I thank Professor Bartow for taking the time to respond to my article, but I am deeply disappointed that she has chosen to misrepresent many of its principal arguments, attacking me for statements I did not make and for opinions I do not hold. My article is a comparative study of constitutional obscenity jurisprudence in the United States and Canada. Prof. Bartow begins her critique by complaining that I should have written about international rather than comparative law: “Although this article was published in a forum dedicated to international law, as [sic] it does not discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking . . . . But since part of his goal was to dismiss harms associated with pornography production, he ignored them.”

The article was published in the Yale Journal of International Law, which, notwithstanding its title, is a forum devoted to comparative as well as international law. It examines the doctrine of obscenity, which criminalizes expression even in the absence of harm. My goal was not “to dismiss harms associated with pornography production.” For example, with regard to pornographic films, I wrote: “Certainly the use of coercion to produce such materials is a heinous crime. But coercive acts and materials produced thereby may be suppressed without resort to the doctrine of obscenity.” (p. 365) Trafficking, battering, rape and murder should be punished as such, and pornographic materials produced without the consent of the participants should be suppressed. But I reject the obscenity doctrine, because it permits the “criminalization of materials produced by and for consenting adults.” (p. 302)

I was asked to respond to Bret Boyce’s recent article, published in the Yale Journal of International Law and entitled “Obscenity and Community Standards.” My one sentence summary of his thesis is this: Pornography is private sexual expression with which legislatures and courts should not interfere. Although this article was published in a forum dedicated to international law, it doesn’t discuss international law at all. There are many salient aspects of international law the author could have engaged with, particularly related to sex trafficking, which is profoundly linked to pornography production as well as prostitution. But since part of his goal was to dismiss harms associated with pornography production, he ignored them. Catharine MacKinnon has drawn these important connections in Pornography as Trafficking, a chapter in her recent book: are women human? And Other International Dialogues.

The article would have benefited from clear definition of what Boyce means by censorship. Throughout the piece, he conflates erotica, pornography, and obscenity without differentiating between works that do not require the direct participation of human performers, such as written material, and works that clearly do, such as films of people engaging in sexual acts. Efforts to address the harms inflicted on people during pornography production apply only to the second category of works, so the distinction is important.

Nor does he analytically distinguish between words and pictures. But the federal government often does. The most censorious law the U.S. government has successfully implemented in recent years, the Children’s Internet Protection Act, restricts its reach to “any picture, image, graphic image file, or other visual depiction” that is harmful to minors. Sociologist and researcher Diana Russell noted almost a decade ago that proponents of the anti-pornography-equals-censorship school deliberately obfuscate any distinction between erotica and pornography, and Boyce adopts this tactic.

Boyce critiques Canadian obscenity law in some detail, which I will not address beyond noting that he distorts the positions held by Catharine MacKinnon and Andrea Dworkin. I am mostly in accord with many of Boyce’s general criticisms of U.S. obscenity law, which track to a surprising extent some of the objections Catharine MacKinnon raised over a decade ago in her essay Not a Moral Issue (published in her book Feminism Unmodified, and in Applications of Feminist Legal Theory to Women’s Lives by D. Kelly Weisberg). I agree that the concept of obscenity as a legal construct is far too ambiguous to be a legitimate or just basis for criminal sanctions or civil liability. I also agree that it is highly unlikely that a judge or jury could fairly and consistently delineate a defensible description of “community standards.” And I certainly agree that obscenity law has been used against women, sometimes in contexts such as dissemination of information about birth control, and the breastfeeding of babies in public. I don’t know a single feminist legal theorist who embraces obscenity law or the Miller test as effective or just mechanisms to regulate pornography. Catharine MacKinnon explained:

In this article, I present a comparative study of constitutional obscenity doctrine in the United States and Canada, and argue that the community standards test that has long been the touchstone of this jurisprudence cannot be reconciled with fundamental principles of freedom of expression and conscience. 

In the United States, the imposition of community standards of morality is at odds with the U.S. Supreme Court’s increasingly explicit rejection of mere majoritarian morality as a basis for criminal regulation, especially in the private sexual sphere.  Moreover, the Court’s embrace of local standards was always constitutionally anomalous and is increasingly so in the internet age. 

The Supreme Court of Canada has tried to develop an alternative approach, insisting on a national standard grounded not in morality but in harm, especially harm to women.  However, this national standard is largely a fiction, and the claim that whatever the community does not tolerate is by definition harmful is both theoretically and empirically untenable.  The Canadian Court has implicitly recognized these difficulties in a recent decision that appears to jettison the community standards test altogether, and to focus purely on the question of harm caused by “degrading” and “dehumanizing” materials.  It is not clear, however, that this new approach rescues the doctrine from the vagueness that has led in practice to repressive and discriminatory enforcement, which, ironically, has been targeted especially against gays, lesbians, and feminists. 

Both the U.S. and Canadian experiences thus suggest that the obscenity prosecutions have been arbitrary and highly political.  The article concludes that the prohibition of obscenity is incompatible with free expression, whether such prohibition is based on community standards, or on the harms that are said to flow from “degrading” and “dehumanizing” material.  Bans on sexually explicit materials that involve only consenting adults in their production and distribution cannot be justified in societies committed to the freedom of speech and conscience.

You can read the entire article here.

I thank YJIL and Opinio Juris for the opportunity to comment on Monica Hakimi’s article, “International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide.” Monica’s important paper will contribute to a raging debate likely to grow more intense as President-elect Obama moves to shut down Guantanamo and put U.S. detention policy on sounder legal footing.

One of its contributions to the detention law debate is methodological, and especially its focus on state practice. The article’s analysis faces familiar methodological challenges of measuring and assessing state practice – what exactly should we look to in determining the strength of opinio juris, when is state practice law-breaking rather than law-making, etc.—but its effort to look beyond broad pronouncements and investigate state behavior casts doubt on claims that international law is settled and clear with respect to administrative detention for security purposes.

Another contribution is in reframing a bipolarized debate – law of war versus criminal law – into a tripolar one, adding administrative detention, though here I think the point should be taken further. Monica states that the administrative detention model is underdeveloped and proposes some substantive and procedural standards to help fill it in. But I wonder whether administrative detention is so underdeveloped, or so expansive a concept, that it doesn’t make sense to think of it as a single model at all.

Consider the many dimensions along which administrative terrorist detention proposals or examples vary: robust judicial review versus deference to military judgments; short-term versus long-term; one-time challenge versus periodic review; regular civilian judges versus special courts or military panels; right to counsel of choice versus special advocates; full discovery versus secrecy provisions. While it is tempting to think of administrative detention as lying between the criminal and law-of-war models, depending on how these matters are resolved, an administrative system can be even less liberty-protective than traditional battlefield hearings or more liberty-protective than criminal prosecution (a point Monica makes on p. 409). And these are just variations of procedural or institutional design.

I’d like to hear more discussion about substantive questions of administrative detention law. Monica is quite right when she says:

The availability of meaningful legal process is critical because, unlike traditional combatants, terrorists operate by blending into the general population, and any counterterrorism detention regime thus is likely to target a relatively high number of innocents—persons who are suspected of posing a threat but in fact do not (p. 408).

How protective is even the most robust legal process, though, if substantive constraints are defined loosely? Take proof burdens: how strong a case must the government establish? Judicial review and fully-assisted adversarial process won’t solve the false positive problem if the state need only establish its case by, say, preponderance of evidence. Or take the substantive grounds upon which administrative detention may be justified. Even requiring proof beyond reasonable doubt is little protection to innocents or those unlikely to actually commit terrorism if the substantive criteria for detention are defined very broadly (e.g. for “state security” or “supporting terrorism”), much as very expansive material support criminal liability could net many individuals who aren’t very threatening or morally culpable.

I’ve tried to analyze the standard of proof issue here, looking to the law of targeting as a framework from which to draw standards. I’ve also tried to analyze the questions of “why detain?” and “detain whom?” here, arguing that the answers to those questions are at least as determinative of security-liberty balances and consequences as are choices of procedural or institutional design.

Implicit in Monica’s analysis is a similar conclusion. Taking up her challenge to develop coherent standards, I hope to see more discussion of substantive issues such as for what specific purpose might administrative detention be legitimate or illegitimate, and, accordingly, by what substantive criteria should individual detention decisions be judged.

To some these may seem like easy questions: administrative detention is to prevent terrorism, so detain those likely to commit terrorism—duh. Not so fast, though. Monica explains that “[l]ike detention under the law of armed conflict, administrative detention is preventative. Its focus is on incapacitating persons who pose a future security threat….” (p. 388). But detention could be thought to serve the goals of prevention in a number of ways, including putting out of action those believed to be highly dangerous, incapacitating (or deterring) those who—while perhaps not directly participating in plots—indirectly support or facilitate terrorism, disrupting imminent attacks, or facilitating the interrogation of those likely to have information about terrorist planning. And depending on the specific purpose, administrative detention decisions might be based on prior terrorist behavior, expressions of future intent, suspected involvement in specific plots, indications of knowledge, etc. Some of these options seem less legitimate and more prone to error, abuse or overuse than others. As I’ve tried to argue here, just as the merits or dangers of administrative detention schemes depend on their specific procedural characteristics, so too do they depend on the substantive choices or how broadly or narrowly these substantive nets are cast.

I began by noting that Obama’s intentions to close Guantanamo will ignite further debate about the appropriateness of administrative detention, since that will be one option – among a range of all difficult ones – for getting there (see here). As Monica’s paper shows, it would be incorrect to cast this as a debate about whether to cross the administrative detention rubicon. That threshold has been crossed already, by some coalition partners and (though not addressed in Monica’s paper) in other domestic legal contexts. The issue is whether to expand its use, and if so not just according to what procedural constraints but what substantive constraints – recognizing that any new administrative detention expansions to deal with national security threats are especially prone to manipulation and overuse and likely to be viewed as discriminatory by communities whose trust we need to earn. If Monica is right, that some administrative terrorist detention schemes are legally viable, this still leaves open an enormous strategic policy question with potentially dire consequences on both sides.

Thanks to Opinio Juris for hosting this symposium. I read the blog regularly so know to expect a lively and interesting discussion.

My article addresses the international legal rules for detaining “non-battlefield terrorism suspects”—i.e., suspected terrorists not captured on a conventional battlefield or in the theater of combat. Despite the extensive literature on the rules that govern the “war on terror,” and on the treatment of detainees in particular, there continues to be significant confusion about when, and under what conditions, a state may lawfully detain non-battlefield terrorism suspects. On those questions, two broad strands of thought have emerged. One asserts that the law of armed conflict governs to permit extended detention with minimal legal process; the other claims that human-rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice. Rather than uniformly adopting one approach or the other—the armed conflict approach or an exclusively criminal one—international actors have been groping for new options. International practice demonstrates that states (and particularly western democracies that take seriously their human rights obligations but also face a real threat from transnational terrorism) perceive an occasional but serious need to detain non-battlefield suspects outside the criminal process. In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures.

Based on a review of that practice, I argue that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder—if the law of armed conflict does not apply, then the criminal law must—is mistaken. The criminal law is an important tool for detaining terrorism suspects, but human rights law also recognizes that, even in peacetime, states may detain persons who threaten their security outside the criminal process and instead through calibrated systems of administrative detention. Moreover, administrative detention may better balance the liberty and security interests at stake in the context of particular terrorism suspects. In order for administrative detention to fill the void for a sustainable detention regime, however, its parameters must be better defined. My article thus begins the project of refining the international law on administrative detention, as it applies in the fight against terrorism. The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their legitimate security needs.

The Yale Journal of International Law (YJIL), one of the world’s leading journals of international and comparative law, is pleased to continue its partnership with Opinio Juris in this second online symposium. This week, we will be featuring two Articles published by YJIL in Vol. 33-2, both of which are available here. Thank you to Peggy McGuinness and the other moderators of Opinio Juris for hosting this discussion!

Today, Monica Hakimi (University of Michigan Law School) will discuss her Article, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide. Hakimi’s Article examines the question of when and how international law permits a state to detain suspected terrorists away from a theater of combat. After identifying the shortcomings of the traditional armed conflict and criminal paradigms for understanding states’ detention authorities, Hakimi develops a third model—administrative detention under international human rights law—and identifies the policy considerations that should inform this new system to ensure that it satisfies states’ security needs while also inhibiting states from undertaking unnecessary or abusive detentions. Matthew Waxman (Columbia Law School) will be the respondent.

On Tuesday, Bret Boyce (University of Detroit Mercy School of Law) will discuss his Article, Obscenity and Community Standards. Boyce’s Article presents a comparative study of constitutional obscenity doctrine in the United States and Canada and concludes that the “community standards” test—long the touchstone of obscenity jurisprudence—cannot be reconciled with the fundamental principles of freedom of expression and conscience. Ann M. Bartow (University of South Carolina School of Law) will be the respondent.

We hope that you will join us this week for what is sure to be a vigorous and thought-provoking debate!