The NSA may be collecting data on Americans in the United States. What about Americans abroad?

“Foreign intelligence” is a term threaded through the surveillance debate, with a general understanding that collecting that kind of information is okay. The term is defined in a territorial sense, in the sense of intelligence originating outside of the United States. Under the FISA Amendments Act, the Attorney General and the NDI are required to adopt “targeting procedures that are reasonably designed to ensure that any [intelligence acquisition] is limited to targeting persons reasonably believed to be located outside the United States.”

If intelligence is “foreign” in that sense, the gloves seem to come off. (We’re talking not just metadata, but the contents of emails and other electronic communications, the kind of stuff which in the ordinary case clearly requires probable cause.) The FISA Amendments Act does bar “intentionally target[ing] a United States person reasonably believed to be located outside the United States.” But there doesn’t seem to be any mechanism to police that constraint or the citizenship determination (or at least not any mechanism that has been publicly disclosed).

If on the internet it’s difficult to draw the domestic/foreign line in territorial terms, it’s only more so in terms of citizenship. The surveillance is all secret, so there’s no chance to declare yourself an American. There’s really no way for the Government to know whether you are a citizen or not. There is no master list of US citizens. For every John Smith Bank of America employee temporarily in London (who might be easily flagged as a US citizen), there are many who have acquired citizenship in less obvious ways and who don’t wear their American identity on their electronic sleeve. Does the NSA have a citizenship algorithm?

This may be as much a problem with the doctrine as with the practice. Under the conventional reading of the Supreme Court’s 1958 decision in Reid v. Covert, constitutional rights are portable to US citizens. If you’re American, you have the same rights against governmental action in Paris as you do in Detroit. But even in the non-virtual world, it’s tough to know the citizenship status of people behind foreign doors you are about to knock down. There’s no evidence that anyone in the intelligence apparatus is even trying to stay true to the constitutional rule. Perhaps yet another reason for several million expatriate Americans to feel second class.

Here’s the official explanation: the US had yet to “satisfactorily complete” the “process of conforming the official translations” of the agreement. Via Twitter, FP’s David Bosco sees a back-up excuse once the analysts at State finish reading the French version:

US delays signing arms trade treaty as experts verify that no provisions were written in invisible ink.

Bosco is almost certainly on the money predicting that when the US does sign on, it will be late on a Friday afternoon in summer.

I don’t understand this. The treaty wouldn’t require any changes in US law, much less trample on any Second Amendment rights. Can’t the Administration stand up to the NRA on this front, at least for the purely symbolic exercise of the treaty signing?

If Obama wanted to put his recently aggressive interpretations of executive branch power to work, he might even think of acceding to the convention as a sole executive agreement. (Before you laugh, remember that he has that in mind for the more consequential Anti-Counterfeiting Agreement, as Oona Hathaway describes here.) The US absence yesterday at the UN bodes ill for any second-term progress on any of the human rights treaty fronts.

Here’s the text of the agreement described in reports in the NY Times and elsewhere today. It’s the most significant institutional response to the massive loss of life (now above a thousand dead) in the April Bangladesh factory collapse.

This may be a signal episode in the continuing evolution of global corporate regulation. Formally styled as the “Accord on Fire and Building Safety in Bangladesh,” the agreement is being executed by trade unions and corporations. It establishes a standing Steering Committee (three seats for unions and corporations each, one for a designee of the International Labour Organization) to police the agreement, which requires companies to undertake the inspection of Bangladesh supplier facilities and remediation as necessary. It also sets up a worker complaint mechanism, with binding arbitration under the New York Convention. NGOs appear to have some participatory standing as “witnesses” to the agreement.

H&M, Tesco, C&A, and Calvin Klein, among others, are on board. There is a midnight May 15 deadline – countdown and latest developments can be found at the UNI Global Union site. There has to be a lot of pressure on the big apparel manufacturers to sign on.

The template: a legal agreement between non-state parties facilitated and nominally hosted by an international organization. No governments involved, at least not as parties to the agreement. If it works, look for more of the same in other contexts. The ILO ‘s profile will surely rise in the face of this episode and the growing global awareness of worker rights issues.

When I was writing my book on citizenship several years ago, I wanted to take on what I thought was a standard trope of American political discourse: “the rights and obligations of citizenship.” Though it hardly seemed like an alien phrase, I had trouble finding good examples of its use by major political leaders.

I won’t have that problem any more.

President Obama is now turning to “citizenship” almost like a drum beat. He played a citizenship theme in his Convention acceptance speech in September, his second inaugural inaugural address in January, and the State of the Union in February. He returned to citizenship in perhaps the biggest way yet in his commencement speech at Ohio State this past Sunday. The speech highlighted all the great things that graduates would go forth and do (work for the Peace Corps, start companies, “otherwise realize your vision”):

There is a word for this. It’s citizenship. And we don’t always talk about this idea much these days — citizenship — let alone celebrate it. Sometimes, we see it as a virtue from another time, a distant past, one that’s slipping from a society that celebrates individual ambition above all else; a society awash in instant technology that empowers us to leverage our skills and talents like never before, but just as easily allows us to retreat from the world  And the result is that we sometimes forget the larger bonds we share as one American family.

With citizenship as the rallying call, he exhorted the graduates to educate more children, build better roads, work to confront climate change, protect kids from gun violence, etc. “[T]hat’s what citizenship is. It’s at the heart of our founding — that as Americans, we are blessed with God-given talents and inalienable rights, but with those rights come responsibilities — to ourselves, and to one another, and to future generations.”

Am I the only one picking up on the theme? Obama makes clear that he intends more than a throwaway use of the term:

I’ve been thinking a lot lately about how we can keep this idea of citizenship in its fullest sense alive at the national level — not just on Election Day, not just in times of tragedy, but all the days in between. And perhaps because I spend a lot of time in Washington, I’m obsessed with this issue because that sense of citizenship is so sorely needed there.

Sounds pretty personal. But I have yet to see even an op-ed piece which lands on citizenship as an emerging focal point for this Adminsitration.

Maybe that’s because he doesn’t have a lot to work with. Certainly not in Washington. But maybe not even with youngsters on college campuses. At least 10% of students at OSU Obama addressed yesterday aren’t citizens at all, or at least not American citizens. His invocation (for example) of “a deep devotion to this country that we love” couldn’t really work for them. The orientation starts to seem a little anachronistic to the extent that an audience consisting solely of Americans alone is an increasingly rare phenomenon. The group is no longer clearly bounded. For that and other reasons, what might in some other time have worked as “The New Citizenship” is unlikely to fly today.

Ted Cruz is running for president, and an election-addled media is training its sights on his nascent candidacy in the absence of many alternatives this early in the cycle.

His birth outside the United States is inevitably raising the eligibility question. Cruz was born in Calgary to a US-citizen mother and a non-citizen father. Under section 301(g) of the Nationality Act, his mother had satisfied the requisite residency period for citizenship to descend by parentage. Ted Cruz was a citizen at birth.

That pretty clears works to satisfy the requirement that the President be a “natural born” citizen. Some argue that “natural born” means born within the territory of the United States – ie, a citizen under the Fourteenth Amendment. But John McCain’s candidacy put that line to rest, since Canal Zone-born McCain had citizenship only by statute (it’s not even clear that he had it at birth, as Jack Chin nicely argued here). Nobody seriously asserted his ineligibility. George Romney’s 1968 run supplies a less well-developed precedent, Romney having been born in Mexico to US-citizen parents.

That doesn’t mean we won’t get some birthers coming out of the woodwork, though they’ll probably be of the left-wing, tongue-in-cheek variety (see 4:30 in this Jon Stewart takedown, for example). Tea Party chickens may come home to roost as their claims of Obama’s ineligibility (including by virtue of his non-citizen father, not just his imaginary birth in Kenya) are turned back against them. But it would be too against-type for Democrats to press the line aggressively vis-a-vis Cruz (who, by the way, probably counts as a Canadian citizen as well as an American one).

That doesn’t mean we won’t get closer cases in the future (say, involving an adopted foreign-born child) or a strong candidate who was naturalized and thus not “natural born” under any possible interpretation. As post-globalization generations mature, better just to get rid of the requirement altogether.

Columbia University historian Samuel Moyn has a tough post up on the Foreign Affairs website on Kiobel and the arc of the Alien Tort Statute, which he sees as having served the narrow constituency of us rather than being true to the historical origins of human rights:

The ATS has been a boon for U.S. law schools, in which students rightly interested in saving the world have been taught to view the statute as an all-powerful tool. But the popularity of the law might have led them to neglect the fact that it offers only a quick fix for a few people with access to U.S. courts, not fundamental change.

The takeaway, with which I’m sympathetic: human rights advocates would be better served to abandon the ATS, even to the extent that Kiobel leaves the door open.

Far better would be to move on to other ways of protecting human rights — less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. If it moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble.

I’m sure there will be room for both paths, that is, for some to keep at it with the ATS while others look to put non-judicial mechanisms better to work. But one takeaway for US law schools would be to give a little more play to the latter. Pressing corporate social responsibility norms may not lend itself to the same sort of sexy clinical offerings as the ATS, but it may be better preparation for today’s real world of human rights practice.

Probably not. The tragedy in Bangladesh — more than 400 dead — on the heels of a fire there in November, is no doubt casting a negative light on non-governmental certification schemes.

But there’s no clear alternative. Voluntary codes of conduct are now routinely subject to institutionalized third party supply-chain monitoring (evidenced by the fact that a number of monitoring firms are themselves publicly traded companies). Obviously, the system is coming up short, as critics vigorously note (see, for instance, this labor-funded study released last month). Many are pushing for something that looks more like public regulation. In that view, the recent Bangladesh episodes look like the global equivalent of the Triangle Shirtwaist fire in 1911, which ushered in the modern era of workplace safety regulation in the United States.

That’s not the the way it’s going to play out, at least not for now. The capacity just isn’t there, either nationally or globally, to fully legalize labor rights. But there are new approaches mixing private-public components that are gaining traction. The most notable example, at the global level, is the UN Guiding Principles on Business and Human Rights. That may set a long-term baseline from which to refine labor rights and other norms into workable practices on the ground. In an interesting (and well-timed) essay in the Boston Review, MIT’s Richard Locke sees promise in regulation by host governments, even in the developing world. Public regulators can overcome capacity deficits by taking a more measured, strategic approach, using carrots to create conditions (e.g., transparency) that improve the effectiveness of private schemes. In the end, only the state can create the level playing field necessary to their success.

The result is some form of polycentric governance, for what that’s worth. The Bangladesh tragedy is training unprecedented attention on the question of how better to hold corporations to human rights norms, defining it as one of the major issues of globalization. It may be, as John Ruggie says of the Guiding Principles, the end of the beginning.  But even the basic outlines of a durable solution still seem over the horizon, and a lot of institutional mapping and empirical study remains to be done.

This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit’s rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer’s concurrence — the rejection of the claim was unanimous, which must make it hurt a little more — sets a bar of a “distinctly American interest”, which may translate in the days of compartmentalized multinationals to the presence of US citizen victims. Lots of claims are going to get thrown out in Kiobel’s wake.

Does this mean that corporations can turn a blind eye to human rights? Not a chance.

Human rights is now a core component of corporate social responsibility, which, at least among major transnational corporations, is no longer optional. The United Nations is moving to bring human rights directly to bear on corporations through such initiatives as the U.N. Global Compact and the Guiding Principles on Business and Human Rights (see John Ruggie’s important new book on the latter). Accountants, shareholders, NGOs, and other private standard-setters are increasingly vigilant to human rights compliance (think Apple and Foxconn to highlight only one recent example). Human rights is being internalized in the corporate psyche, a process not contingent on the survival of the ATS.

There may even be alternative legal avenues. State tort law presents some promising possibilities. Kent Greenfield suggests reviving corporate “ultra vires” doctrine as another possible entry point for human rights. The ATS helped police and facilitate corporate compliance with international law, but other forms of discipline will work to help fill the gap created by its eclipse.

It should be no surprise that there is an amicus brief in support of striking down the Defense of Marriage Act from a global angle, charting an international trend towards recognition of same-sex marriages. (The brief is on behalf of a select lawprof group – Harold Koh, Sarah Cleveland, Larry Helfer, and Ryan Goodman, part of a trend toward elite, small-list amici filings also evident here and here.) The brief skillfully plays to the Court’s self-interest and the opportunity to enhance its international prestige: “Courts in other countries have invoked this Court’s reasoning in Lawrence, for example, to strike down laws that impinge upon the intimate relations between gay and lesbian couples. The Court’s ruling in this case is likely to have similar influence.” That’s a line that might appeal to a certain swing Justice.

At the same time, there’s no hint in the brief that international law requires the recognition of gay marriage, an argument that would be hard to make. The brief does no overreaching, well advised in the face of serious blowback to the Court’s recent invocations of international law on the way to progressive results. The caution starts with the cover page: the brief is filed on behalf of “foreign and comparative law experts,” not international law ones.

Leave the international law argument to . . . Jeremy Rabkin?

Rabkin and a group of mostly European academics and former jurists have filed a brief in support of California’s decision (through the ballot measure Proposition 8) to reserve marriage for opposite-sex couples. The basic argument: most countries have left the question to democratic processes, which “national and international courts have overwhelmingly refused to trump.” That fact establishes, the brief argues, that there are “rational, non-invidious reasons based in secular public policy considerations” for a jurisdiction’s refusal to recognize same-sex marriage. Variation on the question is fully compatible with “international norms.” [My quotation marks, not theirs!]

The brief carefully qualifies the salience of international practice. “Of course, foreign law and practice cannot and should not determine the meaning of U.S. Constitutional guarantees.” But that practice apparently stands as an empirical resource, a “lesson,” at least.

In the end, I suspect the Court will ignore foreign and international practice in the Windsor and Perry decisions, consistent with its recent posture to things foreign. But the gay marriage cases might mark an important turning point on this particular front of the Culture Wars. With their brief, conservatives may have conceded the threshold salience of international practices. The door can’t be completely shut on this material, whether the Court expressly acknowledges it or not. Once they’ve played the international law card themselves, conservatives can hardly cry foul next time it’s played against them. (Rabkin himself will have to lose the label “fantasy world“ when speaking of international law.) Perhaps conservatives have come to understand that they can win on this turf, too. (Check out Justice Scalia’s dissent in Roper for pointers.) The bottom line: global practice becomes more deeply entrenched in the everyday of American constitutional law.

OJ’s own Duncan Hollis has been awarded the American Society of International Law’s “Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars” for his edited volume The Oxford Guide to Treaties. (Other honorees this year are Jeremy Waldron and Petros C. Mavroidis.) From the citation:

The Oxford Guide to Treaties brings clarity to a topic of central importance to policymakers, practicing attorneys, and a wide range of academics. Comprehensive in its scope, and equally valuable both to those coming to treaties for the first time and to those who have spent many years poring over texts, the Oxford Guide provides the reader with detailed explanations of the key rules and issues that mark contemporary international treaty law and practice. With contributions from leading scholars and practitioners, and expertly edited, the Oxford Guide will serve as the authoritative reference volume in this field for years to come.

We had a roundtable on the book on the blog last November. Congratulations to Duncan, very well deserved!

Is there a private right of action under the Hague Convention on the Civil Aspects of International Child Abduction? The Fourth Circuit said no in 2006, the Second Circuit now says yes, in an opinion released on Monday (the case is Ozaltin v. Ozaltin; Reuters recap here).  Sounds like SCOTUS will have to take the question. Attention student note writers!

This may be a matter of small-bore treaty interpretation — how to apply implementing legislation in light of the treaty text, particulars good for this train and time only. But one might wonder if recent history makes it a little more freighted than that, after the Court skipped around the private-rights issue through the VCCR litigation in Sanchez-Llamas and Medellin. Could this be yet another vehicle for the Court in its campaign to obstruct the insinuation of international law?

From the closing of last night’s State of the Union:

We may do different jobs, and wear different uniforms, and hold different views than the person beside us. But as Americans, we all share the same proud title:

We are citizens. It’s a word that doesn’t just describe our nationality or legal status. It describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations; that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter in our American story.

This now qualifies as a refrain, in the DNC acceptance speech, the second inaugural, and now this. Has Obama arrived at a theme for his second term?

Let’s call it the New Citizenship.

Great stuff, if anyone were buying. But there isn’t enough solidarity on the ground for even so thoughtful and impassioned an exponent as Obama to pull this off. Americans are migrating away from this sense of mutuality (at least specially with other Americans), and no leader is going to be able to reverse the trend. That may be too bad, but that’s probably just the way it is.