Saturday, January 22, 2005

September 11 Civil Suit Against Saudi Arabia Dismissed

Although this judgment was released a few days ago, it is still worth noting that a federal district court in New York this week issued a ruling in a mammoth civil suit by family members of September 11 victims against various entities for the attacks. The most important defendant to be dismissed on the grounds of sovereign immunity are various elements of the government of Saudi Arabia, which is alleged to have helped finance the attacks. The legal significance of this decision is likely to be its important interpretations of the Foreign Sovereign Immunities Act. I thought I would just note that it also casually endorsed the somewhat controversial "aiding and abetting" theory of liability for violations of international law that is at the heart of many Alien Tort Statute lawsuits against corporations. The decision will of course be appealed. (Thanks to Roger Alford for the heads up on this case).

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.

Friday, January 21, 2005

Posner v. Hathaway on the Value of International Law

This week the Legal Affairs Debate Club hosted an interesting discussion between Eric Posner and Oona Hathaway on the value of international law. The central issue explored: If international courts and tribunals have been such a failure, why do states keep creating and joining them?

International Criminal Court Watch

I'm no fan of the ICC, but it is still worthwhile to keep an eye on what it is up to. Thus far, the ICC is fairly dormant, although they do have a few referrals arising out of the various conflicts in Africa. The ICC announced yesterday the assignment of this case from the Central African Republic to a pre-trial chamber. It will be interesting to follow the ICC process in this case and its other two cases to see how it develops. How the ICC handles its existing docket will make a difference in whether big military powers like the U.S., Russia, and China ever join.

State Sovereignty and International Relations Theory

Chris's colleague Timothy Zick has posted an article ,"Are The States Sovereign?" (January 2005). Washington University Law Quarterly, Vol. 83, No. 1, May 2005. The article analyzes the sovereignty of the states of the Union through the lens of international relations theory. This certainly sounds like an interesting approach to a devilishly complicated problem. Although IR theory is not usually described as illuminating or clarifying, the law governing the sovereignty of the states of the Union may be the one area that IR theory can help. It is likely that the Founders saw the states of the Union as sovereigns governed by international law to some degree, as Thomas Lee argued here. I look forward to reading Professor Zick's article in full.

Thursday, January 20, 2005

Breyer v. Scalia: It's Scalia in a TKO

Like Kenneth Anderson, it's taken a while for me to digest the Breyer-Scalia "conversation" on foreign law and constitutional interpretation from last week. As I hinted at earlier, I was disappointed with Breyer's comments because they simply offered no coherent rationale for why he feels it necessary or useful to cite foreign law when interpreting the Constitution. I'm sorry, Peggy, but the fact that law may or may not be the product of a "messy conversation" is simply not good enough. Law, especially constitutional law, may in fact be the product of a messy conversation but it simply can't be true that all materials, ranging from Gilbert and Sullivan to the Federalist Papers, have equal weight in this conversation. Scalia has a theory as to why the Fed Papers are useful, and Gilbert and Sullivan is not. Breyer doesn't have one. The best he can come up with is that if "... lawyers are interested in this, the judges are interested in it, that they'll refer to it, that they'll read it, that they'll use it as food for thought, I think is fine."

Breyer might have distinguished between international law and foreign law and suggested reasons why the constitution should conform as much as possible to international law. But he did not. He might have suggested that, because many postwar constitutions are modeled (in part) on the U.S. Constitution, courts interpreting those constitutional provisions taken from the U.S. Constitution should be given persuasive weight in, say, the same way that state courts interpreting state constitutions might. But he did not.

But I suppose because he did not do any of this, critics of foreign law in constitutional interpretation might take heart from the Breyer talk because it's clear he does not consider foreign law (and probably international law) binding with respect to constitutional interpretation. He doesn't really even think it is very important. In fact, in his answer to the very last question, he seemed to recognize the real problem that heavy reliance on foreign law might create.

...the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government. That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position.

And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.

He then adds, somewhat gratuitously.

of course, I don't think it stops me from looking at the foreign opinions -- (laughter) -- and even citing them. (Applause.)

It is worth noting that Scalia had no response. He didn't need one.

Where Koh's Testimony Went Wrong

I'm a big fan of Harold Koh, who was one of my professors in law school, because he serves as a great role model for all law students interested in international law, government service, and legal academia. That said, I find one important element of his critique very unconvincing.

Let me put aside his arguments about whether the controversial August 1, 2002 OLC memo defined torture too narrowly and whether the Geneva Conventions applied in Afghanistan. The first is an extremely difficult question for which little authority exists in the form of, say, caselaw. It has also been the subject of an interesting debate between Heather Macdonald and Marty Lederman. (I judge Lederman the winner in a split decision, but I think they are both wrong and that Stuart Taylor has the best take on all of this, as usual.). The second question seems pretty unimportant because Koh agrees that Al Qaeda terrorists do not receive POW status under the Geneva Convention and the President has agreed to treat all detainees humanely whether or not they are POWs.

Even if Koh is right on his two other criticisms of Gonzales (which I doubt), he plainly overreached in his rejection of the so-called "commander in chief" argument.

The idea that there is some sphere of executive commander in chief authority that is constitutionally protected from congressional powers is hardly radical in the way that Koh suggests. Walter Dellinger, Clinton's OLC chief and well-known law professor, wielded this argument to dissuade Congress from attempting to legislate prohibitions on U.S. cooperation with international organizations.

It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces. True, Congress has the power to lay down general rules . . . but such framework rules may not unduly constrain or inhibit the President's authority to make and to implement the decisions that he deems necessary or advisable for the successful conduct of military missions in the field, including the choice of particular persons to perform specific command functions in those missions. (emphasis added)

Koh further slams the OLC memo's "stunning failure of lawyerly craft" because it did not cite the landmark case of Youngstown Steel & Tube Co. v. Sawyer, which Koh says "spelled out clear limits on the President's constitutional powers." Failures of "lawyerly craft" seems endemic at the OLC, because Dellinger's Clinton-era OLC memo also mysteriously failed to cite Youngstown. And for good reason. Youngstown may be a great and even sensible case, but it can hardly be read to "spell out clear limits" when the key concurrence describes the President's powers as "not fixed, but fluctuat[ing]" and where the President's power to act against the will of Congress is not prohibited, but is simply "at its lowest ebb."

I may be nitpicking. But this is an important constitutional principle that is quite different and separate from the battles over the Torture Convention and the Geneva Conventions. And it deserves better analysis than Koh and other critics have provided here.

Wednesday, January 19, 2005

Harold Koh's Testimony on Gonzales Nomination

The testimony of Harold Koh, the Dean of Yale Law School and former Assistant Secretary of State for Democracy, Human Rights, and Labor, before the Senate Judiciary Committee on the nomination of Alberto Gonzales has been made available here.

The Gonzales nomination and the related issues of the "Torture Memoranda" have been discussed at length in many public fora. I point out Koh's testimony, though, as I find it both persuasive on the specific issues of the "Torture Memos" and also relevant to a broader discussion of the relation of international law to foreign policy. Koh discussed three issues: (a) the illegality of torture and cruel, inhuman, and degrading treatment, (b) the scope of the President's powers to authorize torture and cruel treatment by U.S. officials, and (c) the applicability of the Geneva Conventions on the Laws of War to alleged combatants in U.S. custody. He concluded that the memos attempted to marginalize accepted interpretations of, and the policy behind, the Torture Convention, that they overstated the effects of the President's powers as Commander-in-Chief, and that they set a dangerous precedent concerning the U.S. interpretation of the Geneva Conventions--one that could put U.S. soldiers at risk.

Beyond the specific issue of the Gonzales nomination, Koh's testimony does an good job setting out a view of how ignoring the interaction of domestic laws with treaties and international norms is not only legally questionable, but stategically and politically unsound:

Taken together, Mr. Gonzales' legal positions have sent a confusing message to the world about our Nation's commitment to human rights and the rule of law. They have fostered a sense that we apply double standards and tolerate a gap between our rhetoric and our practice. Obviously, our country has faced a dangerous threat since September 11, and we expect our leading officials to respond. But we should not discount the enormous costs to our reputation as a leader on human rights and the rule of law from the perception that we have waged a war on terror by skirting the Torture Convention, upsetting constitutional checks and balances, opening loopholes in the Geneva Conventions, and creating extra-legal persons and extra-legal zones.

While disregarding international obligations and norms can give you wider freedom of movement in the short run, the domestic and international backlash can narrow your options in the medium or long term. As Condoleezza Rice and the rest of the second term foreign policy team start their new jobs, I hope they remember Harold Koh's wise counsel from the Gonzales hearings.

Eric Posner Presentation at Columbia Law School

As a follow-up to Julian's earlier post, I wanted to note that one of the co-authors of the recent paper assessing bias at the ICJ, Prof. Eric Posner of ther University of Chicago School of Law, will be speaking on this topic at Columbia Law School in New York on January 24th at 4:10 pm. The talk will be in Jerome Greene Hall, Room 107.

Following is the abstract:
Abstract - The International Court of Justice has jurisdiction over disputes between nations, and has decided dozens of cases since it began operations in 1946. Its defenders argue that the ICJ decides cases impartially and confers legitimacy on the international legal system. Its critics argue that the members of the ICJ vote the interests of the states that appoint them. Prior empirical scholarship is ambiguous. We test the charge of bias using statistical methods. We find strong evidence that (1) judges favor the states that appoint them, and (2) judges favor states whose wealth level is close to that of the judges’ own state; and weaker evidence that (3) judges favor states whose political system is similar to that of the judges’ own state, and (4) (more weakly) judges favor states whose culture (language and religion) is similar to that of the judges’ own state. We find weak or no evidence that judges are influenced by regionaland military alignments.

Tuesday, January 18, 2005

Speech at the CIA


I would place CIA officials in much the same category as FSOs, particularly those working under FSO cover at foreign embassies. Limitations on the speech of CIA officials are arguably more important, since the protection of intelligence sources and methods is crucial to our national security. That said, I have no problem with the publication of Michael Scheuer's book, Imperial Hubris, because it was, in fact, cleared and authorized by his employer in accordance with the law.

Mark Zaid's review of Imperial Hubris includes a discussion of these CIA's regulations, which are even more onerous than the clearance process at State. And, quite sensibly in my view, the CIA has the right to enforce those regulations even against ex-employees who fail to get clearance for publishing certain classified information. (See Snepp v. United States, and this summary of the process from the CIA's website; yes, they even review cook books!) Zaid notes that Scheuer's book first came to publication under "anonymous" at the behest of the CIA, which had previously authorized Scheuer, an "overt" analyst, to give on-the-record interviews about Al Qaeda, Scheuer's area of expertise. It was only after he resigned from the CIA that Scheuer was free to promote the book, something the CIA had prohibited (well within its rights) while he was still on the payroll. Since Porter Goss took over as DCI, the CIA is apparently looking into revising the rules under which Scheuer's book was approved.

I do think there is one slight distinction worth noting about the clearance process at CIA and that at State, and it lies in the nature of the functions of those agencies. The work of diplomats is largely out in the open; their function is to be the public face of the United States and to engage with their foreign counterparts . The CIA's work is by design largely hidden. The rationales underlying each agency's regulation of employee speech reflect that distinction.

Defending the Diplomad (Sort of)


I can't resist just a quick note in defense of one of my favorite blogs, the Diplomad, which you slapped down quite effectively here. I don't have any reason to doubt that you are right that FS rules and FS norms that are being violated here. But I don't see why FSOs should be prevented from anonymous sniping at their bosses while CIA analysts can write whole books on this to wide applause? Is there something special about the Foreign Service that we are trying to protect here?

Everyone is Doing It: The WTO Plans Reform

Just so they are not left off the international institution reform bandwagon, the WTO released a study yesterday by a panel of eminent persons proposing certain reforms. The news coverage has been light, especially when compared to the possible reforms at the UN, but this could be just as significant in many ways.

I will blog about the report in more detail later, but it is worth noting for now that the study's discussion of whether the WTO infringes on national sovereignty (which appears to be written by Georgetown law prof John Jackson). The study eschews the strategy of, say some UN advocates, who often pooh-pooh the sovereignty issue as ravings of folks like Pat Buchanan or Ralph Nader. Instead, it adopts a pragmatic balancing that focuses on the costs and benefits of reducing sovereignty.

Ultimately what counts is whether the balance between some loss of "policy space" at the national level and the advantages of cooperation and the rule fo law at the multilateral elvel is positive or negative. Our view is that it is already positive for all WTO members and will increasingly be so in the future.

Personnel Changes at the UN

Kenneth Anderson has an interesting take on today's news reports about changes at the UN and about UN reform more generally.

Ending World Poverty

The UN Millennium Commission issued its report yesterday on how to combat world poverty. The bottom line: extreme poverty and death by preventable disease can be sharply reduced over the next decade by doubling the amount the developed world spends on aid to the poorest countries. In real terms, that means increasing development assistance from less than .25 percent of GDP to around .50 percent of GDP. In anticipation of the criticism from that hand outs to poor countries don't work, the proposal also calls for coordinating assistance with market-oriented solutions such as reductions in import restrictions on goods from sub-Saharan Africa and promotion of free trade. Some early comments on the report can be found here and here. The release of the report appears to have been timed with statements of support from the IMF and World Bank.

Diplomatic Discourse and Dissent

One of Julian's earlier postings linked to an anonymous group of Republican Foreign Service Officers who appear to have a lot to say -- most of it in the form of invective and ad hominem attacks -- about the efficacy of UNICEF, foreign aid programs generally, and their fellow American diplomats. The blog would hardly be worth mentioning, except for the fact of its very existence. Assuming that these bloggers are who they say they are, is what they are doing proper? This is an interesting question for anyone teaching foreign relations law and those of you who advise students on careers in the Foreign Service.

As a former FSO myself, I feel strongly that the Foreign Service should reflect America's geographical, racial, religious, cultural, socio-economic and, yes, political diversity. FSOs have a difficult but crucial role to play in our foreign policy-making process: to interpret American policy and, increasingly, business and societal trends, to their foreign counterparts and interpret and analyze foreign political, economic and cultural trends for policy makers in Washington. They also play a crucial role of protecting the interests of the 2 million or so Americans living overseas. (And you need look no further than the names of FSOs killed while in service of United States etched in marble in the lobby of the State Department for a grim reminder of the sacrifices American diplomats and their families have made in protecting American interests.) Diversity of perspectives is crucial to carrying out effectively the reporting and representation aspects of the job. But the very nature of that role requires FSOs to limit public statements to the contours of US policy as laid out by the President in the exercise of his foreign policy powers.

The rules governing what FSOs can and cannot say in public recognize this need and quite explicitly require approval of public statements, even those made in an "unofficial" or "private capacity", if the statements touch on "official matters", which would include just about any international policy issue. (Full text of the regulation, 10 FAM 121.1, is available on the State Department website.) The reality is, when an FSO is serving overseas, she is rarely, if ever, in a setting that is not "official" in nature. What, then, is an FSO permitted to do if she disagrees with the President's policies?

During the Vietnam war, in response to complaints that dissenting views on policy had been shut down at the intermediate level before reaching senior policy makers in Washington, the Department instituted the "dissent channel," which allows any State Dept employee, regardless of rank, to have her views heard by the Secretary and Under Secretaries. (Here is a brief history of the dissent channel and here is a copy of the full policy, which includes protections against reprisals for using the channel.) It has been invoked hundreds of times in the past three decades, and saw quite a bit of traffic during the early 1990s when many FSOs felt frustrated by the lack of a US military response to atrocities in the Balkans.

If attempts to change the policy through use of the dissent channel fail, an FSO has only one resort: resignation. Indeed, FSOs have made public their resignations due to disagreements over the Vietnam war , failure to intervene in Bosnia, and, most recently, the invasion of Iraq. (Here is an illustration of how an FSO handled disagreement, dissent and finally resignation from the Foreign Service over opposition to Iraq policy.) Otherwise, an FSO's job is to keep her personal views private and carry out the agenda that the President and Secretary of State have set out. It's part of the deal you sign onto when you take the oath of office.

Admittedly, there are times when FSOs, particularly those in more senior policy-making positions, have ignored the rules and "gone public" on policy disagreements without Department approval and without invoking the dissent channel. (Unauthorized leaks were almost de rigueur during the Vietnam era, and some observers have claimed that the dissent channel was in part designed to keep disagreement out of the papers.) Isn't the blogosphere the same thing? I don't think it is. Journalists generally talk to more than one source in reporting the story. The FSO that goes on "background" with a reporter is not guaranteed a public statement and faces potential rebuttal by other sources. And, when an FSO leaks without authorization, she knows she is also risking reprimand inside the department. That does not, so far, appear to be the case for the bloggers.

Vigorous debate within our foreign policy apparatus is crucial to good decision making. But taking personal rants on issues of international policy and national security to the blogosphere while hiding under a cloak of anonymity appears not only against the rules, but -- how shall I put it -- undiplomatic.

Monday, January 17, 2005

Martin Luther King Jr. and a Just World Order

In honor of Martin Luther King Day, I wanted to post a few thoughts on Dr. King’s message and the work of international law. Brian Lehrer on WNYC has been running a show today of short excerpts of readings in some way reflective of Dr. King’s message but about cultures other than our own. Also, for those interested in reading from Dr. King’s papers and speeches, Stanford University has an excellent collected papers project available online.

But why talk about Dr. King on a blog about international law? King’s voice was not the voice of the international lawyer, but of the pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers.

Quite simply, Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice. This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologoies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to "appreciate the reciprocal": think of how the world would look from the standpoint of the average man or woman living in Vietnam. Towards the end of his speech, he expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a "Just World Order." He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life's roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life's highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: "This is not just." It will look at our alliance with the landed gentry of Latin America and say: "This is not just." The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

A true revolution of values will lay hands on the world order and say of war: "This way of settling differences is not just." This business of burning human beings with napalm, of filling our nation's homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

While full of references to the problems of the day (the Communist threat; whether to seat Red China in the U.N.), Dr. King still gives us a lesson for our day. He argues that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openess to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others. And, at the end of the day, he put more faith in the possibility transformative discourse than in supposed pragmatism of regime change.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t subsumed by international law but encompassed it.

Martin Luther King Day allows us to remember the battles fought in the past: Freedom Marches, lunch counter sit-ins, and facing Bull Conner’s dogs. To a certain extent it allows us Americans to pat ourselves on the back and say “Look how far we’ve come.” But King’s message goes beyond Alabama in the mid-1960’s and is still radical, challenging, and of global relevance today. As an international lawyer, I read his words and think not only about how far we’ve come, but about how far we have to go.

Sunday, January 16, 2005

Breyer v. Scalia: A "Messy Conversation" on Foreign Law

Breyer and Scalia don't appear to disagree about international or comparative law per se, but about the appropriate role of judges and their use of any non-binding sources of law or information when trying to resolve cases. (In fact, Scalia has stated clearly that he sees it as important and appropriate to use foreign and international court opinions in interpreting the treaty obligations of the United States.) And since no one claims that foreign sources are binding in any way, how is discussing them a danger to popular sovereignty? It seems perfectly sensible for the Court to seek out all sorts of sources of information in an effort to better understand complex legal questions. As Breyer put it, foreign law sources are simply one element of the "messy conversation" about law that judges take part in:

[L]aw is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we're part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think that's the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. And that means you have to have the conversation.
Jamin Raskin argues that Scalia can't have it both ways on originalism: either all outside sources (including Blackstone, Shakespeare, popular movies and Gilbert & Sullivan) that find no explicit mention in the Constitution or the history of its drafting are improper subjects for discussion by the Court, or everything is fair game. And it seems pretty clear that recent political responses to the mere mention of foreign law in the Court's opinions (see, e.g., HR 3799) were motivated not so much out of concern for coherence in judicial decision-making, but out of lingering bitterness on the Hill over European opposition to the Iraq war.