Saturday, January 22, 2005

Where John Norton Moore's Column Went Wrong

Just to prove that I am willing to criticize rightward as well as left, my target du jour is Professor John Norton Moore of the University of Virginia Law School, who published a blistering column in Slate yesterday slamming the D.C. Circuit for dismissing a lawsuit by U.S. soldiers who had suffered mistreatment and abuse in Iraq as prisoners of war during the Gulf War. Moore is one of the giants in the IL academic world and criticizing him is another good way to ensure I'll never get a job at Virginia (I torpedoed my already minuscule chances at a job at Yale the other day here ). Still, Professor Moore deserves to be tweaked for this piece, which is not exactly a model column for those looking for a sober, credible analysis by a well-respected professor of international law.

Moore argues that the U.S. government is trying to block his clients from collecting on the judgment they won against the Iraqi government for abuse suffered as POWs in the first Gulf War in order to avoid embarrassment over the Abu Ghraib prison abuse scandal.

As insightful members of Slate's Fray point out, in making this charge, Moore points to no particular evidence and somehow neglects to mention that: (1) his clients aren't asking for chump change, they want $959 MILLION; and (2) the Court decision dismissing the lawsuit is based not on deference to the Executive Branch's statement that the lawsuit interferes with foreign policy but is actually based on the application of binding precedent in the DC Circuit. See Acree v. Republic of Iraq, 370 U.S. 41 (D.C. Cir. 2004). Moore's characterization of the DC Circuit's analysis is over the top:

Even the infamous Korematsu decision in World War II, legalizing the shameful incarceration of Japanese Americans, was not reached by simply ignoring the law and pleadings in its zealous support for a wartime executive branch—as did the Court of Appeals here.

Let me gently suggest that the analogy to Korematsu doesn't quite work here. In Korematsu, the Supreme Court (wrongly in my view) deferred to the combined will of the President and Congress to intern Japanese Americans. Key to the Court's decision was its judgment that it could not second-guess the President's military judgment about the supposed (and turns out non-existent) danger of letting Japanese Americans remain on the West Coast. Korematsu is widely regarded as wrongly decided and one of the biggest mistakes ever made by the Supreme Court. I am going to go out on a limb and guess that this case won't reach those dubious heights.

Here, the D.C. Circuit makes some noises about the importance of the case for foreign policy, but its decision is wholly based on its reading of two federal statutes, and of previous cases interpreting those statutes, and it does not give any deference at all (nor should it) to the executive branch's reading of those statutes. The President's judgment about the foreign policy interests here is essentially irrelevant. And more to the point, I just don't see a decision interpreting prior statutes and precedent to dismiss a civil lawsuit is quite the same as a decision upholding the evacuation and internment of 100,000 mostly U.S. citizens in the face of blatant evidence of racial discrimination. Maybe I'm missing something.

It is possible that Moore is right about the law, but he is wildly overstating the case when he writes that "Whether or not the [Supreme] court agrees to hear this case could well seal the fate of American GIs held as POWs in future wars." He adds that:

If the Court of Appeals decision stands in the Acree case, the consequences will be catastrophic. Future tyrants will hear the message, like a fire bell in the night, that the United States has little concern for its own POWs. Morale will decline in our armed forces as the reality sinks in that our government has sided with their torturers over them. A core enforcement mechanism of the POW convention, as well as our reliability as a treaty partner, will be undermined by our remarkable decision to "absolve" a torturing state in violation of the convention.

This is just wacky. POWs deserve as much protection as the US government can provide them up to and including dangerous and risky rescue missions, and probably even more than that. But threat of a lawsuit against sovereigns cannot possibly be a "core mechanism", especially because the possibility of such lawsuits against sovereigns has existed as part of U.S. law for exactly 8 years (whereas the Geneva Conventions have been around for decades). Rather, the traditional enforcement mechanism has been reciprocity: we promise not to abuse your soldiers if you promise not to abuse ours (and the converse: if you abuse our soldiers, its open season on yours). Or, perhaps less grimly, if you abuse our soldiers, we want, as part of the peace deal, that you turn over all people responsible for those actions and we'll put them on trial in front of our military commissions, put them in jail or execute them

Moore is no doubt on the right side here. His 17 POW clients deserve some compensation (although $959 million is a bit much) for their injuries and justice for the crimes committed against them. But sometimes, overzealous representation of your clients can backfire and Moore's misleading polemic veers dangerously close to doing so.

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