapons manufacturers, and polluters.  And we should certainly not pretend that there is no moral difference between representing individuals facing a lifetime in prison and representing right-wing congressmen facing a world in which they are no longer able to legislate hate.

ADDENDUM: Many critics of King & Spalding’s decision, including Ben, emphasize that the adversary system only works when both sides have quality representation.  That’s a lovely ideal, but in the real world quality representation is almost always the prerogative of the wealthy.  With the exception of indigent criminal defendants, who are provided overworked and under-resourced public defenders (whose funding is constantly under attack by conservatives), society has no problem either not providing the poor with any representation at all or providing them with substandard representation — tenants, the victims of mortgage fraud, employees discriminated against because of age or race or gender, people harmed by defective products, etc.  Such individuals have to rely on overworked and under-resourced legal-aid offices (whose funding is constantly under attack by conservatives) or plaintiff’s attorneys who work on contingency (whose work is constantly under attack by conservatives).  So please, spare me the crocodile tears for the poor House of Representatives.  When the government adequately funds public defenders’ offices and legal-aid societies, I’ll take the quality-representation argument seriously.

Thoughts on Power and Legitimacy

by Francesca Bignami

Lindseth’s book is a highly valuable analysis of the administrative roots of the European Union, which will be of real service to scholars and students in the field.  Although it is impossible to do justice here to his rich and, in many ways, provocative thesis, he argues that the legitimacy of the European project is drawn from administrative law and the concept of delegation—from national constitutional orders to supranational European institutions.  With this argument, Lindseth refutes the dominant, overwhelmingly constitutional, narrative of the European Union.

In support of his thesis, Lindseth marshals a wide array of historical evidence from the negotiating history of the treaties and the jurisprudence of the Court of Justice and important national courts, primarily the German Constitutional Court:  the powers exercised by European institutions were conceived as a series of administrative delegations from national parliaments and executive branches to supranational institutions.  In addition to these sources, however, it would have been helpful to provide evidence from contemporary public law scholarship. What was being written in national legal journals such as Giurisprudenza Italiana, Neue Juristische Wochenschrift, and Actualite Juridique Droit Administratif?  And in the main public law and international law treatises of the day? 

Lindseth also makes prescriptions, based on his administrative thesis, for institutional design.  For instance, he recommends a Conflicts Tribunal to resolve conflicts between national supreme courts and the Court of Justice.   Yet even though the administrative reading of European governance can convincingly account for the past, it is arguable whether it offers a platform for a future, prescriptive and normative project.   The extent of the powers exercised by European institutions and the multiplicity of national principals suggests that the situation of European governance is different from that of national administrative agencies.  Therefore, maybe Europeans have to abandon their “political-cultural attachment to the nation-state,” as Lindseth puts it, if they wish to have a supranational order that satisfies contemporary standards of good government.   Or course, if this is inconceivable, then it would not be a plausible premise for a future constructive project, but many of the constitutional theorists whom Lindseth engages with believe otherwise and it would be worthwhile addressing the point. 

My final comment concerns the model of administrative law that Lindseth argues legitimizes European governance. Part of the elegance of his argument is attributable to its focus on the principal-agent dimension of administrative law.   However, as Lindseth himself acknowledges in his chapter on judicial review, administrative law legitimates administrative power for other reasons too:  fundamental rights, interest representation, local government empowerment, judicial review for minimum standards of rationality, and so on.   If this is so, then the prospect of legitimate European governance through law and in the absence of a historically and culturally constituted political community might be brighter than Lindseth’s analysis suggests.

In summary, Lindseth provides a nuanced and compelling account of the sources of European legitimacy, which makes an important contribution to our understanding of the roots and future possibilities of European integration. 

 

The Nemesis of European “Constitutionalism”: Peter Lindseth’s Power and Legitimacy

by Fernanda Nicola

Lindseth’s claim in his new book is simple, intriguing, and surely will be seen as radical by most European law scholars: the European Union (EU) should be studied as an administrative rather than a constitutional project. Instead of reading the Lisbon Treaty as Member States’ acquiescence to a European constitutional order – one in which EU law is paramount and European Courts are empowered to strike down national legislation – Lindseth takes up Giandomenico Majone’s challenge from the early 1990s, to reconceptualize the EU as a “fourth branch of government.” But Lindseth then explores this redefined EU – most importantly its dynamic relation with its Member States – in significantly greater legal-historical depth.

In particular, Lindseth argues, the States’ reaction to the growth of EU regulatory power, a mix of acceptance and resistance, should be seen as a form of “reconciliation” or redefinition of European powers by domestic governmental and judicial bodies. European legitimacy, in his view, springs not from the Court’s purported neutrality and independence, but rather from these different moments of reconciliation between Brussels and national agencies, administrative tribunals, and constitutional courts.

The book openly rejects the powerful narrative of European constitutionalism, which has conventionally portrayed the EU as firmly set on a clear trajectory: departing from a mere intergovernmental organization, transforming itself into a supranational entity and finally achieving a more democratic constitutional union. The dominance of this view among EU scholars is self-evident: for over two decades the legal integration of Europe has triggered many interesting and different projects. Lacking Lindseth’s rich comparative and historical account of European integration, however, such projects have all been straitjacketed by a rigid constitutional narrative for Europe.

In the early 1990s, Joseph Weiler’s Transformation of Europe successfully framed the EU as a constitutional or quasi-federal union so that subsequent scholars felt constrained to make explicit or implicit references to US constitutionalism. In addition, scholars suggested that European constitutionalism was promoted silently by the European Court of Justice through the supremacy and direct-effect doctrines that ultimately were accepted, albeit not without resistance, by the Member States (Slaughter and Mattli, Alter). The academic focus was therefore fixed on Brussels, the Commission and the European court, rather than on the public and private legal orders of the Member States.

In the late 1990s, another strand of constitutionalism began addressing European governance as legitimated by its self-standing power rather than as a product of Member States’ delegation (Sabel, Simon, Gerstenberg, Cohen). In this strand, European constitutionalism was moving beyond courts and looking at new deliberative fora whose production of soft law and policy guidelines became an exemplary form of governance and a response to the failures of representative democracy. Constitutionalization became synonymous with the Europeanization of regulatory regimes going beyond the economic sphere, and increasingly encompassing social and civil rights. From a descriptive project, European constitutionalism became a normative one, insofar as academics were ambitiously attempting to solve pressing democratic and social problems.

In the post-Lisbon scenario, however, European constitutionalism has lost much of its appeal: Power and Legitimacy represents its nemesis. Scholars are reminded by Lindseth that relatively autonomous EU bodies draw legitimacy from the judicial, executive and parliamentary mechanisms set in place by each Member State. Therefore Lindseth sets a timely and important scholarly agenda calling for a more penetrating analysis of European integration, its past and its future, through a careful understanding of what ideas were received and promoted by political and legal elites and what were the unintended consequences of the integration process. In Lindseth’s view the “reconciliations” between the Member States and Europe are ongoing, complex legal and political battles fought by administrative and judicial bodies addressing the disconnect between multiple regulatory powers and the need for democratic recognition.

Coming to Terms with Regulatory Power Beyond the State

by Peter Lindseth

Let me first thank Peter and the other members of Opinio Juris for providing this space for an online discussion of my new book.  Let me also thank Ken, Francesca, and Fernanda for taking the time to offer comments.  I am really looking forward to this exchange.

As its title suggests, Power and Legitimacy grapples with what I see as the core disconnect in European integration. This has involved, on the one hand, the creation of supranational institutions with some measure of autonomous regulatory power that can penetrate deeply into national legal orders. And yet, on the other hand, despite the obvious constitutional implications of this process on the national level, European integration has been unable to achieve a democratic and constitutional legitimacy in its own right. There are certainly other bases of legitimacy for integration—as an instrument of peace, as an expression of a denationalized legality, or as a neutral producer of regulatory norms for a market-polity transcending national borders (Fritz Scharpf’s famous ‘output legitimacy’). But the institutions of integration are otherwise not generally understood by Europeans to embody or express the capacity of a new, historically cohesive political community (‘Europe’) to rule itself through institutions ‘constituted’ for that purpose. In that critical regard, the leading bodies of the Member States—executive, legislative, and judicial—have remained the political-cultural locus of self-government in the EU. This is true even as the Member States have delegated significant and often autonomous regulatory power to the European level for numerous functional and political reasons.

How has European public law come to terms with this separation of power and legitimacy? That is the central question motivating my book. The phrase ‘coming to terms’ is used here in a double sense. First, it refers to the development of a conceptual vocabulary to describe this complex reality over the last half-century. In this regard, the European Court of Justice (ECJ) and sympathetic legal commentators have played a key role as advocates of an interpretation of European law as autonomously ‘constitutional’ in its own right, separate and apart from the Member States. Second, ‘coming to terms’ also refers, more figuratively, to the less noticed process of institutional reconciliation, in which European public law at all levels has sought to deal with the conflicting demands of supranational regulatory power and continuing national legitimacy. Here the analytical focus must necessarily move beyond the ECJ, to a comprehensive and historical understanding of the EU’s legal and institutional development.

Appreciating these tensions in the process of ‘coming to terms’ may also help us deal with another disconnect in European integration. As the events of the last decade have made clear, the dominant constitutional understanding of the EU has had a great difficulty accounting for the direction of European public law. ‘Coming to terms’ with the EU’s particular form of regulatory power beyond the state has in fact required mechanisms profoundly dependent on the normative principles and legitimating structures of administrative governance as it has developed over the course of the twentieth century.

This should, in fact, not surprise us. The separation of power and legitimacy has been the identifying characteristic of administrative governance since 1945, if not before. Moreover, the delegations at the heart of administrative governance have been legitimized, in important part, through forms of oversight (though necessarily control) by national democratic and constitutional bodies vis-à-vis the burgeoning administrative apparatus. As my book seeks to show, the evolution of European public law, much less than suggesting a new, autonomous form of ‘constitutionalism beyond the state,’ in fact reflects an increasing convergence around ‘the postwar constitutional settlement of administrative governance.’ The result has been a polycentric constitutionalism in the EU, with regulatory power increasingly exercised at the supranational level but democratic and constitutional legitimacy still concentrated within national institutions.

The evolution of European public law, my book thus seeks to show, reflects a clear effort to maintain, over time, the connection between this denationalized regulatory power and national forms of constitutional democracy. This effort is very much consistent with the postwar settlement on the national level, albeit in an altered form to account for the peculiarities of integration (notably multiple ‘principals’ and regulatory norm-production outside the state). By understanding European integration as a manifestation of administrative governance, Power and Legitimacy seeks to offer a new conceptual vocabulary to ‘come to terms’—both descriptively and normatively—with the integration phenomenon in all its complexity.

Book Discussion: Peter Lindseth’s Power and Legitimacy: Reconciling Europe and the Nation-State

by Peter Spiro

We’re pleased this week to host a discussion of Peter Lindseth’s new book, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010).  Peter is Olimpiad S. Ioffe Professor of International and Comparative Law at the University of Connecticut Law School.  Among other honors, Peter he has been a fellow and visiting professor in the Law and Public Affairs (LAPA) Program at Princeton University; a visiting fellow (Stipendiat) at the Max Planck Institute for European Legal History in Frankfurt, Germany; as a Jean Monnet Fellow at the Robert Schuman Center for Advanced Studies as well as a lecturer at the Academy of European Law, both at the European University Institute (EUI) in Florence, Italy.  The book weaves a textured analysis of the Europe’s institutional futures:

A succession of crises has marked the last decade of European integration, leading to disorientation among integration scholars. Older frameworks for understanding have been challenged, while the outlines of new ones are only now beginning to emerge. This book looks to history to provide a more durable explanation of the nature and legitimacy of European governance going forward. Through detailed examination of certain fundamental but often overlooked elements in EU history, Peter Lindseth describes the convergence of European integration around the ‘postwar constitutional settlement of administrative governance.’

We’ll be joined for the roundtable by Francesca Bignami (George Washington University Law School); Fernanda Nicola (American University Washington College of Law); and our own Ken Anderson.  We’ll look forward to a stimulating discussion of Peter’s important new book.

What Kind of Crime Against Humanity Is Forcible Circumcision?

by Kevin Jon Heller

That question is raised by the ICC’s investigation of the post-election violence in Kenya, which included a number of forcible circumcisions of Luo men.  According to IRIN Africa, although the OPT originally alleged that the forcible circumcision qualified as the crime against humanity “other form of sexual violence” under Article 7(1)(g) of the Rome Statute, the Pre-Trial Chamber reclassified the act as the crime against humanity of “other inhumane acts” under Article 7(1)(k):

In his December 2010 request for summonses for three crimes-against-humanity suspects aligned with President Mwai Kibaki’s Party of National Unity (PNU), ICC Chief Prosecutor Luis Moreno-Ocampo provided evidence of at least nine instances of forced male circumcision in the Rift Valley towns of Nakuru and Naivasha, as well as in Nairobi’s Kibera slum. The violence claimed at least 1,000 lives nationwide and displaced hundreds of thousands between December 2007 and February 2008.

Ocampo initially moved to charge the crime — targeting the Luo ethnic group, which does not practise male circumcision — under “other forms of sexual violence”, with atrocities such as sexual slavery and forced prostitution. But the pre-trial chamber ruled in March that it should fall under “other inhumane acts”, crimes that cause “great suffering” or “serious injury to body or to mental or physical health”.

The chamber blocked an appeal against that ruling in early April, though Ocampo can raise the issue again in hearings scheduled for September or before the trial chamber if cases against the suspects are allowed to proceed.

I think the OTP has the better of the argument.  The Pre-Trial Chamber’s reclassification of the forcible circumcision seems to rely on an outdated notion of sexual violence — namely, that such acts are about sex, not power.  I can’t imagine anyone arguing that female genital mutilation (FGM) is an “inhumane act” instead of a form of sexual violence simply because it is not always motivated by the desire to control women’s sexuality.  Why should male genital mutilation be viewed any differently?  Indeed, the IRIN article implies — by quoting Brigid Inder, the executive director of Women’s Initiatives for Gender Justice — that there is a sexual connotation to the forcible circumcision, because it is designed to undermine Luo cultural identity by emasculating its men:

“In our view, what makes these acts a form of sexual violence is the force and the coercive environment, as well as the intention and purpose of the acts,” she said. “It isn’t simply about the injuries and suffering, although clearly these are also aspects of these crimes. But the forced circumcision of Luo men… has both political and ethnic significance in Kenya and therefore has a specific meaning. In this instance, it was intended as an expression of political and ethnic domination by one group over the other and was intended to diminish the cultural identity of Luo men.”

Inder argues that the OTP did not make a strong enough case for classifying forcible circumcision as a form of sexual violence in its initial filings.  I hope it will do better in September.

Washington Post on Guantanamo Policy

by Kenneth Anderson

Fine long article in the Washington Post today by Peter Finn and Anne E. Kornblut on why President Obama has not fulfilled his promise to close Guantanamo Bay.  Detailed, measured, and comprehensive, with an excellent timeline graphic.  I agree with Ben Wittes’ take that the best bit of reporting detail is this:

On Obama’s inauguration night, when the new administration instructed military prosecutors to seek the suspension of all proceedings at Guantanamo Bay, defense lawyers at the base formed a boisterous conga line.

“Rule of law, baby!” they shouted.

Ben’s discussion is here at Lawfare.  He observes that many sensible people, including Matthew Waxman and John Bellinger, had been telling the incoming adminstration for months, and indeed had been saying to anyone who would listen for years, that ultimately the number of people it would be able to try would be limited.  And yet it would still conclude that it could not let a number of them go, either — and in office would not do so.  My on experience, as someone on the outside defending roughly that position in academic conferences, press discussions, etc., was that left-liberal America was mesmerized by the slogan, “Charge them or let them go.”

At risk of some snark, I also have to say that the incoming administration was afflicted with a not-negligible amount of hubris, intellectual and moral, particularly in the matter of Guantanamo.  However, whatever one’s views of this –and I do understand that no one, save perhaps those in the administration deciding whether to charge the detainees or hold them without charges, has changed their minds about this since, oh, 2003 or so — the WaPo article is fine reportage, and well-worth citing in scholarship and elsewhere.

Opposition to Drone Use in Libya

by Michael W. Lewis

Ken’s post and the comments following it display an understanding that drones are particularly well suited to this mission because their longer loiter time makes them more discriminating and therefore more capable of proportional strikes than manned aircraft. As someone who has personal experience with the difficulties of discriminating between combatants and civilians while accurately delivering weapons from manned aircraft in an environment like the one currently prevailing in Libya, I was glad to see this understanding demonstrated.

Unfortunately that understanding may not be shared by a meaningful portion of the population. There are two things working against this acceptance of drones as a positive addition to the battlefield. One is quite simply the Terminator-like creepiness of machines making war against men that many people have commented upon in discussing drones. The other is the perception that drones, because they are remotely controlled, are less accurate than manned aircraft. The opponents of drone use in Pakistan and Yemen, whose legal complaint was mainly about whether the legal threshold of armed conflict had been crossed or whether the boundaries of the battlefield were being improperly expanded, often highlighted the civilian casualties caused by drone strikes to support their opposition. This has left an impression with many that drones are less accurate and discriminating, but are used anyway because they are the easy, low risk answer to military problems (a problem that Ken’s piece on the “efficiency” of drones delves into more deeply). David Ignatius of the Washington Post describes drones as a “weapon that has become for many Muslims a symbol of the arrogance of U.S. power”. The subtext being that the United States does not care if it causes civilian casualties, particularly amongst Muslims, as long as it doesn’t have to put its own pilots at risk.

As Ken posits, employing drones in a humanitarian venture like Libya may help to overcome some of the legal objections that have been raised to their use elsewhere. But broader international acceptance of drone use is unlikely to be achieved until the general public has a better understanding of how drones can actually save civilian lives if employed correctly.

Mark Martins at Harvard Law School

by Kenneth Anderson

Jack Goldsmith notes at Lawfare:

Last Monday Harvard Law School conferred its medal of freedom on one of its graduates, General Mark Martins, Commander of the Rule of Law Field Force -Afghanistan.  The Harvard National Security Journal has just posted the speech, with slides, that General Martins gave for the occasion.

Drones Over Libya

by Kenneth Anderson

The US has now deployed armed drones over Libya, according to press reports.  Drone systems have been operating as surveillance systems for weeks now, but acting on a NATO request, the US has now put up at least two weaponized drones in the Libya conflict.

The logic of this move is inescapable.  NATO countries launch air strikes against Libyan army assets, making tanks and regular military vehicles a death sentence.  The Libyan army shifts to “technicals” and eventually to commingling with civilians on the ground to avoid easy identification.  The attack aircraft cannot loiter long enough to develop the intelligence necessary to separate the targets from the civilians.  Bring in the drones in a surveillance role.  However, because the targets move so easily, it makes far more sense to use the drones as both surveillance and weapons platform, and strike directly from them.  The precision targeting of the drones is likely to mean that they will be far more discriminating than regular manned aircraft.  Of course, none of this is possible without having first suppressed air defense systems. Moreover, the evolution of tit-and-tat tracks one of the essential logics of drones:  they are an attempt to use technology to overcome an adversary’s behavioral violations of the laws of war.  Lawfare is one of the drivers of drone warfare.

Query whether this deployment of drones in Samantha Power’s War, if that isn’t too snarky, wars of humanitarian altruism, will cement the acceptability of drones and targeted killing in conflict.  Likewise the acceptability, and not just utility, of the CIA in using force when political reasons preclude military boots on the ground.  If targeted killing and drones and CIA are okay in humanitarian adventures, they are okay in Pakistan and Afghanistan and wars in which the US has interests at stake.  It is possible, but not persuasive, that wars of humanitarian intervention support a different set of rules for fighting and “jus in bello” than regular wars, but that would defy the fundamental principle of the conduct rules of armed conflict, viz., that the rules are the rules regardless of the motive for fighting.

But the real shift here is a gradual acceptance among the critics of targeted killing and drone warfare that, in fact, it is more discriminating.  I sense a change of heart underway — a recognition that although far from perfect, targeted killing through this technology is, well, targeted.  In that case, the focus inevitably shifts from a question of proportionality (being about civilians) to necessity (being about who is targeted) within the framework of ethics and war.  I write about these topics in a new, short working paper up on SSRN, on the idea “efficiency” in jus in bello and jus ad bellum.

The Course of International Law, Through HLS Exams

by Peter Spiro

For the students among you ramping up for your international law exams, you’re probably glad that you won’t have to face this kind of question (which appeared on Professor Beale’s 1905 exam at Harvard Law School):

Indictment for larceny. The defendant was an officer in the English army detailed to pursue a, band of Indians who had been murdering settlers in Canada. The Indians fled into the United States, fortified themselves just over the. border, and from their fort, made an attack on the defendant’s troop. The defendant, to protect his troop from the attack, crossed the line also, it being impossible to find cover on the Canadian side, and finding a large pile of vegetables on the land of a settlor took them and with them constructed a fortification, against the protest of the owner. This fortification saved the defendant’s troops but the vegetables were destroyed, as defendant expected when he took them. The defendant alleged in his defence that the faking of the vegetables was an act of war, necessary for his defence against his enemy. The English government approved his act. Should he be acquitted?

And maybe all of us should be grateful that this kind of question no longer makes much sense:

State A, having decided to make war on State B, attacked and destroyed the army of B without warning. A declaration of war by each state against the other followed. State A then seized all property within the country belonging to citizens of State B, including the property of X, who had long resided and carried on business in State A. Can any legal complaint be made, and if so, by whom?

More available here.

Council of Europe Calls on Congress to Pass Avena Implementation Law

by Peggy McGuinness

The Council of Europe continues to monitor death penalty practices around the world and call out friendly states that fall short of full abolition.  Last week the Council passed a resolution (full text here) reiterating its support for abolition and calling on Belarus (as a potential member state), Japan and the U.S. to join the consensus of democratic, human rights regarding states by abolishing the death penalty.  Most interesting was the resolution’s focus on implementation of the ICJ’s Avena decision (Mexico v. United States) as a dimension of abolition. I have long argued that the Avena case and the domestic line of cases related to Avena were centrally about U.S. exceptionalism on the death penalty, and this resolution demonstrates that, at least from the European perspective, the death penalty is at the heart of the Consular Convention controversy.  It seems highly unlikely, however, that the U.S. Congress will respond to the Council’s suggestion.  Indeed, it’s perhaps more likely that a push from Europe that focuses on the death penalty will alienate some lawmakers. An approach emphasizing the value of enforcing the Consular Convention in all cases — as argued by John Bellinger — is more likely to win over Congress.

From the Council’s Resolution 1807:

1.       The Parliamentary Assembly reiterates its principled opposition to the death penalty in any circumstances. It takes pride in its successful contribution to ridding almost all of Europe of this inhuman and degrading punishment, by having made abolition of the death penalty a condition for accession to the Council of Europe.

****

4.       As regards the United States of America, the Assembly:

    4.1.       congratulates those American states which have recently abolished the death penalty (in particular, New Mexico, New Jersey and New York State) and invites others, as well as the federal jurisdiction, to follow their lead;

    4.2. regrets that the arbitrary and discriminatory application of the death penalty in the United States and the public scandals surrounding the different methods of execution in use (lethal injection, electric chair, firing squad) have stained the reputation of this country, which its friends expect to be a beacon for human rights;

    4.3. considers that, particularly in the present time of budgetary constraints, scarce resources are better used to improve crime prevention and to increase the rate of clearance of serious crimes rather than to fight protracted legal battles in order to put to death individual perpetrators.

5.       Also, as regards the Avena (Mexico v. United States of America) judgment of the International Court of Justice, the Assembly urges that:

    5.1. the federal legislature pass legislation enabling those Mexican nationals condemned to death without having been provided with the consular assistance mandated by the Vienna Convention on Consular Relations to be retried following the correct procedures;

5.2. all judicial authorities in the United States be given the possibility to ensure that in future foreign nationals who may be subjected to the death penalty are provided with appropriate consular assistance, in compliance with the international obligations of the United States under the Vienna Convention.

International Law Association Regional Conference Meeting in Taipei: Registration Open Until May 10

by Peggy McGuinness

Our friends at the International Law Association pass along the following registration information for the upcoming Asia-Pacific Conference in Taipei, which features a terrific line-up of speakersi:

The 2011 International Law Association (ILA) Asia-Pacific Regional Conference will take place in Taipei, Taiwan from May 29 to June 1, 2011. The conference theme is “Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges.”

The keynote speakers are Judge Helmut Tuerk (Vice President, International Tribunal for the Law of the Sea, ITLOS) and Professor David Caron (President, American Society of International Law). Other speakers include President Ying-jeou Ma (President, Republic of China), Lord Mance (Justice, Supreme Court of the United Kingdom), Professor Nicolaas Schrijver (President, International Law Association), Judges Albert Hoffmann, Jin-Hyun Paik and Shunji Yanai of the ITLOS, scholars and government legal advisors from various ILA branches. The ILA Research Committee on Recognition and Non-Recognition will also convene at the conference.

The tentative conference program is available at http://www.cils.nccu.edu.tw/ila2011tw/Program.htm. The registration deadline is May 10, 2011.

Israel’s Changes in Response to the Goldstone Report

by Kevin Jon Heller

Publicly, Israel has been nothing but critical of the Goldstone Report.  Netanyahu responded to Goldstone’s recent partial retraction, for example, by calling for the “twisted and nonfactual” Report to be thrown “into the dustbin of history.”

Behind the scenes, however, Israel has taken a different approach.  According to the Jewish Press, the Report has led the IDF to adopt some very significant reforms to its war-fighting policies:

Despite Israel’s rejection of the Goldstone Report on the Gaza war a year-and-a-half ago, the international criticism it engendered has led the Israel Defense Forces to make a number of significant changes in policy and doctrine.

And they’ll stay even though Richard Goldstone has recanted one of the most significant findings of his committee’s report – that Israel intentionally targeted civilians and may have perpetrated war crimes and crimes against humanity in Gaza.

Among the changes made by the IDF were modifying the way soldiers fight in urban areas, teaching relatively low-level combat officers nuances in the laws of war, attaching humanitarian liaison officers to active forces and making media relations a priority.

Last May, eight months after the Goldstone Report was released, the IDF issued a new document defining rules of engagement in urban warfare. Although the ideas elaborated long had been standard practice, putting them down in writing was tantamount to introducing a new doctrine for fighting in built-up areas.

The document noted that during the Gaza operation, even after every effort had been made to induce civilians to evacuate areas where combat was expected – for example, by dropping fliers and making direct telephone calls to area residents – more often than not some non-combatants stayed behind.

The new doctrine requires that after efforts have been made to warn the civilian population to leave, the incoming troops first fire warning shots and give the remaining civilians a chance to leave safely. Then, to minimize casualties among civilians who nevertheless choose to stay, IDF fighters and commanders must use the most accurate weapons at their disposal and choose munitions of relatively low impact.

The IDF also has taken significant legal steps.

Officer training courses at company, battalion and brigade levels now include detailed study of international law, with special reference to the rules of war. The Military Advocate General’s Office and the Foreign Ministry consult regularly with foreign governments and international organizations to ensure that all IDF operations conform to accepted legal norms.

During the month-long Gaza War in the winter of 2008-09, legal advisers from the Military Advocate General’s Office served with combat forces, advising commanders in real time of what might constitute a breach of law. In January 2010, then Chief of Staff Lt.-Gen. Gabi Ashkenazi standardized this practice, instructing commanders to consult with legal advisers not only in the planning stages of military operations, but also during the actual fighting.

To prevent possible loss of military focus, however, Ashkenazi ordered that the legal advisers be sent to divisional headquarters rather than battalions or brigades, as is common in some other Western armies.

Another step the IDF has taken to help minimize civilian casualties and humanitarian distress on the other side is to attach humanitarian liaison officers to troops in the field. The officers come from a pool set up by the Coordinator of Government Activities in the Territories, or COGAT, and are in regular contact with the Palestinian Authority in the West Bank and international aid organizations in Gaza.

Their task in the event of hostilities is to help coordinate humanitarian needs on the Palestinian side and to point out locations of sensitive facilities like hospitals, schools and UN aid centers to ensure that they are not mistakenly targeted. Such officers were assigned during the Gaza War on an ad hoc basis and, according to the IDF, proved very effective.

As a result, Ashkenazi decided in February 2010 to refine and institutionalize the system.

The IDF has even gone out of its way to improve relations with progressive Israeli NGOs — almost certaintly the same ones the Knesset so regularly demonizes.  As the articles notes, the “IDF is collaborating with some of the human rights organizations critical of its actions to make sure cases of alleged IDF misconduct are handled appropriately. Last July, the military advocate general, Avichai Mendelblit, singled out B’Tselem, which monitors Israeli actions against Palestinians, for thanks.”

Let me be clear: I am not pointing this out to be snarky, although I find the gap between Israel’s public rhetoric and its private actions to be deeply frustrating.  I think the IDF genuinely deserves praise for these reforms, which are all very encouraging.  And greater communication between the IDF and human-rights groups can only be a good thing, no matter how significant their differences.

Hastings Law De-Sponsors Palestinian Conference — and Makes David Luban’s Point

by Kevin Jon Heller

The San Francisco Chronicle has the story:

The conference, titled “Litigating Palestine,” took place at the San Francisco campus March 25 and 26. The 13 speakers – four of them Jewish, according to a school official – discussed legal issues and court cases involving Israel’s occupation of the West Bank and Gaza, protests, consumer boycotts and related topics.

The event, approved by Hastings’ faculty, had listed the school’s foundation as a co-sponsor along with the Trans-Arab Research Institute. But on the evening of March 24, Hastings’ Board of Directors held a closed-door, emergency meeting and announced that a majority had voted to “take all steps necessary to remove the UC Hastings name and brand” from the conference.

The board also dropped plans for a welcoming speech by Frank Wu, the school’s dean and chancellor. Wu issued a statement the next day saying Hastings understands that the topic “prompts strong feeings on all sides,” but believes that convening such gatherings is “among our responsibilities as an academic institution.”

The law school directors, who are appointed by California’s governor, will not comment on the decision, Hastings spokesman Michael Treviño said Tuesday. But he and other officials said some alumni and organizations had complained to the college shortly before the conference.

They included the Jewish Community Relations Council, whose executive director, Rabbi Doug Kahn, said in a written briefing for the group’s members last week that the event was “an anti-Israel political organizing conference using law as a weapon.”

Kahn said he and regional leaders of the Anti-Defamation League and the American Jewish Committee met with Wu and other Hastings officials March 21, told them the conference was one-sided and urged them to withdraw the school’s affiliation and the dean’s planned speech.

The board’s cancellation of Wu’s address “interfered in the academic freedom of our institution,” said the conference organizer, George Bisharat, a Hastings professor.

Bisharat said opponents had wrongly accused the conference of “Israeli-bashing” and were also off base in arguing that the event was biased because none of the speakers supported Israel’s conservative government. The purpose was to train lawyers in defending Palestinian rights, not to debate whether those rights exist, he said.

To their credit, nearly all of the tenured Hastings faculty protested the move. What I find particularly interesting about the fiasco is Rabbi Kahn’s all-too-typical invocation of “lawfare” as a basis for attacking the conference and undermining academic freedom at Hastings.  His use of that mindless trope provides the perfect opportunity to plug David Luban’s exceptional new essay “Carl Schmitt and the Critique of Lawfare,” which makes the point far better than I ever could.  Here is the abstract:

“Lawfare” is the use of law as a weapon of war against a military adversary. Lawfare critics complain that self-proclaimed “humanitarians” are really engaged in the partisan and political abuse of law – lawfare. This paper turns the mirror on lawfare critics themselves, and argues that the critique of lawfare is no less abusive and political than the alleged lawfare it attacks. Radical lawfare critics view humanitarian law with suspicion, as nothing more than an instrument used by weak adversaries against strong military powers. Casting suspicion on humanitarian law by attacking the motives of humanitarian lawyers, they undermine disinterested argument, and ultimately undermine the validity of their own critique.

The paper then explores the vision of politics and law underlying the lawfare critique through a reading of the most significant theorist who defends that vision, the German theorist Carl Schmitt. Through a reading and critique of Schmitt, the article examines both the force of the lawfare critique and its flaws.

The paper is short and an easy read.  I can’t recommend it highly enough.  Perhaps someone could pass it along to Rabbi Kahn?

Moreno-Ocampo Is a Really Slow Reader (Updated)

by Kevin Jon Heller

According to the Prosecutor, he needs 421 days to review 12,900 pages of documents that the Pre-Trial Chamber recently ordered him to disclose to the Ocampo Six so they can prepare for their confirmation hearings:

International Criminal Court prosecutor Luis Moreno-Ocampo has told the court he needs 421 days to review the evidence to comply with orders given last week.

In his request to be allowed to appeal against the order by Judge Ekaterina Trendafilova last week to disclose his evidence against the six suspects, Ocampo says it is unfair to require him to disclose all his evidence now, when the confirmation hearings are still so far away.

He also says if he were to fully comply with judge Ekaterina’s order, he would have to review and disclose 12,900 pages of documents. This he says would take him 421 days.

But by Friday evening, ICC had not issued any orders stopping the status conference scheduled for Monday. It is at this conference that Ocampo is expected to disclose to the defence lawyers his evidence against the six suspects, ahead of the confirmation hearing set for September.

Google informs me that “12900/421=30.64.”  Which means that Moreno-Ocampo believes reading more than 31 pages of evidence per day is simply too onerous to contemplate.  Law students read far more than that every day — and I’m pretty sure that Moreno-Ocampo doesn’t have to read all 12,900 pages by himself.  (Interns, anyone?)  I’d also hope that he has already read at least some of the documents, given that they form the basis of his proprio motu investigation…

Perhaps the next time Moreno-Ocampo takes a long, pensive walk on the beach contemplating the fight against impunity — the low point of the otherwise excellent documentary The Reckoning — he should bring some reading with him.

UPDATE: CM correctly points out in the comments that the actual motions — one per set of three defendants — refer to “review days,” defined as “the work product of one reviewer in one working day,” not days for review.  One motion says that review will take 421 review days; the other says review will take 456 review days.  The total number of review days is thus 877.  Assuming that Moreno-Ocampo assigns multiple reviewers to the project, the length of time he is asking for will obviously be less than 421 days, as reported — obviously erroneously — by The Standard.  Five reviewers, for example, would take 175 days; ten would take 87; etc.

My apologies for the error; I could not find the motions on the ICC website.  Plucky blogger that I am, though, I want to turn my error into a teaching moment.  The OTP obviously has to be concerned with how its efforts are perceived in Kenya, which is quite literally hanging on Moreno-Ocampo’s every word and on the OTP’s every motion.  It thus seems incredibly unwise for the OTP to use counterintuitive legalese like “review day” in a motion — especially without a clear explanation of what the term means in practice (an equally legalistic footnote is grossly inadequate).  The motion could simply have said “it would take one reviewer 421/456 days to review the documents and prepare the analysis; as the Office of the Prosecutor intends to dedicate X reviewers to the project, the review will take X days to complete.”  Such a plain-language explanation would have avoided generating headlines in Kenya such as “Ocampo asks for 421 days to review evidence,” which makes the OTP look needlessly incompetent.  It would also likely have improved the motion’s chances for success, making far more clear that the OTP will be able to comply with the Pre-Trial Chamber’s ruling only by dedicating large numbers of (scarce) personnel to the review.  What’s more rhetorically effective: arguing that the review will take 877 review days, or that completing the review in two months will require a team of 15 reviewers working full-time?  I’m going with the latter.

“Efficiency” in the Law and Ethics of Targeted Killing?

by Kenneth Anderson

I’m attending a terrific University of Pennsylvania conference on targeted killing — an interdisciplinary conference with philosophers, lawyers, and national security professionals.  Congratulations to Penn’s Professor Claire Finkelstein for a great meeting.

(There are a number of military and former military officers here, but it would be great if the CIA would see its way to sending lawyers to join in meetings like this so that at least some part of its legal views are represented, however cautiously or hypothetically, on crucial normative questions like targeted killing in which public legitimacy matters.)

I’ve posted up the working draft of my paper for the conference to SSRN.  “Efficiency” Jus in Bello and “Efficiency” Jus ad Bellum in the Practice of Targeted Killing through Drone Warfare. I’ve put the abstract below the fold.

Continue Reading…

Faculty Positions at Melbourne Law School

by Kevin Jon Heller

My school is once again advertising for new faculty at all levels, from Lecturer to Professor.  Note the short deadline: applications must be in by April 27.  Here is the job description:

Melbourne Law School, Australia’s first all-graduate law faculty, invites applications for continuing appointments from creative legal scholars committed to educational innovation.

We continue to seek new colleagues at all ranks (levels B to E) and across all sub-disciplines who share our commitment to a highly collegial, research-intensive professional life. We specifically encourage applications from current or aspiring academics with a clear understanding of the value of cross-disciplinary and comparative analysis, who are able to integrate teaching with research and community engagement activities, and who are prepared to contribute to the vibrant communal life and culture at the Law School and within the University of Melbourne as a whole.

Melbourne Law School was the first faculty in Australia to teach law and awarded this country’s first law degrees. We were the first to move to the global standard Juris Doctor degree. Coupled with the unrivalled excellence of the Melbourne Law Masters and our internationally renowned Research Higher Degree programmes, we offer a unique opportunity to integrate scholarship and teaching. Colleagues are encouraged to affiliate with one or more of the Law School’s dozen research institutes, centres and groups, and to take full part in the University of Melbourne’s rich intellectual life – all in the heart of one of the world’s most liveable cities. Full details of appointment possibilities may be found at www.jobs.unimelb.edu.au, under the job category ‘Law’.

Melbourne Law School is an equal opportunity employer, and welcomes applications from scholars able to enrich the diversity of our community. In particular we encourage Aboriginal and Torres Strait Islander people to apply.

All enquiries to Professor Carolyn Evans, Dean, at law-academicpositions [at] unimelb [dot] edu [dot] au, tel. + 61 3 8344 6172. Applications (consisting of a curriculum vitae and a cover letter addressing the selection criteria) must be submitted online at www.jobs.unimelb.edu.au

You can find more information here.  As always, interested readers should feel free to email me.

Transparency and the Closure of Gaza

by Sari Bashi

Sari Bashi is the Executive Director of Gisha, an Israeli NGO that protects the freedom of movement of Palestinians, especially Gaza residents.

While many in the international community were unsure how to interpret Richard Goldstone’s Washington Post op ed earlier this month withdrawing the allegation made in the Goldstone Report that Israel intentionally targeted civilians during the war in Gaza, within Israel, the response was swift: the government declared a complete exoneration from all wrong-doing during the war, and hawkish lawmakers renewed their campaign against human rights organizations within Israel, blaming us for providing information to the Goldstone Report and for criticizing Israel’s conduct during the war.

Meanwhile, the District Court in Tel Aviv offered a different message, one in favor of transparency and public debate of Israel’s policy regarding Gaza: It ruled in favor of Gisha, the Israeli human rights organization that has been trying since April 2009 to obtain documents under the Freedom of Information Act relating to the closure of Gaza. The judgment (Hebrew only) notes the importance of transparency in a democratic country and dismisses claims that it would harm Israeli security to reveal what is certainly an embarrassing policy but one that has little to do with weapons or specialized defense systems. The court ordered the Defense Ministry to undo its redaction identifying the officials in charge of the policy and to release the “Red Lines” document purportedly used to calculate how much food should be permitted to enter Gaza under the policy in place from June 2007 to June 2010.

Yesterday, we at Gisha received the un-redacted documents showing that approval by the most senior generals in the Israeli military was necessary to add an item to the narrow list of goods permitted into Gaza prior to June 2010 (General, I know cinnamon has been cleared, but have you evaluated the security risk emanating from ginger?). We await the Red Lines document, which the state is withholding while it decides whether it will appeal to the Supreme Court. We will have to submit a new request in order to get the documents related to the current closure policy, which mostly bans construction materials, export, and the movement of persons.

So what does this have to do with Goldstone’s retraction? Well, it turns out that asking questions and publishing information is actually a pretty useful way of promoting an informed public debate – within Israel and outside it – about policies toward Gaza. Goldstone himself said that he changed his mind about the allegation of intentional killing of civilians in response to investigations that Israel conducted in response to pressure created by the Goldstone Report. The Israeli government changed its mind about the closure following a lively debate, sparked by the flotilla incident, about the security necessity of banning coriander and industrial-sized margarine from reaching Gaza.

We at Gisha will keep trying to obtain and publish information about access policies into and out of Gaza, in the belief that transparency is not a bad check on policy-makers who have a tendency to forget the law and also – common sense.

Detention and Interrogation in the LA Times, and a Targeted Killing Conference at Penn

by Kenneth Anderson

The LA Times has a good story on the complete backing away of the CIA from any new detentions or interrogations in counterterrorism under the Obama administration (though it started back under the Bush administration).  It describes a general paralysis of policy, frozen among a variety of government actors wary of doing anything that might restart the detention wars of the Bush administration.  It’s a well reported piece by Ken Delanian, April 10, 2011.

The U.S. has made no move to interrogate or seek custody of Indonesian militant Umar Patek since he was apprehended this year by officials in Pakistan with the help of a CIA tip, U.S. and Pakistani officials say.

The little-known case highlights a sharp difference between President Obama’s counter-terrorism policy and that of his predecessor, George W. Bush. Under Obama, the CIA has killed more people than it has captured, mainly through drone missile strikes in Pakistan’s tribal areas. At the same time, it has stopped trying to detain or interrogate suspects caught abroad, except those captured in Iraq and Afghanistan.

“The CIA is out of the detention and interrogation business,” said a U.S. official who is familiar with intelligence operations but was not authorized to speak publicly.

The article goes on to discuss the policy paralysis underlying this condition.  But I want to add one caution.  The article says, and it has been said many times in recent years, that the lack of a detention regime gives incentives to favor targeted killing.

Despite having made exactly this point myself many times, however, it bears noting that there are plenty of independent reasons for using targeted killings in many situations — avoiding detention is almost certainly far less important than the current meme suggests.  Even if there were some protocol for detaining and interrogating people, there are plenty of circumstances in which seeking to capture is too risky and other operational reasons.  Put another way, it’s not as though people are sitting around the government all day saying, hey, here’s a terrorist, we can’t really capture him, so let’s kill him!  Some level of background incentive is there, no doubt, but it’s background to a much more complicated decision-making foreground.

More interesting is that the article’s main focus is on a person captured by Indonesia from a CIA tip, not targeted with a missile.  Even in that case, in which it is not a choice between targeted killing and detention, the CIA still does not want custody, even though the article says that experts believe that the CIA could get far more and better information if it controlled the detention and interrogation process.  This is far from an ideal situation, of course.

While on the topic of targeted killing and drone warfare, let me point readers to a conference at University of Pennsylvania Law School this weekend, a joint effort among lawyers, philosophers, diplomats, and national security and military personnel.  It’s an impressive lineup – including Deborah Pearlstein and John Dehn – and you can even get CLE credit, I believe.  (I’ve put the announcement below the fold.)

I’ll be talking at the Penn conference about an ethical tension between jus in bello and jus ad bellum.  Targeted killing through drones results (I will take by assumption) in less civilian damage in the category of jus in bello.  According to a common argument made today, however, that greater “efficiency” in jus in bello considerations thereby makes resort to force by the United States too easy, as a jus ad bellum matter, and indeed possibly “inefficient.”  Why?  According to this argument, the lack of personal risk to US personnel in drone warfare lowers to an inefficient level the disincentives upon the US to use force.

I have many problems with this argument. But I do think it’s an interesting one from a philosophical perspective, because even if the jus in bello and jus ad bellum considerations are not strictly inconsistent, there is at least substantial tension between them.  Moreover, the ideas of “efficiency jus in bello” and “efficiency jus ad bellum” are interesting all on their own, even if I think that particularly the idea of an efficient level of violence, or an efficient level of incentives and disincentives to resort to force, premised around personal risk to US personnel, is deeply incoherent.  But the incoherency seems to me to take part in an even deeper, and still more wrong, idea that an “efficient level of resort to force” can be extracted independent of the idea of “sides” in war with incommensurate ends.

I’m not a philosopher, though, and find all this philosophy stuff difficult.  So I have been careful to load up my remarks with a lot of practical stuff about where, on the basis of my conversations, reading, discussions, etc., with lots of different folks, both targeted killing and drone warfare are likely to go.  Since those are just my perceptions of where the technology, practices, and policies are going, there’s plenty to dispute.  The conference has a great lineup of experts from many fields, however — so even if my remarks are a big miss, in good conscience I can still highly recommend it to you.

Continue Reading…

Self-Publishing Legal Scholarship

by Roger Alford

I read with great interest Professor Bainbridge’s post a few weeks ago about self-publishing legal scholarship. The discussion Bainbridge linked to in that post by Joe Konrath and Barry Eisler about self-publishing (and expanded upon here) is even more interesting. (Eugene Volokh’s posts from 2009 are also quite useful.)

Self-publishing of fiction appears to be the wave of the future. On the other hand, self-publishing non-fiction works, including academic scholarship, is just now on the horizon. SSRN is the first great wave of self-publishing legal scholarship, but it complements rather than replaces traditional publications. Is the next great wave of legal scholarship going to be self-published books? I would not be surprised.

Bob Mayer’s post today about self-publishing his latest book of historical fiction, Duty, Honor, Country, only reinforces that impression. Much of what he says could apply with equal force to books of non-fiction, including legal scholarship. Here’s a few choice excerpts:

I appreciate the opportunity to blog here today, as it’s a very special occasion, not only being the 150th Anniversary of the start of the Civil War, but the continuation of a new era for myself and other authors.

In the military, it’s a maxim that every army is always prepared to fight the last war, not the next one. That gets a lot of people killed. In the Green Berets, we were always looking ahead, preparing for what would be, rather than what was. That was my Special Forces experience and I’m applying it to my writing career. Instead of looking at was, I’m looking forward at will be.

That’s the reason I’ve made the switch from traditional publishing to self-publishing. My next book, the epic Duty, Honor, Country, a Novel of West Point & the Civil War is live today on Amazon Kindle….

[One] reason I made the decision to publish Duty, Honor, Country myself was timing. As noted, today is the 150th Anniversary of the start of the Civil War. There’s no way a traditional publisher could have gotten the book out by today. They’re still working on the same business model they had before computers became household items, where their production schedule is normally at least a year once they contract for a book. I’ve had it take as long as 8 months just to get the contract in hand….

I’m pricing Duty, Honor, Country at $4.99 because it’s epic, almost twice the length of my other books, at 175,000 words and took me two years to write….

Joe says, “Last year I predicted that legacy publishing wouldn’t be done in by technology, or by readers retreating from print and embracing digital. It would be authors who kill the Big 6 by deciding to self publish”….

Publishers still don’t understand that they aren’t going to have anything to publish if they don’t immediately change their ways. Once again, for all those industry folks who read my blog but are too chicken to leave comments, here’s what you need to do:

1. Give authors fair e-royalty rates. 50% should be the ground floor, and it should go up from there using various escalators.

2. Share the e-wealth with authors by offering them higher rates on contracts that are still active.

3. Drop the prices of ebooks. If anyone in New York has been paying the slightest bit of attention to me for the last two years I’ve made it painfully clear how cheaper ebooks make more money than expensive ones, with reams of data and dozens of examples to support this.

4. If you are an agent, begin to morph your business into an estributor model, or you’ll sink along with the Big 6.

In some respects legal scholars have different incentives to self-publish than fiction writers. We earn a nice living from our scholarship, although almost none of that income comes from royalties. We do not need royalties to survive in this business. What we strive for in legal scholarship is to be part of the marketplace of ideas. Our ideas–at least those published in books–are hidden behind a giant paywall established by legacy publishers. We currently reach hundreds of readers when we could reach thousands if the price were right.

Legacy publishers are loathe to reduce the price of ebooks despite the fact that the marginal cost of each additional download is nil. They do so because they don’t want ebooks to cannibalize hard-copy and paperback sales. That makes perfect sense if you are a publisher. But authors don’t care about cannibalizing print sales, because royalties are of no consequence to most scholars. They just want their stuff to be read.

Legacy publishers of legal scholarship assume that they can continue to pay authors fifteen percent royalties, regardless of whether the book is published digitally or in print. But that pay structure actually creates incentives to self-publish.

Why should established legal scholars agree to put up artificial barriers between themselves and their readers? For example, how many more readers would purchase Mary Ann Glendon’s latest book, The Forum and the Tower, if it were available on Kindle for $4.99 instead of in hard copy priced at $27.95 (or on Amazon for $18.45)? Do we really need the OUP label to tell us that Mary Ann Glendon’s books are worth reading? Glendon’s wonderful book, A World Made New, costs $11.99 for downloading on Kindle. If she were in control of the pricing, she could drop the price of her ten-year-old book down to $2.99 or $0.99, so that it would actually be cheaper to buy digitally than purchasing it used for $10.33 ($6.34 plus $3.99 shipping) on Amazon. How many more people could learn about Eleanor Roosevelt and the Universal Declaration of Human Rights if they could purchase Glendon’s book without a tinge of financial guilt?

I don’t know what the future holds for self-publishing of legal scholarship, but I doubt the status quo will prevail for much longer. Law professors are lemmings. They follow the crowd. Once it is professionally acceptable to self-publish books in digital format, established law professors will do so, because the benefits far outweigh the costs. We want to be widely read, so why should we opt-in to a system that muffles our voices when we have technology that offers a megaphone?

Ten years ago none of us had ever heard of SSRN. What SSRN did to law review articles, self-publishing could do to casebooks, treatises and law-related non-fiction. The new age of self-publishing is fast approaching the world of legal scholarship. It will just take a few legacy scholars to create a norm cascade that will rock the world of legacy publishing.

State Department Releases 2010 Human Rights Report

by Peggy McGuinness

On Friday, the State Department issued the 2010 Country Reports on Human Rights Practices, a mandatory report to the United States Congress on human rights conditions around the globe.  This link to the full report is here,  the remarks of Secretary Clinton is here, and a very useful q and a with Mike Posner, Assistant Secretary for Democracy, Human Rights and Labor is here.   If you are wondering why the report cannot be downloaded as one neat pdf file, it weighs in at over 7,000 printed pages!  The Department also announced the launching of a new, separate web portal for human rights reporting, www.humanrights.gov:

As part of our mission to update statecraft for the 21st century, today I’m also pleased to announce the launch of our new website, humanrights.gov.* This site will offer one-stop shopping for information about global human rights from across the United States Government. It will pull together reports, statements, and current updates from around the world. It will be searchable and it will be safe. You won’t need to register to use it. We hope this will make it easier for citizens, scholars, NGOs, and international organizations to find the information they need to hold governments accountable.

I will be posting more on the human rights reporting process in the weeks to come, but I would point out for now that it is a very interesting development in the global human rights project that the U.S. State Department has become–as the new website amply demonstrates–a central repository for reporting on human rights protection globally.  But with the advent of the Universal Periodic Review process at the UN Human Rights Council, it is not the only one.  Of course, not everyone is so enthusiastic about the State Department’s self-appointment as global arbiter.  The Chinese government, while engaging in one of its worst crackdowns against human rights lawyers and political activists in recent memory, managed to find time to issue its own report on human rights conditions in the U.S.:

In the United States, the violation of citizens’ civil and political rights by the government is severe, said the report.

Citizen’s privacy has been undermined. More than 6,600 travelers had been subject to electronic device searches between October 1, 2008 and June 2, 2010, nearly half of them American citizens, said the report, citing figures released by the American Civil Liberties Union (ACLU) in September 2010.

The report said abuse of violence and torturing suspects to get confession is serious in the US law enforcement, and “wrongful conviction occurred quite often.”

While advocating Internet freedom, the US in fact imposes fairly strict restriction on cyberspace, said the report.

The United States applies double standards on Internet freedom by requesting unrestricted “Internet freedom” in other countries, which becomes an important diplomatic tool for the US to impose pressure and seek hegemony, and imposing strict restriction within its own territory, the report said.

The US regards itself as “the beacon of democracy.” However, its democracy is largely based on money, the report said.

According to media report in 2010, US House and Senate candidates shattered fundraising records for a midterm election, taking in more than $1.5 billion as of October 24. The midterm election, held in November 2010, finally cost $3.98 billion, the most expensive in the US history.

More less-than-enthusiastic reactions to the US report can be found here (Bangladesh) and here (Russia).

* Great domain name, but searchability is not yet optimal.

Response to Blum Published

by Kevin Jon Heller

As readers will recall, I wrote a short response to Gabriella Blum’s wonderful essay on IHL and common-but-differentiated responsibilities for our inaugural Opinio JurisHarvard International Law Journal symposium.  HILJ has now published my much longer formal response.  Here is an overview, from my introduction:

Blum’s normative analysis of the desirability of CDRs in IHL is exceptionally powerful, and I agree with most of her conclusions. This brief response, therefore, is intended to be more constructive than critical. In particular, I want to raise five issues that I believe warrant further exploration: (1) whether permitting judges to differentially apply IHL standards could be seen as legitimate; (2) whether proportionality is the kind of standard that permits differential application; (3) whether, and to what extent, CDRs would encourage states and nonstate actors to comply with IHL; (4) whether the case for CDRs might be stronger in non-international armed conflict (NIAC) than in international armed conflict (IAC); and (5) whether it is possible to assess the humanitarian effect of CDRs without abandoning the jus ad bellum/jus in bello distinction. I conclude that, in fact, Blum’s own analysis supports recognizing at least one kind of CDR: namely, requiring strong states to spend more money than weak states on procuring and using precision weaponry.

Comments most welcome!  Feel free to leave them here or email me.

The Irritating ICC Prosecutor

by Kevin Jon Heller

Luis Moreno-Ocampo wants to formally investigate crimes against humanity in Cote D’Ivoire.  Cote D’Ivoire consented to the ICC’s jurisdiction over crimes committed there eight years ago.  So what’s Moreno-Ocampo waiting for?  Apparently, a state referral:

“We are concerned about the recent information on massive atrocities committed in the western part of Cote d’Ivoire,” he said. “We are trying to define exactly what happened there.”

Moreno-Ocampo said that “Gbagbo himself accepted jurisdiction of the court and Mr. Ouattara confirmed that, so what we are doing now is collecting information in order to open an investigation there.”

He urged the Ivory Coast’s West African neighbors to help him speed up the process of starting an investigation by “referring” the case to the court.

If a state that recognizes the court calls for an investigation, Moreno-Ocampo can honor that request immediately. If that does not happen, Moreno-Ocampo has to gather enough evidence to persuade a panel of judges they should allow him to open an investigation, a process that could take weeks or months.

“We are discussing with some state parties particularly from the region,” he said. “If they decide to refer the case, that will help to expedite the activities of the court in the Ivory Coast.”

I’m sorry, but this is just dumb.  Yes, a proprio motu investigation requires the Prosecutor to convince the Pre-Trial Chamber that there is a “reasonable basis” to proceed with one, while a state referral does not.  But the Prosecutor has to determine whether such a reasonable basis exists either way; Article 18 of the Rome Statute, governing admissibility challenges, requires the Prosecutor to determine that there is a reasonable basis to investigate state-referred situations.  Given the low “reasonable basis” standard, is it really that onerous to convince the Pre-Trial Chamber that an investigation is warranted in Cote D’Ivoire?  After all, the OTP has been monitoring the situation there for eight years.  In all that time, it hasn’t found enough information to justify an investigation?

Also, notice the complaint: persuading the Pre-Trial Chamber could take weeks or months.  You know what might also take weeks or months?  Convincing a state to refer the situation, particularly one in the region.

States fought long and hard to ensure that the Prosecutor has proprio motu powers.  Moreno-Ocampo finally got over his ridiculous love of self-referrals with the Kenyan situation; if he wants to investigate in Cote D’Ivoire, he should — to quote the famous Greek philosopher Nike — just do it.

Guest-Post: Anna Dolidze on the ICJ Judgment in Georgia v. Russia

by Kevin Jon Heller

The following is a guest post by Anna Dolidze, a JSD candidate at Cornell Law School. In 2007-08, Dolidze was
 an Albert Podell Global Scholar at Risk at New York University Law
 School and a Visiting Fellow at Columbia University’s Harriman Institute.  She has worked for a number of international organizations, including for Save the Children, Russian Justice Initiative, and Human Rights Watch.  Our thanks to her for the contribution!

Last week the International Court of Justice handed down the judgment on Preliminary Objections in the case of Georgia v. Russian Federation. With ten votes to six, the Court upheld the preliminary objection by Russia and declined to proceed to consider the case on merits. The judgment presents interesting material for examination from many angles. As the dissenting opinions have already been made publicly available, their close examination will give food for thought to those that study politics at the international court. The judgment is also noteworthy for its detailed treatment of Article 22 of the Convention on Elimination of All Forms of Racial Discrimination (CERD) and its history. It is also interesting to see how the Court examined the political rhetoric from both countries through the lens of international law. Those that study how military confrontation is translated into “lawfare” will also find interesting material for contemplation. One particular aspect of the judgment, with which I shall deal in this post, is how it played out in domestic politics in both countries. Russian and Georgian political actors interpreted the judgment variably. Yet, they were similar in one particular way. Government agencies of both countries announced it as victory for their country. Furthermore, a look at how domestic political players in Georgia handled the judgment confirms, once again, that judgments of international tribunals are part and parcel of Dezalay and Garth’s concept of “international strategies.” Domestic actors “use foreign capital, such as resources, degrees, contacts, legitimacy, and expertise … to build their power at home.” Georgian government and political actors interpreted the judgment with the view to maximize their own domestic political capital.

The case was launched by the application filed by Georgia on August 12, 2008. On the same day President of France Nicolas Sarkozy proposed a cease-fire in the Georgian-Ossetian zone of conflict. Georgia requested the Court to declare that Russia violated its obligations under CERD by engaging in acts and practices, contrary to Articles 2,3,4,5 and 6 of CERD. Its application mainly concerned Russia’s responsibility for actions on the territory of two secessionist republics of Georgia, Abkhazia and South Ossetia. Georgia had filed a complaint on the basis of article 22 of CERD. Article 22 provides, “[a]ny dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement”. CERD entered into force between in the parties on July 2, 1999.

Both parties have benefited from the legal representation of the prominent figures in international law, including James Crawford and Phillip Sands representing Georgia and Allain Pellet and Andreas Zimmerman representing Russia. Russia raised preliminary objections to the jurisdiction of the Court. Firstly, Russia contended that there was no dispute between the parties within the meaning of article 22. Secondly, that the procedural requirements for the recourse to article 22 have not been met…

OLC Issues Libya War Powers Opinion

by Peter Spiro

The Office of Legal Counsel has released an opinion asserting the constitutionality of President’s Obama’s use of force against Libya.  Here’s how it frames the question:

[T]he President’s legal authority to direct military force in Libya turns on two questions: first, whether United States operations in Libya would serve sufficiently important national interests to permit the President’s action as Commander in Chief and Chief Executive and pursuant to his authority to conduct U.S. foreign relations; and second, whether the military operations that the President anticipated ordering would be sufficiently extensive in “nature, scope, and duration” to constitute a “war” requiring prior specific congressional approval under the Declaration of War Clause.

I think this is exactly right.  It’s notable in conceding that some uses of force do require advance congressional approval (thus chucking Korea as a dubious precedent for large-scale commitment on the basis of UNSC action alone).  It also broadly frames “important national interests” to get us beyond the (former) need to assert the protection of US citizens and property as a basis for the action.

The opinion is also notably insofar as it makes almost no use of Bush-era precedents or reasoning.  The only Bush OLC memo that gets cited relates to the 2004 Haiti operation (when Jack Goldsmith was at the helm).  I don’t think this is a coincidence.  Future administrations will shy away from Yoo/Bybee work product like the Supreme Court shies away from Korematsu; they may remain good law in some formal sense, but they’re hardly standing up in the court of history.

David Bernstein Misrepresents Human Rights Watch (Yet Again)

by Kevin Jon Heller

This time concerning the Goldstone Report and whether Israel intentionally targeted civilians during Operation Cast Lead as a matter of policy.  You know a post is in trouble when it’s entitled “Human Rights Watch Lies re: Goldstone Retraction” but then states, three paragraphs later, “Well, maybe lying isn’t quite right. Roth chose his words carefully, and I suppose it’s technically true that HRW never explicitly endorsed a Goldstone Report finding that Israel had a policy of targeting civilians.” So HRW is lying, except that it’s not.

The misleading title, however, is far from the biggest problem with the post.  Even worse is Bernstein’s inability to understand what Goldstone retracted and what HRW has said about Israel’s ostensible policy of intentionally targeting civilians.  Here is the relevant paragraph from Goldstone’s editorial (emphasis added):

The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

Goldstone thus clearly distinguished between individual incidents in which specific Israeli soldiers intentionally targeted civilians, the existence of which he believes has been reaffirmed by the Israeli and UN investigations, and the existence of an official Israeli policy to intentionally target civilians, which he believes has been disproven by by the Israeli and UN investigations.

Now consider the laundry list of statements that, according to Bernstein, contradict Ken Roth’s recent claim in the Guardian that HRW has never argued that Israel intentionally targeted civilians as a matter of official policy (emphasis in the original)…

Call for Proposals, International Law Weekend 2011

by Peggy McGuinness

The American Branch of the International Law Association has a call for panel proposals for International Law Weekend 2011, which takes place October 20-22 in New York City.  The theme of this year’s ILW is “International Law and National Politics.” The call for proposals can be found here, and includes the following information about submissions, which are due to the organizers by Wednesday, May 4:

This year’s three-day conference will explore the intersection of international rules and norms and domestic politics and policymaking. To what extent do international standards influence the application and interpretation of national law including complimentary or countervailing policies sought by domestic policymakers, non-governmental actors and/or civil society? Expert panels and discussion sessions will examine these and other issues with regard to such diverse areas as human rights and humanitarian intervention, national security, immigration, trade, labor, health care and the environment.

The Co-Chairs of ILW 2011 are Professor Martin S. Flaherty, Professor of Law and Co-Director of the Leitner Center for International Law and Justice at Fordham Law School, mflaherty17 [at] yahoo [dot] com, Sahra Diament of the United Nations Office of Legal Affairs, diament [at] un [dot] org, and Jill Schmieder Hereau, Program Coordinator at the International Law Students Association, jshereau [at] ilsa [dot] org. [Donald Donovan of Debevoise and Plimpton has also
joined as a co-chair.]

The Co-Chairs invite proposals for panels for ILW 2011. Please submit proposals by email to each of the Co-Chairs no later than Wednesday, May 4, 2011. The proposals should be structured for 90-minute panels, and should include a formal title, a brief description of the subjects to be covered (no more than 75 words), and the names, titles, and affiliations of the panel chair and three or four likely speakers. The proposals should also describe the format envisaged (point-counterpoint, roundtable, or other). One of the objectives of ILW 2011 is to promote a dialogue among scholars and practitioners from across the legal spectrum, so whenever possible, panels should include presentations of divergent views.

On a related note, students, faculty, and practitioners who are not already members of ABILA should consider joining.  In addition to access to ABILA publications, membership entitles you to special rates at ILW and the biennial ILA meetings.  Members of the ILA are also actively involved in drafting projects and studies along with the 45 other state associations.  Our friend Ruth Wedgwood is the current President of ABILA and passes along the following exciting information about ILA membership:

The studies of the ILA are enormously influential — see, for example, Maurice Mendelsohn’s study on Customary International Law, which has been widely cited by courts, including the International Court of Justice, and in the academic literature, with the unique authority of a group founded in 1873, that has truly international membership and international exchanges of views.

Over 25 members of the American Branch of the ILA have recently served on these international committees, including Professor Barbara Stark as chair of the ILA International Family Law committee, Christina Cerna of the ILA International Human Rights committee, Professor Linda Silberman as a U.S. member of the ILA International Civil Litigation committee, Professor Jim Naziger as chair of the Cultural Heritage Law committee.  and Coalter G. Lathrop as rapporteur of the Law of the Sea Baselines. Women have played a major role in the organization, with Professor Christine Chinkin of the London School of Economics as the current headquarters director of studies, Professor Catherine Kessedjian of the University of Paris as chair of the International Civil Litigation committee, and Professor Laurence Boisson de Chazournes of the Unversity of Geneva as co-chair of the Practice and Procedure of International Tribunals committee — alongside such eminent male-persons as former UK legal adviser Franklin Berman as chair of the Soft Law and International Investment Committee, and Professor Nicolaas J. Schrijver and Kamal Hossain as co-chairs of the UN Reform Committee.

There are also study committees of the American Branch itself, and its studies are published both in the biennial proceedings of the Branch and will soon be published on the web as well.  The American Branch director of studies is currently Professor Andrea Bjorklund of the University of California at Davis.

It’s a value-proposition, with lots of opportunity to break outside the bubble of American views of international Law.  Besides, the next Biennial ILA meeting in August 2012 is in Sofia, the pearl of the Black Sea.  The 2014 meeting is in Japan, and the 2016 meeting will be in Washington, D.C.

For more information, contact Ruth Wedgwood, at rwedgwood [at] jhu [dot] edu, or visit the American Branch web site at http://ila-americanbranch.org.  Membership is $70 for new members for the first two years, which is divided between the American Branch and the London headquarters which supports the study activities.  See http://ila-americanbranch.org/Membership.  For those who are able, the Branch also welcomes sustaining members at $200 per year.

How the Laws of War Helped to End American Slavery

by Roger Alford

There’s a great article by Professor Adam Goodheart in the New York Times describing how Union Major General Benjamin Butler, a lawyer by training, used the laws of war to help end slavery in America. When three fugitive slaves presented themselves to Butler at Fort Monroe, he had to quickly decide what to do with them. The Confederate soldiers had been using the slaves to construct a battery aimed directly at his fort. No sooner had the slaves sought refuge when a rebel officer, John Baytop Cary, approached Fort Monroe under a flag of truce to demand the return of his property. Here’s how Goodheart describes the incident:

Butler, also on horseback, went out to meet him. The men rode, side by side, off federal property and into rebel Virginia. They must have seemed an odd pair: the dumpy Yankee, unaccustomed to the saddle, slouching along like a sack of potatoes; the trim, upright Virginian, in perfect control of himself and his mount.

Cary got down to business. “I am informed,” he said, “that three Negroes belonging to Colonel Mallory have escaped within your lines. I am Colonel Mallory’s agent and have charge of his property. What do you mean to do with those Negroes?”

“I intend to hold them,” Butler said.

“Do you mean, then, to set aside your constitutional obligation to return them?”

Even the dour Butler must have found it hard to suppress a smile. This was, of course, a question he had expected. And he had prepared what he thought was a fairly clever answer.

“I mean to take Virginia at her word,” he said. “I am under no constitutional obligations to a foreign country, which Virginia now claims to be.”

“But you say we cannot secede,” Cary retorted, “and so you cannot consistently detain the Negroes.”

“But you say you have seceded,” Butler said, “so you cannot consistently claim them. I shall hold these Negroes as contraband of war, since they are engaged in the construction of your battery and are claimed as your property.”

Ever the diligent litigator, Butler had been reading up on his military law. In time of war, he knew, a commander had a right to seize any enemy property that was being used for hostile purposes. The three fugitive slaves, before their escape, were helping build a Confederate gun emplacement. Very well, then — if the Southerners insisted on treating blacks as property, this Yankee lawyer would treat them as property, too. Legally speaking, he had as much justification to confiscate Baker, Mallory and Townsend as to intercept a shipment of muskets or swords….

Butler didn’t think of the three fugitives as property, but he was willing to describe them as such in response to his enemy’s demands. It was a clever use of the laws of war, one that mocked the absurdity of the Confederate’s position. As Goodheart puts it:

Were these blacks people or property? Free or slave? Such questions were, as yet, unanswerable — for answering them would have raised a host of other questions that few white Americans were ready to address. Contrabands let the speaker or writer off the hook by letting the escapees be all those things at once….

[I]n its very absurdity, reflecting the Alice-in-Wonderland legal reasoning behind Butler’s decision, the term also mocked the absurdity of slavery — and the willful stupidity of federal laws that, for nearly a century, had acknowledged no meaningful difference between a bushel of corn and a human being with dark skin. Eventually, even black leaders adopted it.

The article is a great read, and it only whets my appetite for the book.

Kenya’s Latest Attempt to Invoke Complementarity

by Kevin Jon Heller

The Kenyan government has filed a 30-page motion with the ICC’s Pre-Trial Chamber II arguing that recent improvements to the Kenyan criminal-justice system render the cases against the Ocampo Six inadmissible.  Here are the highlights of the reforms, from the motion’s introduction (para. 2):

2. The Government’s Application must be determined with a full understanding of the fundamental and far-reaching constitutional and judicial reforms very recently enacted in Kenya. Following a Governmental campaign of national unity and reconciliation, and a nationwide referendum, a new Constitution was adopted in August 2010:

  • The new Constitution incorporates a Bill of Rights which significantly strengthens fair trial rights and procedural guarantees within the Kenyan criminal justice system,
  • The Constitution gives effect to a comprehensive range of judicial reforms which fundamentally transform the administration of justice in Kenya. Deficiencies and weaknesses from the past have been specifically targeted to guarantee the independent and impartial dispensation of justice.
  • National courts will now be capable of trying crimes from the post-election violence, including the ICC cases, without the need for legislation to create a special tribunal, thus overcoming a hurdle previously a major stumbling block,
  • The new Constitution guarantees the independence of the State’s investigative organs and ushers in wide-ranging reforms to the police services.
  • An independent Commission for the Implementation of the Constitution is established to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution.

These are welcome developments, and their importance should not be underestimated.  If the motion accurately reflects sentiment on the ground, Kenya does indeed seem to be in the process of creating a criminal-justice system that can handle high-profile, sensitive cases.  Moreover, the motion rightly emphasizes (para. 3) that the Kenyan government — at least the Executive branch — has fully cooperated with the ICC, resisting attempts by members of Parliament to force the government to withdraw from the Court.

That said, Kenya’s case for inadmissibility remains fatally deficient.  The problem is a simple one: the government is still not investigating the Ocampo Six.  Indeed, the motion admits — as obliquely as possible — that there is no guarantee the Ocampo Six will ever be investigated (emphasis mine)…

ASIL Teaching International Law Interest Group: May 6 Conference at Pace Law School

by Peggy McGuinness

I am happy to pass along the following announcement for the forthcoming conference at Pace Law School on the use of empirical methods in teaching and writing about international law. Early registration closes this Wednesday, April 6. Here is the message from interest group co-chairs Cindy Galway Buys and Tom McDonnell:

The Teaching International Law Interest Group of the American Society of International Law is again holding a conference on International Law Teaching, this year at Pace University School of Law in White Plains, N.Y., on Friday, May 6. The conference is being co-sponsored by the American Branch of the International Law Association.

The theme is a little different from our Fall 2009 conference at Hofstra. We are focusing on getting both students and faculty involved in empirical research, historical research, Web 2.0, and experiential learning. Beth Simmons of Harvard is one of the country’s leading empiricists in the field of international law; she will be speaking along with Jordan Paust, Houston; Sital Kalantry, Cornell; Julian Ku, Hofstra; Peggy McGuinness, St. John’s; Tom Lee, Fordham; among other distinguished speakers. Anthony VanDuzer, from Ottawa University Faculty of Law, will be discussing his course on NAFTA, which he co-taught with a U.S. law professor and a Mexican law professor, using Skype to bring professors and students together from the three countries simultaneously. Robert Van Lierop, former UN ambassador and currently with the UN in Darfur, will be discussing the externship program he supervises with law students assisting island countries at the United Nations.

For more information and to register, visit this link.

We think it will be a stimulating conference; we hope you can join us.

Best regards,

Cindy Galway Buys and Tom McDonnell

Co-Chairs, Teaching International Law Interest Group,
American Society of International Law

P.J. Crowley on the “Difference” Between WikiLeaks and the New York Times

by Kevin Jon Heller

It’s amazing what not working for the government can do for one’s ability to tell the truth.  As readers likely know, State Department spokesman P.J. Crowley was forced to resign last month for the sin of accurately describing Bradley Manning’s abusive conditions of confinement as “ridiculous and counterproductive and stupid.”  (For his part, the ever-credulous Obama dismissed the abuse allegations on the ground that Manning’s abusers had assured him everything was fine.)  Crowley has not backed down from his claim; indeed, he has reaffirmed his position a number of times since his resignation.

Now Crowley has a new target: the administration’s desire to prosecute WikiLeaks for releasing the State Department cables.  From a new article by Justin Elliott in Salon (emphasis mine):

Since the WikiLeaks story has receded in the news, the tough talk from the administration has mostly faded. The status of any ongoing probe is unclear. But the looming question of how the Justice Department would distinguish what WikiLeaks did — publishing leaked documents — from what its media partners like the Guardian and the New York Times did remains unanswered.

The Espionage Act of 1917 makes it illegal to retain classified national defense information if the government asks for it back. But if that rarely used law applies to WikiLeaks, it would also apply to every big news organization that publishes national security reportage, according to legal experts.

Crowley, for his part, has by no means become a full-throated WikiLeaks supporter. Over the weekend, he tweeted: “The Manning prosecution, done right (his pre-trial treatment included), and improved data security are the proper responses to Wikileaks.”

I asked Crowley if that means he does not believe WikiLeaks itself should be prosecuted. He wrote in response:

“I do not see WikiLeaks as journalism. It is a source of information. That said, it is hard to distinguish what WikiLeaks did from what the New York Times did. That’s why the focus is rightly on Bradley Manning.”

I disagree with Crowley that WikiLeaks is not journalism.  (I don’t see how obtaining, editing, and releasing information relevant to the public interest doesn’t qualify.)  But, of course, Crowley is absolutely correct that there is no relevant legal difference between WikiLeaks and media outlets like the New York Times regarding the release of the cables.

If a former State Department spokesman gets it, why can’t everyone else?

Have You Worked in a Post-Conflict Justice Setting?

by Peggy McGuinness

Have you worked on post-conflict justice issues? Have you been part of a rule of law project in a conflict zone?  If so, you may be of help to our colleague Professor Elena Baylis (Univ. of Pittsburgh), who is working on a really terrific empirical project on post-conflict justice.  Here is the information from Elena which includes eligibility to win a $100 to spend at Amazon.com:

If you have ever worked in the field of post-conflict justice, including work on post-conflict rule of law and/or work on post-conflict accountability for atrocities, you are invited to participate in an anonymous survey: http://pcjsurvey.questionpro.com (English) or  http://EnqueteJPC.questionpro.com (French).  The survey will take about 15 minutes to complete.

By participating in this study, you will help us understand the role played by people’s work and career choices in shaping the field of post-conflict justice.  This is the first study to focus on the people involved in post-conflict justice work, rather than on institutions and processes, so it is a great opportunity to add to our understanding of the field by sharing your experiences.

As thanks for participating in the survey, you will be eligible to win a $100 amazon.com gift card.  One of every 25 participants in the survey will win.  At the end of the survey, you will be given access to a report with the survey results thus far, so that you can see how your answers compare to those of others working on post-conflict justice issues.  You will also be given the chance to request a copy of the final report of this research study and to volunteer for a follow-up interview if you wish.

The survey is anonymous.  All individual responses are confidential and will be kept secure, and the data from the survey will be reported only in the aggregate.  There are no foreseeable risks to you from participating in this research project, and the only benefit offered is the chance at winning a gift card. Your participation is voluntary and you may withdraw at any time. This research study is being conducted by Elena Baylis, Associate Professor, University of Pittsburgh School of Law, ebaylis [at] pitt [dot] edu.

Please feel free to forward this invitation to your post-conflict justice colleagues and friends.  Thank you for your time and support!

The Interplay of Chevron Deference and Charming Betsy

by Roger Alford

Assume that a U.S. agency modifies its interpretation of a federal statute to respond to an adverse WTO decision. In so doing, consistent with the Charming Betsy doctrine, its interpretation is brought into conformity with WTO jurisprudence with respect to one stage–the investigation stage–of the administrative proceeding. But the agency does not alter its interpretation of the federal statute with respect to other stages of the administrative proceeding. Does Chevron deference to administrative agencies allow for inconsistent interpretations of the same federal statute?

That was the question of first impression presented to the United States Court of Appeals for the Federal Circuit in Dongbu Steel v. United States. Its answer was unequivocal: The United States may alter its interpretation of a statute to respond to an adverse WTO decision, but to interpret the statute differently in one context but not another is unreasonable.

“An agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently…. [T]he government proffers a single explanation for [it’s] inconsistent interpretation: The methodology for investigations was changed in response to an adverse WTO report….

Commerce is entitled to change its interpretation to respond to an adverse WTO decision… [But] the political branches’ decision to comply with the WTO ruling only as to investigations does not mean that it is lawful to give inconsistent constructions to the same statutory language. Rather, Commerce’s interpretation of the statute must comply with domestic law including reasonably interpreting statutes. In other words, the government’s decision to implement an adverse WTO report standing alone does not provide sufficient justification for the inconsistent statutory interpretations….

In the absence of sufficient reasons for interpreting the same statutory provision inconsistently, Commerce’s action is arbitrary.”

I have previously written about the interplay of Charming Betsy and Chevron deference here. In that article I noted that “where the administrative interpretation of an ambiguous statute is consistent with the WTO obligation, courts reviewing the interpretation have upheld it under Chevron deference.” But Dongbu Steel raises the issue of the Charming Betsy doctrine applied in such a way that it is unreasonable under Chevron.

The interplay of Charming Betsy and Chevron deference means that the decision to interpret a statute consistent with an adverse WTO report will have broader ramifications than previously understood. Compliance with a WTO decision in one context may require altering government behavior in other contexts, not because the WTO decsion reaches that other context, but because Chevron requires it. Under Chevron, agency action is arbitrary and capricious unless the agency offers a sufficient explanation for treating similar situations differently.

Guest-Post: Nuclear Trafficking as an International Crime?

by Kevin Jon Heller

The following is a guest-post written by Orde Kittrie, a professor at ASU’s law school, and Sandy Spector, the deputy director of the James Martin Center for Nonproliferation Studies.  They very much want input from OJ’s readership, so please post your thoughts.  Our thanks to Orde and Sandy for contributing the post!

Seven years after A.Q. Khan publicly confessed to his illegal nuclear dealings, and 35 years after he fled the Netherlands with a cache of stolen nuclear blueprints, the father of Pakistan’s nuclear weapons program (and Iran’s) has yet to pay a significant price for his transgressions.

How might the next A.Q. Khan be more successfully prosecuted or deterred? Does it make sense to try to turn trafficking in nuclear materials (e.g., enriched uranium) and nuclear commodities (e.g., nuclear equipment and technology) into an international crime? If so, how? This will be a major topic of discussion at an April 4-5 conference in Washington, DC sponsored by the Nautilus Institute for Security and Sustainability and the Carnegie Endowment of International Peace (see here for more information about the conference). We thought it might be interesting to pose these questions for brainstorming by the collective expertise of Opinio Juris readers.

In the rest of this post, we will briefly 1) describe what has been suggested would be the ideal (but possibly unattainable) new legal instrument for combating nuclear smuggling; 2) describe the major current relevant legal instruments and their flaws; and 3) identify several potential options, short of the ideal, for making nuclear trafficking an international crime. We welcome your comments on all aspects of this analysis, including which one or more of the potential options might make the most sense to pursue. We also welcome any other ideas you might have for maximizing the international community’s chances to prosecute and/or deter the next A.Q. Khan.

What Is The Ideal New Legal Instrument for Combatting Nuclear Smuggling?

It has been suggested that the ideal would be a new treaty, adhered to by all relevant states, that would: make nuclear material and nuclear commodity trafficking an offense under its terms; require all parties to enact laws making nuclear trafficking a high-penalty criminal offense domestically; give parties broad jurisdiction to bring traffickers to justice, by providing jurisdiction over persons on their territory, over their nationals who committed offenses abroad, and over any individual who injured a national of the state party; and include strong mutual legal assistance provisions, requiring all parties to extradite or prosecute and to support prosecutions in the courts of other parties.

What Are The Major Current Relevant Legal Instruments And Their Flaws?

The International Convention for the Suppression of Acts of Nuclear Terrorism (entry into force 2007) contains many of the elements of the “ideal new treaty” discussed above. But it makes only trafficking in nuclear materials an offense, not trafficking in commodities of the type provided to North Korea, Iran, and Libya by the A.Q. Khan network or the commodities being illicitly acquired today by Iran, Pakistan, and North Korea. Moreover, it has only 76 parties.

The Convention on the Physical Protection of Nuclear Material(entry into force 1987) has 145 parties, but is also limited to nuclear material trafficking, and indeed, covers only nuclear material in peaceful uses, not that in military programs.

UN Security Council Resolution (UNSCR) 1540 requires all states to control nuclear materials and commodities (termed “related materials”) and to adopt and enforce civil and criminal penalties against the export, trans-shipment, and financing of transfers that would contribute to proliferation. But the resolution does not itself criminalize such activities, nor does it establish the robust jurisdictional and mutual assistance rules of the nuclear material treaties.

Security Council resolutions imposing sanctions on North Korea and Iran establish quasi-criminal penalties (asset freezes and travel bans) on any individual whom the Security Council, or the committees established by the Security Council to oversee implementation of the North Korea and Iran sanctions, “designates” as being engaged in, directly associated with or providing support for North Korea or Iran’s proliferation sensitive nuclear activities, including persons or entities acting on their behalf or at their direction. This formulation does cover both those involved in nuclear material trafficking and illicit procurement of nuclear commodities, as well as those directing such efforts. To date, however, virtually all those subjected to these sanctions have been North Korean and Iranian individuals (usually officials); very few individuals situated elsewhere who are involved in procurement efforts on behalf of these governments have been targeted. Moreover, the resolutions cover only North Korean and Iranian nuclear trafficking, not that by others.

The Guidelines of the 46-member Nuclear Suppliers Group (NSG) also fall short. The NSG is a voluntary international arrangement, whose members by consensus develop certain export licensing principles and lists of nuclear materials and commodities whose transfer is to be controlled. All members then adopt and implement these guidelines voluntarily. The guidelines do not establish trafficking as an offense, per se, stating only, “Suppliers should have in place legal measures to ensure the effective implementation of the Guidelines, including export licensing regulations, enforcement measures, and penalties for violations.” Nor do the Guidelines provide for any form of mutual legal assistance to enforce the parallel export control rules that all members are implementing.

What Are Some Options For Making Nuclear Trafficking an International Crime?

Ad Hoc Coalitions or Existing Groupings — It may be possible to reinforce the network of mutual legal assistance and extradition treaties for an ad hoc coalition or an existing grouping such as U.S. security partners or the NSG. For example, if a group included only parties to the Convention for the Suppression of Acts of Nuclear Terrorism, all members of the group could jointly agree to apply the robust mutual legal assistance and jurisdictional rules in that convention not only to nuclear material trafficking as the convention provides, but also to nuclear commodity trafficking.

Security Council — In addition, the Security Council could reinforce the international criminal law aspects of UNSCR 1540 by, in a new resolution, encouraging or requiring states to incorporate robust jurisdictional and mutual assistance rules in their laws criminalizing all types of nuclear smuggling. Or, the UNSCR 1540 Committee could perhaps issue an interpretation of the resolution to encourage this.

Rome Statute — Some have suggested amending the Rome Statute to extend the jurisdiction of the International Criminal Court to cover the most egregious acts of nuclear trafficking, such as providing a nuclear weapon or the ability to manufacture one to a non-state group or transferring particularly sensitive nuclear technology, such as a nuclear weapon design, to a non-nuclear-weapon state party to the Nuclear Nonproliferation Treaty.

Customary International Law — A final possibility would be to accelerate the evolution toward customary international law in this area. All of the international instruments noted above are moving toward greater participation. Both the Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material are gaining additional adherents and states’ implementation of UNSCR 1540 is steadily improving. As this web grows stronger, perhaps certain components will evolve to the point of becoming so generally applied, out of a sense of legal obligation, as to reach the level of customary international law, which would make them binding on all states.

Which of these routes towards making nuclear trafficking an international crime do you think it would make the most sense to pursue? Are there other feasible routes?

Thanks,

Professor Orde F. Kittrie, Sandra Day O’Connor College of Law, Arizona State University

Leonard “Sandy” Spector, Esq., Deputy Director, James Martin Center for Nonproliferation Studies

Threat of Prosecution Plays a Role in Libyan Defection

by Kevin Jon Heller

Critics of the Security Council’s decision to refer the situation in Libya to the ICC normally argue that the referral denies Gaddafi the option of going into exile instead of fighting to the death.  That may or may not be true — as I’ve noted previously, Max Boot’s reliance on Charles Taylor’s prosecution to make that argument fudges the actual history of Taylor’s abdication.  The criticism nevertheless overlooks one of the most important benefits of the ICC’s interest in a situation: the incentive it provides lower-level officials to abandon their regimes, lest they eventually end up in the dock alongside their beloved leaders.  Indeed, it seems that members of Gaddafi’s regime are already getting the message (emphasis added):

The United States said Thursday the defection of Libya’s foreign minister Mussa Kussa would provide critical intelligence about Moamer Kadhafi’s mental state and military plans.

As British officials debriefed Kussa after his flight to London late Wednesday, the White House also reiterated a senior official’s earlier assessment that his decision was a major blow to Kadhafi’s government.

[snip]

When asked if Feltman [the US’s assistant secretary for Near East affairs] encouraged Kussa to defect, Toner replied that Feltman made clear “our desire to see Kadhafi go and the fact that these …individuals, his regime, would be held accountable.”

He added: “Yes, in the sense that we made the argument that he was part of a regime that was going nowhere.”

When pressed on whether Feltman made the argument directly, Toner replied: “I believe Assistant Secretary Feltman said that.”

Although defecting does not guarantee that Kussa will avoid being prosecuted by the ICC, his willingness to provide useful intelligence to the UN-authorized forces will no doubt make him a lower-priority suspect.  The OTP has limited resources and can only prosecute a small number of suspects in any given situation; why prosecute someone who did the right thing and turned on Gaddafi? Indeed, if enough officials followed in Kussa’s footsteps, Gaddafi would have to fight to the death all by himself.

A Major Scandal at the Army Crime Lab

by Kevin Jon Heller

On paper, courts-martial are far more fair than military commissions — the substantive law they apply is superior, and their rules of evidence and procedure are designed to protect defendants, not ensure convictions.  Unfortunately, a recent McClatchy investigation indicates that literally hundreds of courts-martial might have relied on evidence that was unreliable and even fabricated by an unethical forensic scientist at the U.S. Army Criminal Investigation Laboratory:

For nearly three years, the military held the key to Roger House’s exoneration and didn’t tell him: A forensics examiner had botched a crucial lab test used in the Navy lieutenant’s court-martial.

In fact, the military had begun second-guessing a decade’s worth of tests conducted by its one-time star lab analyst, Phillip Mills.

Investigators discovered that Mills had cut corners and even falsified reports in one case. He found DNA where it didn’t exist, and failed to find it where it did. His mistakes may have let the guilty go free while the innocent, such as House, were convicted.

“It cost him his family and it cost him his Navy career,” House’s attorney, John Wells, said in an interview. “It’s certainly outrageous and unconscionable; it’s the kind of action that makes you want to scream.”

But the problem was bigger than just a lone analyst.

While a McClatchy investigation revealed that Mills’ mistakes undermined hundreds of criminal cases brought against military personnel, it also found that the U.S. Army Criminal Investigation Laboratory, near Atlanta, was lax in supervising Mills, slow to re-examine his work and slipshod about informing defendants. Officials appeared intent on containing the scandal that threatened to discredit the military’s most important forensics facility, which handles more than 3,000 criminal cases a year.

The military has never publicly acknowledged the extent of Mills’ mistakes nor the lab’s culpability. McClatchy pieced together the untold story by conducting dozens of interviews and reviewing internal investigations, transcripts and other documents.

The McClatchy investigation shows:

  • Mills made many mistakes. In an extensive review of his work, lab officials disagreed with his DNA results 55 percent of the time in cases they could retest. Law enforcement officials, following military policy at the time, had destroyed evidence in 83 percent of Mills’ cases before it could be retested. Those 388 cases include rape and other serious crimes.
  • Military officials tried to avert a public scandal and protect criminal cases from outside legal attack, in part by keeping their inquiry of Mills in-house. The lab was supposed to alert a prosecutor about its final investigation in 2008, but he says he was never notified.
  • Even today, more than two years after the lab’s review was completed, some defendants remain in the dark. Mills’ supervisor also impeded the lab’s investigation by failing to produce evidence, adding to delays that hurt military defendants, who faced strictly enforced appeal deadlines.
  • It’s bad enough that the Criminal Investigation Laboratory employed someone so incompetent and unethical.  As is often the case, however, the cover-up is worse than the crime — the Army knew that there were problems with Mills’ work as early as 2002, yet did nothing to rein him in…