Opinio Juris

Thursday, May 15, 2008

John Boonstra on R2P and Burma

by Kevin Jon Heller

I had contemplated weighing in on commentators' unfortunate tendency to equate the Responsibility to Protect doctrine with humanitarian invasion, but John Boonstra at UN Dispatch beat me to it. Here's a snippet:

First, by and large, the R2P doctrine has been misunderstood or misrepresented in calls to "invade" Burma. R2P is often implied to boil down to a simple equation: if a government is unable or unwilling to adequately protect its citizens, then the international community has a right to forcibly intervene to protect these people. The first part of this conditional is accurate, but the second is a gross oversimplification. R2P does not prescribe invasion any more than the Constitution of the United States mandates impeachment. Military intervention is only one component of the R2P framework, and one of last resort, at that; it is only to be undertaken when a series of specific conditions are met, ensuring that intervention is justified, well-intentioned, practical, authorized by the proper authority (i.e., the UN Security Council), and will not cause more harm than good.

Wielding R2P as a Trojan horse for invasion and regime change, as Robert Kaplan seems to desire, is harmful to the integrity and future viability of the concept, as well as to the more pressing concern of alleviating the Burmese people's suffering.

The whole post is well worth a read. It's here.

05.15.2008 at 6:58pm 1 Comments 0 Trackbacks

Friday, May 9, 2008

Guantanamo's Collateral Damage

by Peggy McGuinness

In his January 2002 comments to then-White House Chief of Staff Gonzales on the applicability of the Geneva Conventions to detainees captured in Afghanistan, Colin Powell warned of the foreign policy consequences of abandoning long-accepted Geneva Convention practices, including:

It will reverse over a century of U.S. policy and practice in supporting the Geneva conventions and undermine the protections of the law of war for our troops, both in this specific conflict and in general.

It has a high cost in terms of negative international reaction, with the immediate adverse consequences for our conduct of foreign policy.

It will undermine public support among critical allies, making military cooperation more difficult to sustain.

I added my own thoughts about the foreign policy costs in this response to Eric Posner during last year's Opinio Juris discussion of GWOT legal policy with John Bellinger. Today, we learn of the most recent specific cost of the Guantanomo detention policy: The withdrawal of the nomination of former Guantanamo Commander Jay Hood to head the military liason office at the US Embassy to Pakistan. As the NY Times reports here:

[T]he military has quietly canceled the assignment of General Hood, a 33-year Army veteran who was excoriated in the Pakistani news media for one of his previous jobs: commander of the United States prison at Guantánamo Bay, Cuba.

During General Hood’s command from 2004 to 2006, military authorities force-fed with tubes detainees who were engaging in hunger strikes at the Guantánamo prison, a step they justified as necessary to prevent the prisoners from committing suicide to protest their indefinite confinement. Also during General Hood’s tenure, reports that an American guard may have desecrated a Koran stirred wide protests in the Islamic world.

The decision to withdraw General Hood’s assignment has not been announced, but it appears to reflect the widening shadow that the military prison at Guantánamo is casting over American foreign policy. While the United States considers Pakistan a close ally in its counterterrorism efforts, the accounts by Pakistanis who have returned to Pakistan after being held at Guantánamo Bay have added to anti-American sentiment in the country.

Several leading Pakistani military and foreign affairs commentators denounced General Hood’s selection in recent weeks, calling on their new government to block his appointment. In interviews this week, American military officials said they had reluctantly concluded that General Hood’s effectiveness could be seriously hindered, and that his personal safety might even be at risk if he were to take up the post.

About 65 detainees at Guantánamo Bay have been repatriated to Pakistan, according to Cmdr. Pauline Storum, a military spokeswoman.

What is particularly striking is that the withdrawal came in response to public outcry (though one can assume it was echoed in official communiques) in a place where symbols can be leveraged by very dangerous elements:

“Guantánamo Bay itself has become a symbol of injustice, torture and abuse of Islam, and sending a commanding officer from there to Islamabad begs the question: What is the message coming out of the Pentagon for Pakistanis by this insensitive act?” Shireen M. Mazari, director general of the Institute of Strategic Studies, a research group in Islamabad financed by Pakistan’s foreign office, wrote on March 20 in The News, one of the largest English-language newspapers in Pakistan.

So, will John McCain pick a running mate who thinks we should "double Guantanamo?" Or will he stick to his recent statement calling for its closure?

05.09.2008 at 12:21pm 2 Comments 0 Trackbacks

Wednesday, May 7, 2008

McCain Equates International Law (in Constitutional Interpretation) as an "Airy Construct"

by Julian Ku

Some clues to the types of judges a President McCain might appoint can be found in his speech today. Readers of this blog might be interested in McCain's criticism of Roper v. Simmons and its musings on international law.

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

He is basically right about the inherent problems of using international law to interpret the U.S. Constitution in the rights context. But I somehow doubt a President Obama (or President Clinton) would share these sentiments.

05.07.2008 at 12:02am 2 Comments 0 Trackbacks

Tuesday, May 6, 2008

How Do You Chip out of a Mortar Hole?

by Kevin Jon Heller

I'm sorry, I just can't let this one go:

Picture, if you will, a tree-lined plaza in Baghdad's International Village, flanked by fashion boutiques, swanky cafes, and shiny glass office towers. Nearby a golf course nestles agreeably, where a chip over the water to the final green is but a prelude to cocktails in the club house and a soothing massage in a luxury hotel, which would not look out of place in Sydney harbour. Then, as twilight falls, a pre-prandial stroll, perhaps, amid the cool of the Tigris Riverfront Park, where the peace is broken only by the soulful cries of egrets fishing.

Improbable though it all may seem, this is how some imaginative types in the US military are envisaging the future of Baghdad's Green Zone, the much-pummelled redoubt of the Iraqi capital where a bunker shot has until now had very different connotations.

A $5bn (£2.5bn) tourism and development scheme for the Green Zone being hatched by the Pentagon and an international investment consortium would give the heavily fortified area on the banks of the Tigris a "dream" makeover that will become a magnet for Iraqis, tourists, business people and investors. About half of the area is now occupied by coalition forces, the US state department or private foreign companies.

The US military released the first tentative artists' impression yesterday. An army source said the barbed wire, concrete blast barriers and checkpoints that currently disfigure the 5 sq mile area would be replaced by shopping malls, hotels, elegant apartment blocks and leisure parks. "This is at the end of the day an Iraqi-owned area and we will give it back to them with added value," said the source, who requested anonymity.

Potential investors are being encouraged to take a punt that years ahead, Baghdad's fortunes may mirror former war-torn cities such as Sarajevo and Beirut that have risen from the ashes.

Marriott International has already signed a deal to build a hotel in the Green Zone, according to Navy Captain Thomas Karnowski, the chief US liaison. Also in the pipeline is a possible $1bn investment from MBI International, a hotel and resorts specialist led by Saudi sheikh, Mohamed Bin Issa Al Jaber.

One Los Angeles-based firm, C3, has said it wants to build an amusement park on the Green Zone's outskirts. As part of the first phase, a skateboard park is due to open this summer.

The best thing about the "artist's rendering" is the complete absence of background. Wonder why that is?

05.06.2008 at 6:42pm 1 Comments 0 Trackbacks

Friday, May 2, 2008

The Real War on Terrorism

by Julian Ku

Critics of the U.S. war on terrorism often suggest that it is not a "real war" and that it is merely a slogan. Indeed, many critics reject the "war" paradigm completely. That's a fair argument, but it is worth remembering that there are traditional war-like aspects of the war on terrorism that don't neatly fit in the law-enforcement paradigm usually favored by the critics. Case in point: the U.S. government's airstrike yesterday in Somalia killing an Al Qaeda leader there. If the U.S. was not engaged in a "war", what could possibly be the legal justification for such a strike, either under international law or domestic U.S. law? Such actions, which are largely uncontroversial in the U.S. and even abroad, need to be explained under some legal paradigm. War may not quite capture what is going on, but it comes close.

05.02.2008 at 12:02am 24 Comments 0 Trackbacks

Thursday, May 1, 2008

John Yoo and the Justice Case -- Post at Balkinization

by Kevin Jon Heller

Marty Lederman has kindly published a long post I have written on what — if anything — the Justice Case has to say about the criminal responsibility of government lawyers like Yoo. Here is the introduction:

Scholars who argue that John Yoo’s authorship of the infamous torture memos makes him complicit in various war crimes -– torture, illegal detention, etc. -– almost invariably cite the WWII-era case United States v. Alstoetter, commonly referred to as the Justice Case, for the proposition that a government lawyer can be held criminally responsible for giving erroneous legal advice to his political superiors. Here, for example, is what Scott Horton, an excellent scholar and one of our finest bloggers, has to say:
Can a lawyer at the Department of Justice be criminally liable for giving opinions that lead to the torture and abuse of prisoners in war time? The answer is: Yes. The precedent is United States v. Altstoetter. The sentence handed down was ten years, less time served awaiting trial. It’s a case for John Yoo to study in the period leading up to his inevitable prosecution.
I do not know enough about Yoo’s actions to venture a general opinion about their possible criminality. I do know something, however, about the Justice Case -– I am currently writing a book for Oxford University Press on the jurisprudence of that trial and the eleven other trials held in the American zone of occupation between 1946 and 1949, which are collectively known as the Nuremberg Military Tribunals (NMT). So I thought readers might be interested in a detailed look at what the Justice Case says -– or doesn’t say -– about the culpability of government lawyers who advise their clients that unlawful conduct is, in fact, lawful. The bottom line, in my view, is that as reprehensible as Yoo’s opinions were –- and they were indeed reprehensible -– the case provides far less support for prosecuting him than most scholars assume.

I hope readers will check out the entire post, along with Marty's excellent introduction, in which he discusses his general views on the issue. I completely agree with Marty and hope that readers will not misunderstand my position. I am not saying that nothing John Yoo and the other government lawyers did could ever be considered criminal. I am not saying that the Justice Case rules out the possibility of a future prosecution. Indeed, I can imagine — counterfactually — a situation in which the NMT would have convicted a government lawyer of complicity for giving his political superiors advice he knew full well violated international law. My position is simply that the Justice Case did not involve such a situation and that, as a result, the judgment has almost no precedential value for a future prosecution of Yoo and/or others.

05.01.2008 at 7:34pm 10 Comments 0 Trackbacks

Monday, April 28, 2008

Bellinger on the United States and the ICC

by Roger Alford

I think there is more to Bellinger’s speech on the United States and the ICC than Julian suggests. Let me just summarize the best parts of the speech. First, Bellinger emphasizes that the ICC is not a partisan issue:

A relatively straight line runs from the positions on the ICC taken by our Congress in 1990, to those of U.S. negotiators in Rome, to President Clinton’s decision not to seek Senate ratification of the Rome Statute and to recommend the same to his successor, and to the current position of the Bush Administration.

Second, Bellinger argues that this position is not likely to change with the next Administration:

Even if a future President were to advocate U.S. accession to the Rome Statute, he or she could very well face a skeptical reaction in the U.S. Senate. It’s worth bearing in mind that the American Servicemembers’ Protection Act – legislation that was not sought by the Bush Administration and that includes a range of restrictions on U.S. support for the ICC – passed the Senate in 2002 by a vote of 75-19, including the affirmative votes of Senators Clinton and McCain, as well as those of the current Senate Majority and Minority Leaders, Senators Reid and McConnell.

Third, if we accept that the United States will remain outside the ICC for the forseeable future, what should be the response? Bellinger has the following suggestion:

The core concerns of the United States about the Rome Statute have not been resolved during the past decade, and are unlikely to be resolved in the next decade, unless the Statute is changed. Accordingly, as we look forward, the United States will very likely remain outside the Rome Statute regime. This is a reality that ICC supporters should accept. Agreeing to disagree about the ICC is the essential first step toward developing a more mature and productive relationship that can effectively advance our shared goal of promoting international criminal justice. This will involve seizing opportunities for cooperative efforts where they exist and avoiding pitfalls that risk reigniting past tensions. We should be guided in our efforts by the premise that the ends we seek are far more important than the means by which we seek them. The United States and ICC supporters can do more to prevent impunity for serious crimes by working together than either can achieve on their own, and it is in our mutual interest to develop a relationship that recognizes this.

Finally, as for concrete ways that the United States and the ICC can work together in a cooperative manner, Bellinger mentions Darfur, the Security Council, and the Rome Statute review conference on a crime of aggression:

It is important that we put aside our differences on these issues because the next decade poses challenges that will require our collective efforts as well as pitfalls that risk further inflaming tensions over ICC issues. Let me now discuss a few issues that I think will shape the relationship between the United States and the ICC in the coming years.

A first area relates to the response to large scale and horrific crimes in Darfur. Absent a decision by the ICC to pursue an investigation or prosecution against a U.S. person, the outcome of the ICC’s Darfur work is likely to do more than any other factor in the near term to shape U.S. perceptions of the role and impact of the ICC…. Darfur is … a good example of an area where, with respect and goodwill on all sides, there may be opportunities for constructive cooperation….

A second more general area that will shape U.S. views and policy toward the ICC in the coming years will be the impact of the ICC’s work on the UN Security Council…. Now that the ICC is a reality, it will be important to the United States to ensure that the work of the ICC complements the work of the Council to maintain international peace and security…. As the ICC proceeds to investigate and prosecute cases under the Rome Statute, the Security Council must be prepared to act if and when necessary to ensure harmony between the ICC’s work and the Council’s broader efforts....

A final area that will shape U.S. views and policy toward the ICC is the outcome of the upcoming Rome Statute review conference, now scheduled for 2010. If Rome Statute parties were interested in trying to address the core U.S. concerns about the ICC, the Review Conference could provide an opportunity to do so. These issues aside, a principal focus of work of the conference will likely relate to proposals to define a crime of aggression over which the ICC could exercise jurisdiction…. Efforts to design an aggression regime for the ICC will also need to address the regime’s applicability to countries that are not parties to the Rome Statute. As I have noted, a core principle of our ICC policy is that, as we acknowledge the decisions of other states to join the Rome Statute and to submit to its jurisdiction, we ask that other states accept our decision not to do so. In this context, should Rome Statute parties seek to make an aggression regime they adopt applicable to non-parties, they will almost certainly provoke a serious new crisis in the ICC’s relationship with a new U.S. Administration.

I’m not sure whether this constitutes new rhetoric or not, but I like the notion that if the United States is not joining the ICC anytime soon, then we should move toward accepting that political reality and find ways to cooperate on areas where the United States and the ICC share common interests. I particularly think that developing a framework for a crime of aggression must be done with the close cooperation of the United States. As a practical matter the world has almost no other major defense force to support the cause of international peace and security. To think that our allies in the ICC would dictate to the United States how it will use those resources without input from the United States is a serious mistake.

Tuesday, April 22, 2008

So You Want to Become an American?

by Roger Alford

One of my students recently took the naturalization test and was kind enough to share with me the “Quick Civic Lessons” that the government hands out to help prepare for the test. Most questions are terribly easy, but I would suspect a few are hard for the average would-be American:

15. Who Elects the President of the United States?

19. How many changes, or amendments, are there to the Constitution?

28. How many voting members are in the House of Representatives?

38. Who Becomes President if both the President and Vice President die?

67. What was the 50th state to be added to our Union?

72. Name the amendments that guarantee or address voting rights?

75. Whose rights are guaranteed by the Constitution and the Bill of Rights?

88. What U.S. Citizenship and Immigration Services form is used to apply for naturalized citizenship?

89. What kind of government does the United States have?

90. Name one of the purposes of the United Nations?

93. What is the most important right granted to United States citizens?

The official answers, with explanations, are below (bonus points if you can spot the wrong answer):

(Continue Reading)

04.22.2008 at 8:46am 4 Comments 0 Trackbacks

Monday, April 21, 2008

Posner: Don't Expect Much from a New President When It Comes to IL

by Peter Spiro

From Convictions, his argument that a Democrat president won't show any more respect for IL than Bush has, paired with an engaging episode of bloggingheads.tv with Heather Hurlbut (for those of you with busy lives, you can listen to Eric and Heather talk really fast with the new 1.4x function!). Eric takes his usual skeptical view of international law, arguing that while a Democrat would undoubtedly play up the happy talk it wouldn't make much difference in terms of real policy.

Maybe, maybe not. I see the argument here, and it's consistent with history. Democrats haven't been particularly supportive of IL when it comes to expending political capital (eg, Bill Clinton didn't go to bat very hard with unratified human rights conventions). Republicans haven't had a monopoly on sovereigntist thinking.

But perhaps things have changed. Even Bush himself seems to be knuckling under to IL, (obviously) not for any love of it, but simply because the cost-benefit calculation favors compliance. That's a big part of the Guantanamo story, as everyone casts about for a way to shut it down (including proposals from the likes of Jack Goldsmith and Matt Waxman to do it under cover of a new international legal regime). Cooperation on other fronts is urgent, and that cooperation will be more likely from a new administration (perhaps as much so from a McCain administration, on a Nixon-in-China basis). I agree with Heather Hurlbut's assessment that even ICC membership would be plausibly on the table, albeit only in a second term.

One thing I found puzzling in Eric's thinking here: in the diavlog, he suggests that Bush's rhetorical posture towards IL has itself been a mistake: "Bush should not have shown so much contempt for IL." But if IL doesn't amount to much, what difference does it make if you show contempt for it? And why should there be any consequence to that posture, in the same way that showing contempt for jaywalking laws doesn't cause anyone any problem? Do we need a theory of non-happy talk by way of an answer?

Update: A reader points me to this answer, from a 2000 paper by Goldsmith & Posner on moral and legal rhetoric in international relations:Because [international] talk is cheap, no one will be influenced by a nation’s claim that it is civilized, that is, no nation would adjust its prior belief about the probability that the speaker is civilized. But a nation that failed to send this weak signal would reveal that it belongs to the rogue type. In equilibrium all nations send the signal by engaging in the appropriate international chatter. Failure to engage in the correct form of chatter would reveal that one is a rogue state. In this pooling equilibrium everyone sends the signal because no one gains from failing to send the signal. Talk does not have any effect on prior beliefs about the likelihood that the speaker is civilized, but it is not meaningless, because failure to engage in the right form of talk would convey information that the speaker is not civilized.
George Bush, not civilized.

04.21.2008 at 4:20pm 1 Comments 0 Trackbacks

Friday, April 18, 2008

Bellinger Speaks Out on ATS Litigation

by Roger Alford

Last week State Department Legal Adviser John Bellinger delivered an important speech at Vanderbilt Law School on Alien Tort Statute litigation. The speech was a fascinating analysis of the future of ATS litigation, particularly its costs and benefits. To my knowledge, the speech is the first comprehensive statement ever by a senior Administration official, Republican or Democratic, about the legal and policy issues posed by ATS litigation.

Bellinger starts with a nice summary of the significant legal questions that remain unanswered since Sosa:

This continued litigation under the ATS reflects fundamental problems with how lower courts have approached these suits. These problems center on five key issues: First, whether the ATS applies extraterritorially – that is, whether a U.S. court can properly apply U.S. federal common law under the ATS to conduct that occurred entirely in the territory of a foreign State. Second, even if such a cause of action could properly be recognized, whether exhaustion of adequate and available local remedies in that foreign country should be a prerequisite to bringing an ATS suit. Third, whether corporations or other private entities may be held liable under the ATS for aiding and abetting human rights abuses perpetrated by foreign governments. A fourth issue is how to apply Sosa’s requirement that an international-law norm be sufficiently accepted and specific. And fifth, in what circumstances should courts dismiss suits based on what Sosa referred to as “case-specific deference to the political branches”?

Bellinger then highlights the costs and benefits of ATS litigation. The three principal benefits of ATS litigation he outlines are: (1) promoting accountability and providing a public voice to victims; (2) raising public and political awareness of human rights abuses; and (3) advancing U.S. participation in the development of customary international law. But these benefits, he asserts, are not legal arguments, and may not be as great as they appear.

As for the costs, Bellinger identifies three: (1) ineffective relief in most cases; (2) “diplomatic costs” and the (3) “lack of democratic checks and accountability.” I think the diplomatic costs of ATS litigation are particularly important and real, and rarely included in the calculus of whether to allow ATS litigation to go forward. As Bellinger notes, the United States is perceived by other countries to be a “rogue actor” by encouraging international civil litigation against other countries but resisting efforts to hold the United States criminally responsible before international tribunals.

We are perceived, accurately, as having in effect established an International Civil Court – a court with jurisdiction to decide cases brought by foreigners arising anywhere in the world, by the light only of its own divination of universal law, and through the extraterritorial application of U.S. law concerning rights and remedies. By itself, this can be grating enough to foreign governments. But it is especially so when taken together with both the fact that the U.S. often argues vigorously against the assertion by foreign courts of universal jurisdiction to hear cases involving U.S. officials, and the fact that the U.S. has declined to join the International Criminal Court because of concerns about that tribunal’s jurisdiction.

I think that argument of diplomatic costs has a tremendous amount of force. Of course, reasonable people may disagree as to whether that means we should curtail ATS litigation in the United States or welcome the possibility of international criminal litigation elsewhere against United States actors. The status quo, however, does appear duplicitous and understandably is perceived as such by other countries.

The absence of democratic accountability is another important cost of ATS litigation, and one that highlights the potential disconnect between Executive branch interests and the victims’ interests.

The Executive Branch has real interests in ensuring that as a matter of policy, ATS litigation does not interfere with its conduct of foreign relations. I have already noted foreign governments’ concerns about the scope of U.S. court jurisdiction under the ATS. In addition, recent ATS suits have been used by litigants to duplicate, replace, or proceed on top of the U.S. government’s systemic efforts to reform foreign government practices or help end foreign conflicts. Often, these suits are brought as class actions for all aliens injured by the challenged conduct, effectively asking the U.S. courts to serve as administrator of an international claims program for foreign nationals.

The solution, Bellinger suggests, is either for courts to exercise more restraint consistent with Sosa, or for Congress to introduce legislation that curtails ATS litigation in a manner akin to the Torture Victim Protection Act (which includes a statute of limitations and defined causes of action) or the Flatow Amendment to the FSIA (which allows for greater Executive branch involvement in limiting the scope of litigation).

The take away message is that Sosa’s attempt to rein in ATS litigation has largely failed and that if courts do not more carefully monitor this litigation it will continue to cause foreign relations problems.

It is an important message. I think it would be quite valuable for a scholar to carefully examine the various statements of interest and amicus briefs filed by the United States in over a dozen ATS cases, combined with the concerns expressed in Bellinger's speech to illuminate the foreign affairs concerns at stake in ATS litigation.

In sum, Bellinger appears to be echoing some of the concerns raised by the Supreme Court in Sosa. As the Court put it in that case, "Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution." Then again in a footnote the Court emphasized that a "possible limitation" to ATS litigation "is a policy of case-specific deference to the political branches.... In such cases [as the apartheid litigation], there is a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy." That foreign policy limit identified by the Court and now repeated by the State Department Legal Adviser has yet to be fully explored by the courts or scholars.

04.18.2008 at 12:26am 7 Comments 0 Trackbacks

Tuesday, April 15, 2008

US Will Release Bilal Hussein

by Kevin Jon Heller

Good:

The United States military said Monday that it would release an Associated Press photographer who has been jailed in Iraq without trial for two years on accusations of terrorism and kidnapping.

The announcement came after two rulings over the previous week by panels of Iraqi judges, who said that the photographer, Bilal Hussein, was covered by an amnesty law and should be released. But such decisions are not binding on the coalition forces in Iraq, and it was not clear at first whether the military would continue to hold him.

The judicial panels did not pass judgment on the guilt or innocence of Mr. Hussein, 36, who is an Iraqi citizen. The Associated Press has insisted that he did nothing wrong, but the military made no concession on that point Monday.

“After the action by the Iraqi judicial committees, we reviewed the circumstances of Hussein’s detention and determined that he no longer presents an imperative threat to security,” Maj. Gen. Douglas M. Stone said in a military press release. That release said that the general signed the order to free Mr. Hussein, who will be released on Wednesday.

[snip]

Officials of The Associated Press have said that Mr. Hussein was detained to keep him from taking pictures of the fighting. He was one of a team of photographers who won a Pulitzer Prize for their work in Iraq.

The military did not allow him to go before a court until last November.

Amusing -- and unconvincing -- spin by Major General Stone. What, the military couldn't review the "circumstances of Hussein's detention" on its own?

04.15.2008 at 7:18pm 6 Comments 0 Trackbacks

Monday, April 14, 2008

Has John Bolton Gone Soft on International Law?

by Peter Spiro

Okay, that's a joke. But I'm not sure quite what to make of Global Governance Watch, a new joint project of the American Enterprise Institute and the Federalist Society. (Bolton keynoted today's launch.)

On the one hand, you just know there has to be an anti-internationalist strategem at work here, and there is some evidence to back it up (such as this item calling out the Europeans as hypocrites on the UNSC role on Iraq and Kosovo). On the other hand, the project's website seems to play most of its material straight, in a just-the-facts mode. See for instance this description of the Convention on the Rights of the Child — as far as I can tell, there isn't a hidden "ratifying this treaty would mean the end of the world as we know it" kind of message (unless of course there's some sort of low-wattage subliminal banner saying exactly that!). The site even links to UN fact sheets in a non-ironic way!

So what gives? Have the sovereigntists finally gotten wise to the fact that international law and regulation are now too real to wish away, and that they had better bone up on IL rather than keeping on the blinders? If so, it is a retreat to a more defensible perimeter, but a retreat nonetheless, and a significant one at that.

04.14.2008 at 10:33pm 2 Comments 0 Trackbacks

Wednesday, April 9, 2008

Bilal Hussein To Be Released -- Maybe... (UPDATED)

by Kevin Jon Heller

Finally, some good news out of Iraq:

An Iraqi judicial committee has dismissed terrorism-related allegations against Associated Press photographer Bilal Hussein and ordered him released nearly two years after he was detained by the U.S. military.

Hussein, 36, remained in custody Wednesday at Camp Cropper, a U.S. detention facility near Baghdad's airport.

A decision by a four-judge panel said Hussein's case falls under a new amnesty law. It ordered Iraqi courts to "cease legal proceedings" and ruled that Hussein should be "immediately" released unless other accusations are pending.

The U.S. military referred the case in December to an investigating judge, who reviewed the evidence and submitted his findings to the Central Criminal Court of Iraq to determine whether the case should go to trial.

In February, however, parliament approved a law providing amnesty to those held for insurgency-related offenses — including detainees such as Hussein who have never been convicted.

The committee from the Iraqi Federal Appeals Court ruled Monday that allegations against Hussein were covered by the Anti-Terrorist Law and were subject to the amnesty law.

I have previously discussed the Bush administration's shameful attempts to engineer Hussein's conviction, as has — in far more depth — Scott Horton. It will be interesting to see what the administration does now; as the article notes, Hussein is actually in U.S. military custody. As the AP article notes, it may not let him go without a fight:

U.S. military authorities have said a U.N. Security Council mandate allows them to retain custody of a detainee they believe is a security risk even if an Iraqi judicial body has ordered that prisoner freed. The U.N. mandate is due to expire at the end of this year.

Also, the amnesty committee's ruling on Hussein may not cover a separate allegation that has been raised in connection with the case.

[snip]

In response to a question from the AP, Pentagon spokesman Bryan Whitman said it "will be up to officials in Iraq" on whether to release Hussein. The decision, he said, will be "based upon their assessment as to whether he remains a threat."

Under Iraq's 2-month-old amnesty law, a grant of amnesty effectively closes a case and does not assume guilt of the accused.

Hussein has been held by the U.S. military since being detained by Marines on April 12, 2006, in Ramadi, about 70 miles west of Baghdad. Throughout his incarceration, he has maintained he is innocent and was only doing the work of a professional news photographer in a war zone.

The amnesty committee's decision covers various allegations by the U.S. military against Hussein, including claims he was in possession of bomb-making material, conspired with insurgents to take photographs synchronized with an explosion and offered to secure a forged ID for a terrorist evading capture by the military.

The committee may still be reviewing a separate allegation that Hussein had contacts with the kidnappers of an Italian citizen, Salvatore Santoro, whose body was photographed by Hussein in December 2004 with two masked insurgents standing over Santoro with guns.

[snip]

The amnesty committee — or any Iraqi institution — cannot force the U.S. military to release or turn over any of the estimated 23,000 detainees it holds in Iraq. But a provision in the amnesty law states that the Iraqi government "is committed to take the necessary measures to move the arrested people" from U.S. control.

More later, as additional information becomes available...

UPDATE: Scott Horton provides some background on the separate allegation involving Santoro, which turns out -- not surprisingly -- to be as baseless as the other ones:

Other than the terrorism charges, the military had questioned the photographer’s presence on the scene following the abduction and killing of an Italian, Salvatore Santoro. I worked as Bilal Hussein’s counsel in 2006, and during this time I conducted a comprehensive review of the very vague allegations surrounding Santoro’s death, reviewing the documentary evidence with experts and interviewing the available witnesses. The AP photographer had been stopped with others at a check point and asked to take “trophy photos” of Santoro, who had been killed earlier in the day. A study of the photos and examination of other witnesses bore out the account, and military investigators also acknowledged off the record that there was no real basis for charges. But they continued to raise them nonetheless — apparently because they were under relentless pressure to come up with some charges.

04.09.2008 at 5:24pm 3 Comments 0 Trackbacks

Tuesday, April 8, 2008

Eric Lichtblau's Bush's Law: Has American Justice Been Remade, or Just Bungled?

by Peter Spiro

NY Times reporter Eric Lichtblau has published an account of DOJ during the Bush years, Bush's Law: The Remaking of American Justice, which we can add to the growing shelf of books looking at the legal aspects of Bush Administration national security policy. It mostly hews to the formula: bad things done, people hurt, the Constitution trashed.

The book is a taut read; Lichtblau is a talented reporter. The material on the NSA surveillance regime is the centerpiece, a story Lichtblau broke with James Risen. But I don't think the material comes anywhere close to its "All the President's Men" aspirations (Jeff Rosen has a contrary take on that). DOJ looks more like a bunch of bumblers than serious heavies, and the law seems to have survived the test mostly intact. It's low theater rather than high. That's not to say that there haven't been many collateral casualties, but at least at home nothing like during the McCarthy era (most of us would have lost our jobs by now).

For more, see my review in the New York Observer here.

04.08.2008 at 2:02pm 0 Comments 0 Trackbacks

Monday, April 7, 2008

Has Jack Goldsmith Gone Soft on International Law?

by Peter Spiro

This among his useful suggestions as to how to fix the errors of Bush in anti-terror policy in a Slate column last week:

• Work with allies to establish an international legal framework for terrorists. Last week, John McCain called for a "new international understanding on the disposition of dangerous detainees under our control." This is a good idea, not because of a squishy commitment to internationalism but because an international consensus on how to treat detainees would foster deeper international cooperation crucial in thwarting terrorists.

To achieve this goal, the United States must stop talking about which international laws do not govern the detention of terrorists and start talking about which ones do. . . .

Okay, so Jack's still against squishiness. But here's the friendly challenge: how to reconcile a position that sees any value in international humanitarian regimes with the premise of his and Eric Posner's The Limits of International Law, which dismisses IL as a mostly marginal constraint on state action (see for instance pp. 85-88). The Limits is not very keen on multilateral agreements insofar as they are not subject to reliable sanctions by independent third parties. Has something changed, or is there some about the anti-terror context which makes them a meaningful vehicle for modifying state behavior?

04.07.2008 at 10:30am 3 Comments 0 Trackbacks

Sunday, April 6, 2008

Playing Up the Fine Print: Ackerman and Hathaway on the War's "Expiration Date"

by Peter Spiro

Bruce Ackerman and Oona Hathaway had this op-ed in Saturday's WaPo arguing that congressional authorization for the Iraq deployment will expire with official the UN mandate for the multinational force come January 1, 2009. The piece works from the limitation in Congress' 2002 joint resolution approving the use of force only to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq." The first hardly works any more, note Ackerman and Hathaway, and the second won't as of next winter.

It's a nice catch, and the argument would hit home if we were dealing with anything other than the use of force. But what if the new year comes around with neither a new UNSC resolution or modification of congressional authorization? The answer: nothing! As with the War Powers Resolution (which purported in these terms to include a default "expiration date" on all presidential uses of force), you're not going to win a war's end on legalisms. The only thing that will do the trick is an affirmative qualification or withdrawal of congressional authorization going forward, something that proved impossible to secure even when the war still dominated the front page.

04.06.2008 at 10:41pm 4 Comments 0 Trackbacks

Wednesday, April 2, 2008

The Use of Statutory Construction in Defining Torture

by Roger Alford

Here is a key excerpt from pages 36-39 of the March 2003 "Torture" Memorandum:

Section 2340 defines the act of torture as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control....

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary of the English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.). Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are, likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent, impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

If there was one principal complaint about the torture memos, it would be about statutory construction. When critics ridicule the memos for equating torture with organ failure, they are doing so because they disagree with how the statute was interpreted.

So let's look at the use of statutory construction in defining torture, and especially the phrase "severe pain." It is worth noting that the memo relied on only two rules of statutory construction to define "severe pain." First it focused on plain meaning and cited dictionary definitions. Second, it used the rule of in pari materia, which says that when a statute is ambiguous its meaning may be determined in light of other statutes on the same subject. Much of the criticism has been on the misuse of the second rule, arguing that a statute about health benefits is not on the same subject as a statute about torture.

But little has been said of other rules of statutory construction that were ignored. I think it would be worthwhile to open up discussion and identify other rules of statutory construction that could (and arguably should) have been used in the torture analysis. Legislative intent is one obvious rule of construction. Avoidance of an unconstitutional interpretation is another. The Charming Betsy doctrine that would require the statute to be read consistent with international law is yet another. A fourth might be judicial interpretations (at home and abroad) of the Convention Against Torture. Previous interpretations of the statute would be a fifth. The rule of ejusdem generis is a sixth, which would have led to an interpretation of "severe" that could apply to both physical and mental pain. Are there others that come readily to mind? For example, is there any room to argue for Chevron deference or other rules of statutory construction?

04.02.2008 at 4:21pm 12 Comments 0 Trackbacks

Tuesday, April 1, 2008

Chuck Hagel on The Daily Show

by Kevin Jon Heller

I've always had a soft spot for Chuck Hagel (R-Neb.), both for his evident intelligence and for his willingness to criticize the Bush administration's bungling of all things Iraqi. After last night's interview with John Stewart on The Daily Show, though, I think I'm officially smitten:

I was particularly impressed by Hagel's willingness to openly disagree -- in no uncertain terms -- with McCain's stay-the-course approach to Iraq. That certainly won't win him any friends in his party; after all, he was co-chairman of McCain's presidential campaign in 2000.

Now if Hagel would only endorse Obama, whom he has already described publicly as the candidate having the best chance of bringing the country together...

04.01.2008 at 9:12pm 2 Comments 0 Trackbacks

Monday, March 31, 2008

US Military Thought about Recruiting -- or Hiring -- Bloggers

by Kevin Jon Heller

I'm looking at you, McGuinness:

A study, written for U.S. Special Operations Command, suggested "clandestinely recruiting or hiring prominent bloggers."

Since the start of the Iraq war, there's been a raucous debate in military circles over how to handle blogs — and the servicemembers who want to keep them. One faction sees blogs as security risks, and a collective waste of troops' time. The other (which includes top officers, like Gen. David Petraeus and Lt. Gen. William Caldwell) considers blogs to be a valuable source of information, and a way for ordinary troops to shape opinions, both at home and abroad.

This 2006 report for the Joint Special Operations University, "Blogs and Military Information Strategy," offers a third approach — co-opting bloggers, or even putting them on the payroll.

It's a remarkably cynical document, concerned solely with getting the military's message across at any cost. Here's a taste:

Information strategists can consider clandestinely recruiting or hiring prominent bloggers or other persons of prominence... to pass the U.S. message. In this way, the U.S. can overleap the entrenched inequalities and make use of preexisting intellectual and social capital. Sometimes numbers can be effective; hiring a block of bloggers to verbally attack a specific person or promote a specific message may be worth considering. On the other hand, such operations can have a blowback effect, as witnessed by the public reaction following revelations that the U.S. military had paid journalists to publish stories in the Iraqi press under their own names. People do not like to be deceived, and the price of being exposed is lost credibility and trust.

I hereby pledge that, as a blogger, I have not been recruited, purchased, or "made" by the US military (or the mafia, for that matter). Who will join me?

Hat-Tip: Wired.

03.31.2008 at 11:11pm 4 Comments 0 Trackbacks

Wednesday, March 26, 2008

The End of "Respectful Consideration" and the Birth of Disaggregated Deference

by Roger Alford

There is much one could say about Medellín, but I want to focus on the meta-question of what this decision portends for the future of international courts and tribunals. While the domestic effect of ICJ decisions is now cast into serious doubt (at least in terms of direct enforcement), I think there is far more reason to be hopeful than some are suggesting.

First, the Court emphasized that the effect to be given to international courts and tribunals depends first and foremost on whether there is a federal mandate to respect such decisions. It emphasized that such a federal mandate might be found in a self-executing treaty or a congressional statute. The Court said it agreed “as a general matter [that] an agreement to abide by the result of an international adjudication can be a treaty obligation,” but found that “the particular treaty obligations on which Medellín relies do not of their own force create domestic law.” (p. 24). The Court also agreed that a statute could have the same effect. “The judgments of a number of international tribunals enjoy a different status because of implementing legislation.” (p. 25).

Second, the Court fully embraced the principle that domestic effect should be given to decisions of international courts and tribunals if that is what federal law requires. As I have written elsewhere, this domestic effect falls along a continuum of deference. The Court cited with approval the “full faith and credit” approach of 22 U.S.C. 1650a, which treats ICSID decisions exactly the same as domestic court decisions. (p. 25). It also cited with approval an “arbitration model” under the New York Convention that accords great deference to international arbitral decisions pursuant to the Federal Arbitration Act. (p. 26). The decisions of the Iran-United States Claims Tribunal are the best example of an international tribunal that falls within this sort of approach. Although somewhat less clear, the Court also appears to accept a “foreign judgment” model, provided the international tribunal is rendering monetary awards (rather than injunctive relief) and provided the international decision does not contravene domestic law. (p. 26). Mass claims tribunals such as the UNCC are possible candidates for such a foreign judgment model. (It is also worth noting that the citation in footnote 1 to the La Abra case involving the U.S.-Mexico Claims Commission--one of the few Supreme Court decisions utilizing a foreign judgment model for an international tribunal decision--may suggest that if a foreign judgment model is to be employed, again the treaty (or implementing legislation) must mandate that approach.)

Third, the Court effectively relegated ICJ decisions to the same status as the decisions of the WTO Appellate Body. Direct recognition of WTO decisions is precluded by implementing federal legislation (19 U.S.C. 3512(c)). Under this implementing legislation, the political branches must decide what domestic effect to give to WTO decisions. Apparently the same now applies to ICJ decisions. ICJ decisions may be given domestic effect, but the mechanism is through the political branches. The President tried to do that, but failed in his choice of mechanism. Obviously if it so desired, Congress could achieve what the President’s Memorandum did not. That frequently happens with WTO decisions, with Congress amending the law to bring the United States into conformity with our international obligations as interpreted by WTO Appellate Body decisions.

Fourth, the Court did not address the issue of indirect recognition of decisions of international courts and tribunals. On this score nothing has changed. Charming Betsy remains vibrant and there is every reason to think that domestic courts in construing statutes will continue to rely on decisions of international courts and tribunals (including the ICJ) to interpret international law. The same goes for using international decisions as persuasive authority to understand the content of international law in matters such as ATS claims or boundary disputes.

We are witnessing the end of the era of “respectful consideration” and the birth of disaggregated deference. That is, the degree of deference domestic courts should accord to decisions of international courts depends on what federal law (i.e., self-executing treaties or implementing legislation) requires. That mandate may be more or less than "respectful consideration." In the absence of such a federal mandate, international tribunal decisions will not have direct effect, but they will continue to enjoy indirect recognition as tools of interpretation.

All Related Posts (on one page) | Some Related Posts:

Medellin and Youngstown
A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!
Justice Stevens Almost Gets It Right...
Comment on Medellin
The End of "Respectful Consideration" and the Birth of Disaggregated Deference
Further Thoughts on Medellin...
Medellin: My Early Thoughts
Medellin: An Insta-Symposium
Texas Wins Medellin

03.26.2008 at 12:05am 3 Comments 0 Trackbacks

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Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics

Contributors

Guest Writers

Opinio Juris Inaugural On-Line Symposium: Challenges to Public International Law

Special Features

Recent Posts

More links here

Subscribe

Search Posts

Categories

Archives

Blogroll

Opinio Juris Alumni

Site Statistics

Thursday, May 15, 2008

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Tuesday, May 6, 2008

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Monday, March 31, 2008

Wednesday, March 26, 2008

A weblog dedicated to reports, commentary, and debate on current developments and scholarship
in the fields of international law and politics