It is becoming increasingly clear that the Registry made no attempt to comply with the Appeals Chamber's decision in Seselj. I have now learned that the Registry arranged for Dr. Karadzic to meet with five defence barristers, including Mr. Harvey. Dr. Karadzic was then given a deadline to choose one. Instead, citing Seselj, Dr. Karadzic asked for a copy of...
James Comey and Jack Goldsmith provide here the best (although not completely convincing) defense of the decision to try KSM in New York. I agree that the most defensible explanation is that military commissions remain constitutionally vulnerable, hence it makes sense to use the civilian courts for your most important cases. I don't quite buy this, but I think this...
When I critique the US's refusal to join the ICC in my international criminal law class, I make sure to emphasize not only that the US has traditionally played a very positive role in ICL -- from Nuremberg to the SCSL -- but also that the Rome Statute would be considerably worse but for the input of the American representatives...
OK, so France wins on a bad call by a referee. And people in Ireland are mad. And the Irish Prime Minister even brought it up with French President Sarkozy at a recent EU meeting. But nothing quite captures the importance of soccer and the World Cup then riots, clashes, and the recall of ambassadors after Egypt defeated Algeria in...
The ICTY has appointed Richard Harvey, a barrister with Garden Court Chambers in London, to serve as Dr. Karadzic's stand-by counsel. There is no question that Mr. Harvey is more than qualified for the position: in addition to defending a number of individuals accused of terrorism-related offences in the UK, Mr. Harvey has served as the lead counsel in one...
I haven't irritated OJ purists by blogging about (international) sports for a while, so I think it's only appropriate to point out that, for the second time in two years, the French have stayed alive in a World Cup only by the grace of pathetic officiating. The most recent outrage comes courtesy of soccer (being American, I refuse to call...
To continue with our earlier postings on issues of interest in the Draft Articles on the Responsibility of International Organizations – a subject of current debate involves countermeasures. Countermeasures can be defined as actions (reprisals) taken to respond to a prior negative action that would violate international law but for the prior wrong. Countermeasures are to...
One of the remarkable differences between the Obama Administration and the Bush Administration in terms of international litigation is the utter silence of this State Department in filing amicus briefs and/or statements of interest. I know that Harold Koh has only been Legal Adviser since June and Sarah Cleveland has only been Counselor on International Law since September, but...
[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law, and is also a former prosecutor. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or...
This story from the New York Times about the corruption of Teodoro Obiang certainly hits close to home. His $35 million dollar estate in Malibu is just down the hill from Pepperdine. Several times a year, Teodoro Nguema Obiang arrives at the doorstep of the United States from his home in Equatorial Guinea, on his way to his...
I am forwarding this call for papers from Tim Waters at Indiana to be presented at a forthcoming conference on the Milosevic trial. Looks like a great event. The Indiana University Maurer School of Law, Russian and East European Institute and Center for West European Studies announce a major conference in Bloomington, Indiana on February 18-21, 2010. The conference...
One of the contributing authors of the failed executive unilateralism criticizes the Obama Adminstration’s decision to prosecute KSM in New York because “The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism.” Criminal trials must be very harmful activities if they will “cripple” U.S. anti-terrorism efforts. How will they do that? Writing in the WSJ, John Yoo argues: “Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown.” The openness required by criminal trials is the purported harm. Why would this prosecution be any more harmful that the prosecution of Jose Padilla or Zacharias Moussaoui, for example, or Ahmad Omar Abu Ali for that matter? The criticism repeats as its primary evidence of harm an unsubstantiated claim regarding intelligence losses that occurred because of the prosecution of Sheikh Omar Abdel Rahman for the 1993 World Trade Center bombing. No doubt, care will have to be taken in how the U.S. prosecutes its case, but the alarmist claim that anti-terrorism will be “crippled” belies credibility. This issue, however, is not the only one Yoo raises, and not the one that primarily interests me.
He further claims: “Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights?” He then asks a series of additional questions about pre-trial procedure in a “war zone.” As bad as revealing U.S. intelligence sources may be, “even more harmful” would be the requirement that U.S. officials recognize that terrorism suspects have rights, such as the right to be free from coerced (tortured) confession. Focusing on Miranda is telling, since Yoo was instrumental in providing the legal authorization for U.S. torture practices. Here we get at the heart of the “war versus crime” dichotomy motivating critics like Yoo: “KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens. …” Or, any person within the jurisdiction of the U.S., an important point Yoo still fails to recognize. The “war on terror” was said by Alberto Gonzales to be a “new kind of war” rendering “quaint” some of the rights afforded by the Geneva conventions. This temperament carries over to hostility to granting terrorism suspects constitutional rights in criminal trials, but fails to articulate how adherence to constitutional and human rights norms can themselves be “even more harmful to our national security.” How is it even remotely plausible to claim that if U.S. personnel must conduct themselves in rough conformity to constitutional (and by implication, human rights) norms, even greater harm to our national security will occur? In making this claim, Yoo reveals that one motivation for the "new kind of war" model is the attempt to free U.S. officials from certain constitutional and human rights constraints. Freedom from legal constraint may have its pragmatic advantages, at least in the short run. This mistaken view is one reason executive unilateralism has led in the long run to an ad hoc detention policy, repaired in part only after the Supreme Court held that detainees were in fact protected by Geneva and were in fact entitled to U.S. court jurisdiction.
Untethered from an institutionally unrealizable executive unilateralism, there does not seem to be much purpose in reasserting a need for officials to act free from constitutional and human rights constraints. So why do we see this view reappear as a reason why criminal trials of terrorists cause “even more harm” to national security?
