General

Our readers may find the following event, featuring Opinio Juris' Deborah Pearlstein, of interest: The New York Lawyer Chapter and Benjamin N. Cardozo School of Law Student Chapter of the American Constitution Society, and Floersheimer Center for Constitutional Democracy present: The ACLU in American Life Featuring: Adam Liptak, Supreme Court Correspondent, The New York Times Heather Mac Donald, John M. Olin Fellow, Manhattan Institute for Policy...

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.] The Alien Tort Statute (ATS), 28 U.S. C. §1350, says that an alien may sue in federal district court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court recently asked for briefing on the question “whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Implicit in the question is a seeming concession: an alien tort occurring within foreign sovereign territory is still cognizable under the ATS if the alien plaintiff alleges violation of a U.S. treaty, such as the United Nations Convention Against Torture (CAT). For instance, if an alien alleges torture against another alien in a foreign country, then presumably the claim would be actionable under the ATS, despite the fact that both plaintiff and tortfeasor are aliens and the tort occurred in the territory of a foreign sovereign. In this limited sense (where a ratified treaty may be pled), even the Supreme Court seems to acknowledge a “universal jurisdiction” angle to the ATS. In an article I published in 2006 in the Columbia Law Review, I stated the view that the Alien Tort Statute had nothing to do with universal jurisdiction; it was, I argued, a pragmatic measure enacted by the First Congress in September 1789 to let aliens sue in the federal district courts for money damages in the event of harm to their persons or property when the United States had expressly or implicitly promised the aliens that no such harm would come to them. The ATS both provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility; it is therefore a federal law for purposes of Article III arising-under jurisdiction. Translated to a modern context, the ATS would plausibly be available to "extraterritorial" tort actions by alien detainees at Guantanamo Bay, and non-combatant aliens harmed in Afghanistan, Pakistan, or Yemen in the current war on terror. Such actions would be subject to immunities under the Federal Tort Claims Act, an after-enacted statute, with respect to most U.S. official defendants. And so the answer to the Supreme Court’s question about the extraterritorial application of the ATS is “whenever there is a tort occurring in the territory of a foreign sovereign the commission of which was the result of U.S. sovereign action or inaction when the United States had a duty under international law to prevent the injury to the alien plaintiff.”

If you are already in DC for the ASIL meetings and have some free time today (Wednesday), you might consider coming out to the edges of DC - to Washington College of Law, American University - for a conference sponsored by the ICRC, ASIL's Lieber Society (the laws of armed conflict interest section), and the Center for Human Rights and...

Syrian President Bashar al-Assad has reportedly accepted Kofi Annan's six points peace plan, but the US Ambassador to Syria expressed skepticism that Assad's words would translate into deeds. Navi Pillay has told the BBC that the Syrian forces are targeting children. UN estimates put the civilian death toll in Syria at over 9000. Iran announces that it will hold nuclear talks with the...

John Yoo and I will be discussing our new book, Taming Globalization, tomorrow night, Wednesday, March 28, 2012 from 6-8 p.m., at the The New York Athletic Club, 180 Central Park South New York, New York in an event hosted by the Federalist Society.  Anyone who is interested is welcome to attend! For those of you on Long Island (and I know there...

Amnesty International reports that fewer nations are applying the death penalty, but that those who do are making more use of it. The increase is particularly noticeable in the Middle East. Amnesty International urges EU states to renew their commitment to examine their involvement in CIA secret flights Associated Press reports that the White House offered key concessions, such as advance notice...

The Brits are looking to strip Asma al-Assad of her UK citizenship, this in the wake of the imposition of various sanctions on her and family members of other Assad associates.  Familial sanctions are an increasingly common practice, on the theory that you really get at the bad guys when you deprive their spouses of shopping trips to world capitals.  (In...

Greg Miller has a fascinating front-page story in the Washington Post yesterday (Sunday; it appears to be behind a free registration wall) profiling "Roger," the mysterious head of the Counterterrorism Center at the CIA, a key figure in the pursuit of Bin Laden, and a principal architect of the drones program. Here’s the money quote, borrowing from Lawfare: Roger, which is the first...

Opinions here, with an eight-Justice majority for the result, with the case kicked back downstairs for resolution on the merits.  In the long run, this could prove a watershed decision.  The Court rejects the "textual commitment" and "no manageable standards" bases for applying the political question doctrine.  Neither has ever made a lot of sense to me on their own...

US President Barack Obama spoke in Seoul today, promising to pursue nuclear cuts, an issue he will push in a May meeting slated with incoming Russian President Vladimir Putin. Pakistan’s legislators are debating ties with the US, specifically with respect to re-opening NATO supply routes that have been closed since a US attack killed 24 soldiers in Pakistan last November. Iranian President Mahmoud...

My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website.  I have a copy in hand and I’m delighted to be holding it.  It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you might have thought.  (Julian - feel free to weigh in here: I'm thinking having one's new book in hand is kind of like holding one of those Japanese roboticized teddy bears for soothing the elderly with dementia, but maybe that's just me.) It will be a couple of weeks – April 17 – before it's available through Amazon, Barnes & Noble, and other online sellers.  A Kindle edition will be released on April 17 as well.  Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN.  Julian will be doing the same with his and John Yoo's provocative new book, Taming Globalization, so expect to hear a lot at OJ about themes in our books (we have, btw, covertly set up an algorithm in which the more OJ readers buy our books, the less we will talk about them!).  To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press.  This follows on some excellent guest posts by senior academic press editors in the past here at OJ - I'm really extending my take on those past discussions. I'm hoping that my thinking here will be useful to some OJ readers thinking about publishing. This is a policy essay, not a “scholarly” book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work.  My interest in this case is dissemination of the ideas in the book, not staking out academic turf.  So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past.  Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph.  Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover. The Hoover publishing folks have been marvelous.  They have been fabulous on production values, editing and copy editing, all the professional production elements.  They have been patient to a fault in waiting for the manuscript and letting me make later changes.  And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries.  But several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press?  After all, isn’t a think tank press – even one associated with a university, like Hoover, and moreover a conservative think tank – taking a hit in academic prestige and respectability?