The Nuremberg defense pops up in the strangest places. As the NFL fans among our readers know, Commissioner Roger Goodell has suspended four New Orleans Saints players for their role in Bountygate — a program whereby Saints players would get financial bonuses for intentionally injuring other players on the football field, essentially the most heinous crime a football player can commit. What is most remarkable about the reaction from sportswriters to the unprecedented suspensions is how many almost reflexively invoke the Nuremberg defense in order to minimize the players’ culpability. Here, for example, is Mark Kreidler at ESPN.com…
Archive of posts for category
I’m just back from the U.S. Naval Academy and a great conference put on by the Stockdale Center for Ethical Leadership: Warfare in a New Domain: The Ethics of Military Cyber Operations. Ed Barrett pulled together a truly impressive group of technologists, international lawyers, philosophers, ethicists, active duty military personnel and US Government officials to weigh in on existing cyberthreats and the appropriate legal and ethical frameworks for responding to them. I may blog more of the details later, but here are three quick take-aways from our two day conversation:
1) Cyber is hot. When I first started writing in this area, I frequently had to fend off charges that this was just fodder for international lawyers who happened to like science fiction. We’ve come a long way since those days. Cybersecurity is front and center in Congress, and cyberthreats and cyber-capacities have moved into the front seat in national security circles. Although I’m not sure everyone agrees with the cyber-arms race idea, it is true that the technological capacity is on a steep upward trajectory and the actors involved are constantly expanding (I’m told, for example, that Zimbabwe is the latest in a long list of States to get together its own cyberforce).
2) We don’t agree on why cyber is hot. Over the course of the conference, there were dissonant voices on what the cyberthreat really is. First, there’s what we might call the “Digital Pearl Harbor” crowd — folks worried about, and looking to head off, a massive, large-scale cyberattack with significant effects on the civilian populace (think — shutting down the U.S. power grid). A related view, are those clearly worried about how nation States will deploy cyber in armed conflicts, and what methods exist to deter escalation to such conflicts. In contrast, there is a growing, and vocal group, who say that to focus on cyberwar or the most dangerous cyberthreats is to ignore the real problem — China. This is the ”China’s eating our lunch” crowd, who blame cyberespionage by China and its proxies for the theft of petabytes of data, including intellectual property, business plans, R&D, etc from the private sector in what some call the greatest wealth transfer in history. Finally, there are those who view the cyberthreat as more diffuse, although perhaps no less dangerous. This view may best be summarized by the idea of a “death by thousand cuts”; that is, we shouldn’t expect drama in cyberspace so much as low-level but systemic attacks and threats that in the aggregate may significantly impact the United States as a nation.
3) We don’t know how law should deal with State cyber operations. For starters, we are seeing (just as we have in the terrorism context) claims that lawyers and law are getting in the way; that States need to operate in this new environment without rules. For those of you who’ve not seen it, I recommend this recent exchange between Stewart Baker and Charlie Dunlap on the relative merits (and demerits) of this idea.
Then, even among those willing to concede a role for law and lawyers, there are significant differences of opinion on the relevant legal frameworks. The US and like-minded States have taken the position that the Law of Armed Conflict (LOAC) can apply in cyberspace; Russia agrees, but insists other new norms must be applied to limit “information” that is destabilizing as well. For its part though, China says they’re not sure the LOAC has any role to play at all, leaving the issue to law enforcement or organizations like the ITU.
Finally, even on the more specific legal and ethical issues that formed the core of the McCain Conference this year — namely military cyber operations — it seems we’re still trying to figure out how to analogize existing rules into cyberspace. We’ve been doing that for some time now, but I must say I’m surprised to see how little progress has occurred. For example, I was struck by how many reasonable people disagreed on the question of whether Stuxnet constituted a use of force or an armed attack.
Which brings me to my last point, and one that was quite contested at this conference — whether there is a gap between a prohibited use of force under UN Charter Article 2(4) and an armed attack sufficient to trigger an Article 51 right of self-defense. Although I’d always understood that simply because something constituted a use of force, that didn’t mean that it rose to the level of an armed attack for self-defense purposes. In other words, there is a gap between armed attack and force. But at least one US government lawyer suggested at this conference that there is no such gap in cyberspace, and that this may even be the official US Government position for cyberspace. I’d be interested in what readers make of this position, both as to the original kinetic understanding of the relationship between Article 2(4) and 51 and how it translates to cyber. Simply put, are all uses of force in cyberspace armed attacks?
[The following is a guest post by Dan Joyner, Professor of Law at the University of Alabama. Our thanks to him for contributing it.]
So, as you probably guessed from the title of this post, it’s going to be a bit of a rant. But this has been festering inside me for the past five years and I want to get it out. I’m on a plane right now flying back from the U.S. Midwest Regional of the Jessup International Law Moot Court competition in Chicago with my team. I’ve been the faculty advisor for the Jessup team at Alabama for the past five years. During that time, my team has competed in Miami, Houston, and Chicago, as well as in the international rounds in D.C. I’ve gone with my team every year to each one of these venues. So I’ve seen a lot of the Jessup process, in a number of different venues in the U.S., and I’ve put in A LOT of my own time coaching my team and travelling with them. And here I mean A LOT of my own time. Many, many hours advising them as they research their memorials, then three to four per week oralist round practice sessions in the lead up to the regional.
I have noticed over the years that, at least at the regional locations we’ve been in, not many of my international law faculty colleagues have accompanied their teams as I have done. Some have, to be sure. But more often than not, their students are either there by themselves, or they are accompanied by a non-faculty team coach. And in my anecdotal conversations with students from other schools’ teams, it is usually the case that they have not been coached seriously by the international law faculty members at their law school. I now think that these faculty colleagues in international law at other schools have been much wiser than I have in this regard.
I have learned over the past five years through sorely frustrating experience that the Jessup competition is not in fact an international law moot court competition, notwithstanding this being stated in its name. This is, in fact, simply false advertising for the competition. In reality, Jessup is just another law student moot court competition in which style trumps substance, and where good used car salesmen typically come out on top. As such, the Jessup competition is simply not worth any serious investment of time by those of us who actually care about the substance, rigor and correctness of international legal analysis and argumentation. Frankly, sometimes I think my students could be citing to sources of Kryptonian law, and if they did so confidently and persuasively, they would be just as well off.
The clearest evidence for this conclusion is that if, counterfactually, the Jessup competition was in fact about international law, then it would be staffed by memorial and oralist round judges who themselves had a decent knowledge of international law. In my experience at all of the regional rounds in the U.S. at which my team has participated over the past five years, this has definitely not been the case…
In the comments to my previous post, I described refusing to allow comments on a blog as an “act of cowardice.” Ben Wittes, one of the contributors to Lawfare, a blog that does not allow comments as a matter of policy, doesn’t appreciate the description:
Anyone who wants to understand why Lawfare does not take comments need only take a brief look at this comment thread over at Opinio Juris blasting Lawfare–and others–for not taking comments. As the old saying goes, the thing speaks for itself.
I’ll leave it to readers to decide whether our comments policy is, as Kevin Jon Heller puts it, “an act of cowardice” or whether it is, as I like to think of it, what we used to call in the news business editorial judgment. But it certainly is, as Benjamin G. Davis puts it, “a control mechanism,” an effort at “total control of whom [sic] can post.” We run this blog to provide useful information and to express our views, not to operate a free-for-all for anyone who fashions himself as having something to say. Anyone who wants to comment should feel free to send an email, which we often post, or to post to our Facebook page. Or, in the alternative, it seems that you can post comments about Lawfare on Opinio Juris. Or, if you really feel strongly about it, you can start your own blog.
The offending comment thread to which Ben refers consists of precisely three comments addressing the issue at hand. The first criticized closing comments on an Opinio Juris post, not a Lawfare post. The second was mine, making the aforementioned claim. And the third was an extremely reasoned critique of blogs that do not allow comments — and of the exclusionary nature of the national-security-law world in general. That’s it.
I continue to believe that refusing to allow comments on a blog is indefensible — just as I believe that it is indefensible to comment on a blog anonymously (except in situations where one’s job could be threatened). Ben describes Lawfare’s no-comment policy as “editorial judgment.” It seems to me that the only editorial judgment involved is that no one other than the contributors to Lawfare — and those whose emails Lawfare deigns to post — have anything of value to say. Indeed, the elitism drips from Ben’s post; just consider his claim that to allow comments on Lawfare would be “to operate a free-for-all for anyone who fashions himself as having something to say.” How dare readers have the temerity to think they’re good enough to respond to Ben — on Lawfare, no less!
As a blogger who is prone to strong opinions, I am the first to admit that reading comments can be a painful experience. I have been accused of being anti-Semitic; of being a self-hating Jew; of not believing that Israel has a right to exist; of being anti-American; of being a communist; and so on. I’ve also had my mistakes pointed out to me more than once. But that is simply the price I pay for being something of a public intellectual. Blogs are not, as Ben assumes, simply fora for “experts” to make themselves heard — the online equivalent of the New York Times editorial page (which Ben never tires of attacking). They are places for discussion and debate, where some voices may be more important than others but no voice is excluded. Are bloggers obligated to allow comments? Of course not. But let’s not pretend that refusing to allow them is some kind of noble act designed to ensure the integrity of academic debate.
UPDATE: In light of Marko’s comment below (!), I have changed my mind about whether a no-comment policy is cowardly. It certainly can be, and I suspect that most bloggers who refuse comments are simply afraid of criticism. But it is not necessarily cowardly; it may simply reflect the blogger’s belief, so well expressed in Ben’s post, that the unwashed masses have nothing useful to contribute to discussion of complicated legal issues. Frankly, I think that kind of elitism is worse than cowardice.
UPDATE 2: Ben responds — sort of — at Lawfare. There isn’t much more that needs to be said on the issue; Ben is absolutely right that he and his colleagues are in no way “under some obligation to design this forum to Heller’s specifications.” They are well within their rights to run a blog without comments, just as I am within my rights to criticize them for doing so. (And in my humble opinion, describing a blog that doesn’t take comments as a “forum” seems like a stretch.)
For the record, I am delighted that my friend Steve Vladeck has joined Lawfare as a permanent contributor. Though no substitute for genuine openness, the ideological diversity that Steve brings to the blog is welcome, and the invitation to him to join speaks well of Ben and the others.
I’m looking forward to our joint symposium on Marko’s impressive book on extraterritorial treaty application. But before that begins, I wanted to flag a new opportunity for those looking to get international experience outside the United States. The Fulbright Program is inaugurating a new ‘Public Policy Fellowship’ for academic year 2012-2013. Here’s how they described it to me:
The Fulbright Public Policy Fellowship will allow fellows to serve in professional placements in foreign government ministries or institutions and gain hands-on public sector experience in participating foreign countries while simultaneously carrying out an academic research/study project. Fulbright Public Policy Fellowships will be offered in the following countries:
- Cote d’Ivoire
- Dominican Republic
U.S. Embassies, Fulbright Commissions (where applicable), and host country governments will coordinate appropriate professional placements for candidates in public policy areas including, but not limited to, public health, education, agriculture, justice, energy, environment, public finance, economic development, information technology, and communications.
Candidates must be in receipt of a master’s or J.D. degree by the beginning of the Fellowship (Summer – Fall 2012) or be currently enrolled in a Ph.D. program. Applicants must also have at least two years of work experience in public policy-related fields.
The Application for the Fulbright Public Policy Fellowship opened on November 4, 2011. Applicants must complete and submit the Fulbright U.S. Student Application including the supplemental Fulbright Public Policy Fellowship section by February 1, 2012. Departure for assignments will begin in Summer – Fall 2012.
To access an application go here.
Many of you have probably seen the reviews of John Lewis Gaddis’ new biography, George F. Kennan: An American Life. John Gaddis was one of my mentors in college and graduate school, and I have really enjoyed seeing what I know to have been a labor of love reviewed so favorably. Congratulations John!
Kennan, the man primarily known as the author of the U.S.’s Cold War “Containment” strategy, is a fascinating figure and he and his work could be the focus of any number of interesting international law conversations. A quick search within Westlaw’s JLR database yields 394 citations to George Kennan, 132 specifically to his book, American Diplomacy (admittedly, at least one of those is mine).
To start with, one could talk about his signature policy. What were the international law implications of a containment policy that divided the word into two separate spheres? In what ways was international law mobilized as an instrument of that policy? To what extent were jurisprudential schools/approaches shaped by realities of containment? In current terms, our containment policies have taken on an increasingly legal cast, whether in the form of UN sanctioned sanctions, no-fly zones, inspection regimes, or interdiction on the high seas or by using conditional membership in regimes and clubs as a carrot and stick. How well have these tactics been working? Perhaps the time has come to reassess Kennan’s signature idea.
We could also talk about Kennan’s complex realism and his well-known critique of “the legalist-moralist approach” in American foreign policy. We could take it on its own terms: How valid was his critique? Looking at the conflicts of the moment, was he right that moralism in international affairs only makes conflicts worse? Or we could probe the critique, asking how well Kennan understood international law and whether his views, when fully understood, may actually suggest more of a role for international law than might be apparent from his rhetoric. Kennan’s realism was complex and conflicted; he had faith that the West’s ideas would triumph eventually and lamented policymakers’ over-reliance on military tools. We could also look at Kennan in his intellectual-historical context, looking at how he reflected and helped steer developing American understandings of international law (a particular interest of mine.)
But in reading the reviews of Gaddis’ book (I admit that I have not yet read the book. Cut me some slack! It came out last week.), the thing that stood out was his personal story, one Henry Kissinger refers to in his New York Times review as “a kind of tragedy.” Kennan was most definitely not an international lawyer, but his difficulties navigating the foreign policy establishment sound familiar. Certainly, Kennan’s ambivalence about the morality of a policy of nuclear deterrence based on the threatened destruction of humanity is recognizable to international lawyers. More broadly though, Kennan’s tragedy was to have always been stuck on the outskirts of foreign policy making. Kennan was the policy architect, trying to create rules for a new chaotic game of diplomacy. And it was his attachment to principle that frustrated his State Department bosses and got him fired from the few key positions he attained. Kennan was too much the intellectual, too much the philosopher, to fully adapt to the hypocrisy of diplomacy, and yet he too struggled to find balance between idealism and its exceptions.
Repeatedly Kennan would retreat to the groves of academe to escape the ulcer-inducing agonies of rejection; yet he would wait by the phone or shamelessly call to offer his services whenever a new president entered office.
Hopefully, we don’t all share Kennan’s ego, but I can’t help wondering if Kennan’s plight is our own, to be right at the outskirts of power – at our best, highly influential as architects or critics, but too constrained by our professional norms and training, our propensity to make things simultaneously too simple and too complicated, to be in the driver seat of policy for long. I’m curious what others think?
Anyway, I for one am looking forward to reading the book.
Please forgive the fact that this post has nothing to do with international law, but it’s something very personal and very important to me. As Jonathan Adler noted today at Volokh Conspiracy, the California Supreme Court will soon decide whether Stephen Glass, the former New Republic journalist who was caught inventing stories, should be permitted to practice law:
Glass was fired by The New Republic and was generally shunned by the journalism world. He earned a law degree from Georgetown University Law Center. But the New York State Bar blocked his attempt to practice law in that state, citing his ethical lapses, said Rachel Grunberg, an attorney with the California State Bar’s Office of General Counsel.
Glass moved to California and passed the bar exam here. But in 2009 the Committee of Bar Examiners declined to certify his moral fitness, noting, like New York, his history of lies. Glass then petitioned the State Bar Court’s hearing department, which disagreed with the committee and found the would-be lawyer had the necessary “good moral character.” The hearing officer declared Glass’ 22 supporting witnesses to be “outstanding” and credible.
The committee took the case to the three-judge review department, which in July, on a 2-1 vote, found that Glass had indeed rehabilitated his moral shortcomings and should be certified for admission to the Bar. Now the Committee of Bar Examiners has successfully asked the state Supreme Court to step in.
“In light of the serious misconduct that occurred, albeit a decade ago, [Glass] did not show in the commission’s eyes significant rehabilitation,” Grunberg said. “He just hasn’t shown that he holds those values that we hold dear.”
I have not seen Stephen in a while, but he and I were close friends for a number of years. Knowing him as I do, I can only conclude that the Committee of Bar Examiners made up their mind to deny him a license long before they ever looked at the testimonials submitted on his behalf (I was not among the 22) — the testimonials that convinced the hearing department. It is impossible to spend any amount of time with Stephen and not be convinced — completely and utterly convinced — that he deserves the opportunity to practice law. I was very skeptical of Stephen when I first met him, but that didn’t last long. I quickly realized that, in addition to being brilliant and witty and kind and supportive, Stephen was one of the most thoughtful, introspective, and self-aware people that I had ever met. In the three or so years that he and I were friends, I never once heard him blame anyone but himself for his fall from grace. I never once heard him make an excuse for what happened — and if you suggested to him that he was young and stupid and simply got in over his head, he would immediately disagree with you. I never once heard him downplay the significance of his wrongdoing. I never heard him say that Shattered Glass got his story wrong, as painful as it must have been for him to see his darkest moments splashed across the silver screen. I never once heard him complain about working as a paralegal for iffy law firms with lawyers who couldn’t hold a candle to him, intellectually or legally. And I never once heard him insist that he was rehabilitated and should be forgiven for his sins — to me, the most compelling indication that he was, in fact, rehabilitated.
American law practice is full of unethical lawyers. Stephen Glass will not be one of them. He does not deserve to have the rest of his life ruined for the terrible mistakes he made more than a decade ago.
Today is an historic day in world population statistics, marking the day that planet reaches seven billion inhabitants. What is amazing is, despite the phenomenal growth in population, the citizens of the world are becoming healthier and wealthier every year. Gapminder has an incredibly interesting timeline that shows the progression of life expectancy (y axis) and income per person (x axis) from 1800 to the present. Push the play button and watch the world’s inhabitants grow healthier and wealthier than ever before in the history of the world.
The Volokh Conspiracy is hosting a discussion of a new book on media bias entitled Left Turn: How Liberal Media Bias Distorts The American Mind. Here is a snippet from the summary on the Amazon page:
Dr. Tim Groseclose, a professor of political science and economics at UCLA, has spent years constructing precise, quantitative measures of the slant of media outlets. He does this by measuring the political content of news, as a way to measure the PQ, or “political quotient” of voters and politicians.
Among his conclusions are: (i) all mainstream media outlets have a liberal bias; and (ii) while some supposedly conservative outlets — such the Washington Times or Fox News’ Special Report — do lean right, their conservative bias is less than the liberal bias of most mainstream outlets.
If you can stop laughing long enough at the central thesis of the book, you might want to note that there is already a burgeoning critical literature on its flawed methodology, which somehow manages to lead to the conclusion that the RAND Corporation is more liberal than the ACLU, the NRA is barely right-of-center, and the ACLU is on the conservative side of the ledger. (Were that it so!) It also claims that, but for liberal media bias, McCain would have defeated Obama 56% to 42% in the last election.
In any case, you can find the Volokh Conspiracy’s intro post here. And here is a roundup of links to sources that debunk the book and/or its underlying academic studies:
- A forthcoming article by Carnegie-Mellon’s John Gasper.
- An analysis by Brendan Nyhan, a professor of government at Dartmouth.
- An analysis by Geoff Nunberg, a linguistics professor at Berkeley.
- Critical thoughts by Columbia’s Andrew Gelman.
- An analysis by Media Matters.
Not surprisingly, the authors of the book have received funding from the usual conservative suspects, such as AEI, The Heritage Foundation, and the Hoover Institute.
As some readers may know, I spent four years writing television in Los Angeles — law, cop, and terrorism shows — before becoming an academic. When I wrote scripts, I prided myself on accuracy: although I occasionally took artistic license, I always tried to get the law and facts right as best I could. So it bothers me to no end when television shows use plot devices that even cursory research would indicate are inaccurate. A recent case in point: an episode of White Collar, an enjoyable trifle of a show about a con man who gets captured and has to work with the FBI. The entire episode is built around a cold-blooded killer who pretends to be an Interpol agent in order to extract information from various main characters on the show — all of whom are supposed to be extremely sophisticated about the world of law enforcement. Just one problem…
Interpol, of course, doesn’t have agents. Its job is to facilitate communication and cooperation between various police agencies around the world.
Seriously, this isn’t rocket science. There is even an entire internet page dedicated to cataloging all of the various popular-culture references to Interpol agents. It took me 30 seconds to find using Google.
QS World University Rankings has released its list of the world’s top law schools. Here are the top 30:
8. London School of Economics
15. Australia National University
19. Victoria University Wellington
21. King’s College London
22. University College London
23. University of British Columbia
24. National University Singapore
25. University of Pennsylvania
29. New South Wales
Any ranking system should be taken cum grano salis, of course, and the law rankings are no different. I find it difficult to believe that Chicago and UCL aren’t ranked considerably higher, and the list seems considerably Anglocentric, with the first non-English-speaking law school — the University of Bologna — not checking in until number 32.
That said, I am delighted to see Melbourne ranked so highly. I have noted before the exceptional quality of our public international law faculty, but we are very strong across the board — in both private and public law. It’s good to see my colleagues’ skill and productivity recognized.
ADDENDUM: Congratulations are also due to my former colleagues at Auckland, a law school with wonderful faculty and students that is held back solely by its inadequate facilities.
The D.C. Circuit held this week that torture by non-state actors was not actionable under the Alien Tort Statute. The case, Ali Shafi v. Palestinian Authority, arose from the alleged torture in the West Bank by the Palestinian Authority and the PLO of a Palestinian national who was an Israeli spy.
The Shafis argue that “the [Palestinian Authority's] conduct violated universally recognized and applicable norms of international customary law prohibiting torture by a public official .” App. Br. 22. That argument cannot prevail. Appellants are advancing a theory that nonstate actors can nonetheless be public officials. We need not decide whether that is a possibility, as there is clearly no sufficiently universal norm of international law supporting such a concept to support the creation of an ATS cause of action for torture against a nonstate actor, even if that actor falls into the appellants’ proposed expanded category of “public official.”
The Court recognized the some actions by non-state actors could be actionable, such as piracy and infringements of rights of ambassadors. It also seemed to accept Kadic v. Karadzic’s rationale that genocide by a non-state actor could be actionable. Nonetheless, the Court held that “in 2011 it remains the case that appellants have shown us no such consensus. The complaint does not state a claim cognizable within the jurisdictional grant of the Alien Tort Statute.”
The Safis argued that Common Article 3 of the Geneva Conventions provided the requisite consensus, but the Court rejected that argument, finding that the status of the PLO and the nature of Israeli relations with the Palestinian territory are subjects of continuing debate. In other words, the Court was unwilling to conclude that the alleged torture occurred in the context of an armed conflict such that Common Article 3 applied and could serve as the basis for the requisite international consensus required under Sosa. (This, in my view, is the weakest part of the decision).
The Court also upheld the district court’s decision to dimiss the pendant tort claim raised under Israeli Law, finding that 28 U.S.C. 1367(c) gave it permission to do so.
One of the more interesting parts of the opinion came from Senior Judge Stephen Williams. In his concurring opinion, Judge Williams tried to limit the scope of actionable claims against non-state actors to claims that raise concerns of state sovereignty:
“It seems to me that the unifying feature of the three offenses is that their punishment protects and facilitates the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war. Piracy involves a rejection of the Westphalian system itself—pirates remove them-selves from the national building blocks of interna-tional society (and hence are enemies of all mankind). … As to cases against foreigners, violations of the law of nations would be actionable under the ATS if they matched piracy as an affront to Westphalian sovereignty itself, or if the foreign perpetrator were linked to the United States by residence or by some other feature such that American disregard of the offense might cause serious blame to fall on the United States.”
Curiously, Senior Judge Williams failed to apply his analysis to the question at hand: whether a Palestinian who is serving as an Israeli spy and is tortured by the Palestinian Authority because he is a spy in any way implicates the Westphalian system such that his claim should be actionable.
The slow, quiet demise of the ATS continues. Without further support from the Supreme Court, it appears that the statute is in free fall.