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George Kennan, International Lawyer?

by Harlan Cohen

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.

As Fred Kaplan sums up in his New York Times review,

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.

Yes, Stephen Glass Should Be Allowed to Practice Law

by Kevin Jon Heller

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.

Healthier and Wealthier: Seven Billion and Counting

by Roger Alford

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.

Did You Hear the One About Fox News Being Less Biased than the “Liberal” Media?

by Kevin Jon Heller

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.

Don’t TV Writers Use Google?

by Kevin Jon Heller

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 Law School Rankings

by Kevin Jon Heller

QS World University Rankings has released its list of the world’s top law schools.  Here are the top 30:

1.  Harvard
2.  Oxford
3.  Cambridge
4.  Yale
5.  Stanford
6.  Berkeley
7.  Columbia
8.  London School of Economics
9.  Melbourne
10. NYU
11. Sydney
12. McGill
13. Toronto
14. Chicago
15. Australia National University
16. UCLA
17. Michigan
18. Auckland
19. Victoria University Wellington
20. Monash
21. King’s College London
22. University College London
23. University of British Columbia
24. National University Singapore
25. University of Pennsylvania
26. Duke
27. Texas
28. Cornell
29. New South Wales
30. Otago

    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.

    Torture by Non-State Actors Not Actionable Under ATS

    by Roger Alford

    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.

    On The Road Again — and the Classlessness of Virgin Blue

    by Kevin Jon Heller

    I’m traveling in Europe for the next few weeks, so posting will be a bit light.  As always, I’m happy to meet up with Opinio Juris readers in the places I’m visiting.  Here’s my schedule: June 4-7, Helsinki; June 7-9, Tallinn; June 9-13, Berlin; June 13-15, Leuven; June 15-18, Amsterdam; June 18-20, London.  On June 6, I’m giving a talk at the University of Helsinki about prosecuting WikiLeaks for espionage; and on June 14, I’m giving a talk at Katholik University Leuven about the Nuremberg Military Tribunals’ contribution to crimes against humanity.  I’ll also be defending my dissertation — a version of my book on the NMTs — at Leiden University on June 16, which means that you’ll have to call me “Dr. Kevin” very soon.  Apparently, Leiden’s defence is one of the most formal in the world, including requiring students (ie., me) to wear waistcoats.  I plan on blogging about the experience after it’s over.

    On a different note, I had one of the most insulting flying experiences ever on my Virgin Blue flight from Melbourne to Sydney this morning.  (I’m writing this post in L.A.)  I did not have a seat assigned, and the woman at the check-in counter was nice enough to give me an exit-row aisle, so I’d have a bit more leg room.  Then, when I got to the gate, one of Virgin Blue’s agents pulled me aside and told me that they were moving me back to a regular seat, because someone had paid $45.00 for the exit-row aisle.  When I expressed amazement that they would assign me a seat and then kick me out of it, the agent simply shrugged and reiterated that someone had paid for it.  No apology, no sympathy.  No class. In general, Virgin is an excellent airline — I always fly Virgin Australia to the U.S. and Virgin Atlantic from the U.S. to London.  But I will certainly do what I can to avoid flying Virgin Blue within Australia in the future; there are too many other domestic airlines to put up with that kind of treatment.

    To close on a more positive note, my book will be out in the next couple of weeks, which is very exciting!  My thanks to all the readers who gave me feedback on the cover and who read chapters during the writing and editing process.

    Jacob Katz Cogan Is Back!

    by Kevin Jon Heller

    Readers will be delighted to know that Jacob has restarted International Law Reporter, your one-stop-shopping center for all new international-law scholarship.  And I’m delighted to learn that Jacob’s new essay, entitled “The Regulatory Turn in International Law,” is now forthcoming in the Harvard International Law Journal, which has recently partnered with our blog.  The essay looks fascinating; check it out here.  Congrats to Jacob!

    Call for Papers — The Eichmann Trial at 50

    by Kevin Jon Heller

    Because the “Untold Stories” symposium that Gerry Simpson and I organized was such a success, we are organizing another one.  Here is the call for papers:

    THE EICHMANN TRIAL AT 50

    A two-day international symposium to discuss one of the most important trials of the 20th Century

    Melbourne Law School

    14-15 October 2011

    Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

    Organizers: Kevin Jon Heller & Gerry Simpson

    CALL FOR PAPERS

    Deadline for Abstracts: 15 June 2011

    On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem. The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world. Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death. Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

    2011 marks the 50th anniversary of the Eichmann trial. The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other. The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial. The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

    The symposium will be held over two days.  We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided.  A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

    The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.” The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish. Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

    If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o James Ellis (j [dot] ellis [at] student [dot] unimelb [dot] edu [dot] au).  Doctoral students are welcome to submit abstracts. Participants will be selected by July 1 to facilitate travel plans.

    Questions about the symposium should be directed to Kevin at kheller [at] unimelb [dot] edu [dot] au.

    I hope some Opinio Juris readers will be interested in attending!

    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.

    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.