Saturday, February 05, 2005

WTO Watch: Japan "Sues" U.S.; S. Korea "Sues" Japan

Japan has officially requested the creation of a WTO dispute settlement panel claiming that U.S. anti-dumping laws violate WTO rules. Meanwhile, South Korea has requested a panel to challenge Japan's administration of a seaweed import quota that results in strict limits on seaweed imports from South Korea. My American-centric worldview suggests that the challenge to U.S. anti-dumping rules is likely to be more significant, since it is the cornerstone of latent U.S. protectionism, but then again, the Great Korean-Japanese Seaweed Struggle may be more important than I realize.

Friday, February 04, 2005

The Problem with Torts Over Torture

A quick response to Peggy’s very thoughtful post taking me to task for criticizing the Guantanamo Alien Tort Statute lawsuits. I think most of our disagreement is simply due to sloppy language on my part. I do think it is strange that enemy combatants will sue the U.S. in its own courts for violations committed during a period of military hostilities. For this reason, I think the lawsuits are not only remarkable, but will also have lots of problems succeeding because of various legal obstacles (particularly sovereign immunity).

I obviously agree that whether the Gitmo detainees were innocent or not, they could not legally be tortured under U.S. laws. But I also believe that the Gitmo detainees will, by filing these suits, expose themselves to discovery requests about their own behavior and association with the Taliban or Al Qaeda. Unless they are “innocent” by which I should have said “unassociated” with the groups to which Congress authorized the President’s use of military force, I just can’t imagine a U.S. jury awarding damages, even if they should.

Finally, I think these suits may have a greater effect on U.S. government policy than the Acree suits will have on foreign countries because the Gitmo suits are against the U.S. government and officials in U.S. courts. The Acree suits are against a foreign government and it is harder to imagine a foreign government in the future, probably a different government, being deterred by the threat of lawsuits in U.S. courts.

Of course, it is hard to say for sure what the effects of these lawsuits will be, and the use of foreign courts to go after U.S. officials is another interesting legal front in the war on terror.

Thursday, February 03, 2005

Maybe Some Accountability for Abu Ghraib?

Defense Secretary Rumsfeld tried to resign (twice) over the Abu Ghraib scandals last year, but President Bush refused both times to accept his resignation. As I explained here, I think someone, probably Rumsfeld, should take responsibility for Abu Ghraib and I almost thought his attempt to resign reflected a similar feeling. But then, he makes this boneheaded statement:

What was going on in the midnight shift in Abu Ghraib prison halfway across the world is something that clearly someone in Washington, D.C., can’t manage or deal with . . . I have no regrets.

Rumsfeld is not responsible for Abu Ghraib because he intended for it to happen. He is responsible (in my mind) because he failed to create policies and procedures that would have prevented the abuses from occurring. For all the yelling about Gonzales (update: see this NYT editorial today), if any cabinet officer is responsible for Abu Ghraib, it is undoubtedly Rumsfeld.

Update (2/4): I should also have noted this account suggests Rumsfeld will avoid going to Germany because of a lawsuit filed there by the Center for Constitutional Rights accusing him of responsibility for the Abu Ghraib abuses (note, unlike U.S. lawsuits, this is essentially an individual request for a criminal prosecution that German prosecutors have an obligation to investigate). I don't approve of this sort of lawsuit in general, because I think Rumsfeld was guilty of negligence for which he should have resigned, but not "war crimes" and, in any case, a German court is unlikely to be a good forum to hash this stuff out. In fact, as Professor Bainbridge's semi-facetious reaction here illustrates, it is likely to spur a rather unhelpful reaction from the U.S.

And I am a little bit shocked that CCR has added to their German filing an expert affidavit by Scott Horton, a partner at Patterson Belknap in New York and an adjunct prof at Columbia, who apparently concludes that no criminal investigation of the Abu Ghraib abuses could occur here in the U.S. because the "criminal and investigative functions are controlled by the individuals who are involved in the conspiracy to commit war crimes." This is strong stuff and I am curious how Horton backs up his Chomsky-like claim that the U.S. government, and its Justice Department, have become dominated by war criminals.

Judge Sentelle and the Guantanamo Cases

Publius passes along this "liveblogged" account ofJudge David Sentelle's talk at Columbia Law School on Tuesday. His views matter more than usual because he sits on the court that will hear the appeal of the Guantanamo detainee decision we have been blogging about.

Unfortunately for anyone hoping to get a preview of the outcome, Judge Sentelle is an experienced and savvy judge, which means he did not reveal anything specific about how he might rule in the case if it comes before him. I'm guessing he is sympathetic to the dissenters in Rasul, but it is hard to tell for sure. But maybe I'm missing something....

Update (2/4): Sorry I've been having some problems with Blogger, but the link to the Sentelle talk should be up now.

Oil for Food: Volcker Finally Delivers (or Does He)?

The Interim Report from Paul Volcker's Independent Inquiry Commission investigating the UN Oil-for-Food scandal has been out for barely two hours, and already the blogosphere is on the case (via instapundit) declaring it at once damning and a whitewash. Of course, it's one thing to react to the report, it's another to actually read through the (unbelievably boring) 246 page report.

Here is Annan's statement, and here are some pre-release complaints about the Volcker Commission from Heritage suggesting it is likely to try to whitewash or downplay the scandal.

Dirty Harry and International Law

Thomas P.M. Barnett, formerly of the the U.S. Naval War College and author of The Pentagon’s New Map (a much talked-about book concerning the future of U.S. foreign policy) has an essay entitled “The New Magnum Force: What Dirty Harry Can Teach the New Geneva Conventions” in the current issue of Wired. (See also his blog.) His article is on the need draft new rules that address the new security threats in the changing international system.

He writes:

So many suspects, so little time. No wonder we bend the rules here and there, declaring terrorists unworthy of protection under the Geneva conventions. It might work for a while - until the photos from Abu Ghraib are posted on the Web, and you have to explain to your kids why that sort of stuff is OK when the bad guys are really, really bad. And if you're the president? Well, maybe the doubts creep in when your own White House counsel warns you about possible war crimes charges over Guantanamo.

The Geneva conventions, as it turns out, served a few purposes: They created an international order, separated the civilized nations from the outlaws, and protected Americans. The 1949 convention was designed to prevent a rerun of the atrocities of the last great global war - a struggle between sovereign states. Today, we're waging a new type of war (for us, at least) against a new type of enemy (the Man With No State).

Unless we want to spend the rest of this conflict trying to rationalize police brutality and torture, the US needs to acknowledge (1) that it's not above the law; and (2) that it needs a new set of rules for capturing, processing, detaining, and prosecuting such nonstate actors as transnational terrorists. In short, we need Dirty Harry to come clean. Frontier justice must be replaced by a real justice system. And there's nothing wrong with figuring this out as we go along.


The rest of the essay develops his ideas on how “Dirty Harry” can “come clean.” In short, he argues that the U.S. and its allies in the War on Terrorism should continue taking the initiaitve on fighting terrorism but in the long-run, the national interest of the U.S. will be best served by fostering the construction of new norms and international insitutions that guard against the threa of state-sponsored and non-state terrorism. These rules will need to be written by the U.S. and like-minded states engaged in the struggle against terrorism. Consequently, Barnett argues, the UN would not be the best forum for developing these new norms. As he puts it, an organization where Libya can chair the Human Rights Committee lets bad actors off too easily. Instead, the U.S. and its allies should focus on the construction of a new organization, a World Counterterrorism Organization or “WCO.” Thus current state practice by the U.S. and its allies would lead to a new normative structure more conducive to combatting the new threats of failed states, powerful non-state terrorism, etc. These norms, in turn, would then be institutionalized in a WCO.

Although not explicitly about international law, his essay is full of interesting observations and ideas about the relationship of international law to national security and also about the process of international law making. Many of his points are implicit in his argument. For starters: the need to transform from vigilantism to norm-creation; the process of making a new security system by first (arguably) breaking the rules of the current system; the need for international organization;building effective international organizations by not letting all states come around the table; like minded-states writing new norms and then inviting others to join and/or imposing the norms on them.

It is too much to cover in a single post, so I will be returning to these ideas in subsequent posts in the next couple of days. In any case his essay, his book, and his blog make for thought-provoking reading.

Sorting through the Torture Debate: Lederman in a Split Decision

Marty Lederman of Balkinization has been kind enough to leave a comment below wondering why I only give him a "split" decision in his debate with Heather Macdonald over U.S. interrogation tactics. They have recently continued their debate here. I agree with Mickey Kaus that the Macdonald-Lederman debate usefully clarifies a lot of the confusion (some of it intentional) by partisans on both sides. So here’s my scoring of the debate, so delayed in blogosphere terms that no one can remember what the original discussion was about.

(1) MacDonald is certainly on strong legal ground when she argues that Al-Qaeda members, irregular Taliban fighters, and (I would argue maybe Iraqi insurgents) do not deserve the full protection of the Geneva Conventions in the same way that, say, Iraqi soldiers in the Saddam regime deserved. Round goes to Macdonald

(2) But Lederman rightly points out that laws other than the Geneva Convention are at stake here. The U.S. is obligated by treaty and statute to abide by the Convention against Torture and U.S. soldiers are bound by the Uniform Code of Military Justice. These laws apply whether or not the “terrorists” are “lawful or unlawful combatants.” Round goes to Lederman

(3) Lederman goes on to blast DOJ and DOD lawyers for coming up with such narrow interpretations of these laws as to be completely implausible. Here, I think he is on less solid ground. The U.S. may receive the opprobrium of the international community, or it may not, but I am not convinced that the traditional methods of statutory interpretation here require a different result. Nothing in the plain text, legislative history, or case law of the Torture Implementing Statute leads me to say Lederman is wrong, but nothing leads me to say he is right either. For instance, both the widely decried August 1, 2002 memo and the recent December 2004 retraction seem persuasive as a matter of statutory interpretation to me. Both attempt to interpret the text, in light of its common meaning, its legislative history and intent, relevant caselaw, etc. etc.

Surely, Lederman agrees that the executive branch has some discretion, partially derived from its Commander-in-Chief power, to adopt narrow interpretations of laws governing their conduct of military and foreign policy. I probably would have drawn the line differently here, but I can’t fault lawyers for trying to come up with an interpretation of the law that narrowly gives the executive discretion over interrogations. Given that most people agree that there are extreme circumstances where extremely coercive techniques are at least morally justified (the ticking time bomb scenario), wouldn’t we prefer to give the executive the discretion to determine when to use extreme coercive interrogations?

Don’t get me wrong. The abuse of this discretion at Abu Ghraib, Guantanamo and probably by the CIA overseas is wrong and, if the facts that are coming out are true, they are horrendous. But I’m not convinced that some of the coercive techniques approved (say waterboarding or sleep deprivation) could never be legal and I do think the executive needs some discretion to determine when such extreme measures are necessary. No winner here.

(4) Having endorsed giving the executive discretion under the law, it is crucial that we can hold those executive branch officials for abuse of that discretion. Macdonald and other defenders of the Administration harp on the fact that the Administration never approved the abuses at Abu Ghraib and even Lederman agrees there is no “smoking gun” linking high officials to the abuses. Instead, he relies on the legal analysis creating a culture of tolerance for abuse. I’m not convinced that legal analysis exploring the limits of legal discretion in extreme circumstances inexorably leads to abuses, but in this case, there was obviously some severe and horrendously damaging abuse of discretion here.

If the Administration has a policy to treat detainees “humanely” but nonetheless prisoners are not being treated “humanely” as well as (possibly) in violation of certain laws, the Administration is responsible for not preventing these abuses, even if they were not technically illegal. In order for the Administration to use coercive interrogations skirting the lines of legality, they must demonstrate the judgment and the credibility that they would wield such power judiciously. Their record thus far is not very reassuring, to say the least.

No one in the Administration is defending the abuses, but no one in the administration is taking responsibility for the abuses either. Macdonald’s defense would be a lot stronger if she would at least concede that serious mistakes were made by the Administration and someone has to take responsibility for it. Round and decision goes to Lederman

I certainly admire Lederman's analysis of the so-called "Torture Memos" and their effect on U.S. interrogation policies. He has certainly provided the most comprehensive blend of legal analysis and factual investigation of the various interrogation controversies that I've seen anywhere in the blogosphere. But while he is rightly outraged by the abuses in the interrogation policy, I think his focus on the legal memos misses the mark. The scandal is not that lawyers explored the outer limits of the law. The scandal is that the Administration could not prevent abuses that may have been torture even when it said they wanted to, and has not pledged to take any serious measures to prevent this from happening again. That’s bad enough.

International Law Prof Nominated for Nobel Peace Prize

Michael Scharf, a professor of international law at Case Western Reserve University Law School, was nominated for a Nobel Peace Prize yesterday by six foreign governments for his work "significantly contributing to the promotion of peace throughout the globe by providing crucial pro bono legal assistance to states and nonstate entities involved in peace negotiations and in bringing war criminals to justice." Professor Scharf's work mainly occurs through the group he co-founded, the Public International Law Policy Group which provides "free legal assistance in areas such as peace negotiations, human rights and constitution drafting" to countries emerging from civil strife such as Bosnia.

Wednesday, February 02, 2005

Distinguishing Guantanamo

David Glazier, a former naval officer and current research fellow at UVA's Center for National Security Law takes issue with my claim that due process rights in Guantanamo may lead to due process rights at other U.S. military bases overseas. He writes:

Having spent extensive time at overseas naval bases (I was stationed at Yokosuka, Japan for 20 months and have visited Guantanamo (GITMO) three times, most recently as the commandingofficer of a frigate in early 2001), I can tell you there are MAJOR differences between our use of GITMO and other leased bases. Under most base agreements the host nation exercises significant practical controls,particularly in areas such as immigration and customs. We cannot host athird country national, for example, at Yokosuka w/o Japanese approval. Andservicemen reporting for duty in Japan clear Japanese customs andimmigration. In Cuba we do as we please in terms of having people come and go.

Something the administration has overlooked is that had the courtsadopted their view that Cuba still enjoyed sovereignty over GITMO, we would then logically have had to secure their consent to any third countrynationals' presence; i.e. they should be able to veto detentions there; notonly of the current terror suspects but also such previous use as the largescale detention of Haitian refugees. And it surely would have called into question the legality of past detentions of Cuban refugees as well.

Since the U.S. has given up our naval base at Roosevelt Roads, P.R., GITMOis essentially our only base in the Caribbean, and is thus key to supporting a variety of national security concerns including interdiction of illegalmigration, drug smuggling, etc., not just detention of suspected enemycombatants. So I'd argue the court decisions finding federal jurisdiction over GITMO have actually served our longer term national security interests better than the single-issue preoccupation of the administration.The Navy's longstanding interpretation was that "ultimate" Cuban sovereignty referred to in treaty language meant the literal dictionary definition ofultimate -- last in time, not the common connotation of ultimate as meaningsuperior. That is, Cuba would be sovereign when the U.S. finally decided to end the lease. Of course no one currently in the Navy would want to incurthe wrath of the administration by making this point very forcefully.

I think Dave makes a very good point and I of course defer to his superior knowledge of how the military bases work, and that factually, Guantanamo may be sui generis. Only one quibble: you can imagine countries that are very deferential to the U.S. (Afghanistan and Iraq under occupation come to mind) on hosting third party nationals. Or to take an historical example, U.S. bases in occupied Germany and Japan at the end of WWII were probably similar to Guantanamo - we were there until we chose to leave.

At one point does that deference by the host country suggest that we are essentially exercising sovereignty such that the base falls within federal habeas jurisdiction and requires giving alien combatants there due process rights?

Darfur, the ICC, and a Sustainable Peace

Julian correctly notes that international tribunals aren’t very effective at stopping ongoing killings. He misses the point that they (a) are effective in helping define post-conflict legal order in transitional states and consequently (b) play an important part in saving lives in the long run. Kristof understands this. He understands that in order to get some type of stability in the Sudan and a sustainable peace, there needs to be credible justice.

The Bush Administration, for its own political reasons, would like an ad hoc tribunal to hear these cases. It has not been able to get the support of the Europeans to fund such a tribunal as they view that there is already a competent tribunal in existence, the ICC. The point of the ICC was to put an end to the relatively inefficient funding of ad hoc tribunals (each needing its own infrastructure and staff) and put all such claims before a single court that would build expertise in the area.

So, in the absence of political consensus, what should the Bush Administration do? They seem to be choosing that it would be preferable to have no tribunal hear these claims over having the ICC hear the claims. This is unwise and it does place the concerns of the victims of violence (I would say genocide) in Darfur secondary to the Bush Administration making a point about its dislike of the ICC.

An ad hoc tribunal is unlikely to do as good a job as the ICC. Not having any tribunal at all puts long-term peace in the region on shakier ground than if there was a tribunal to hear these claims. While the Bush Administration should be commended for pushing the international community to recognize the horrors of Darfur, it is nowhere near where it should be in terms of actually securing a peace.

Customary International Law and Judge Green's Guantanamo Opinion

Scott Sullivan at the Transatlantic Assembly has picked up an interesting point on Judge Green’s Guantanamo opinion. He notes that Judge’s Green opinion states that it is “unnecessary” to look to the detainees’ customary international law claims as they were found to have Fifth Amendment and the Geneva Convention claims. Sullivan argues that this is unsatisfying and concludes “This seems to be the prototypical circumstance where CIL was envisioned to "fill the crack" of the treaty-based legal scheme.”


Darfur Deadlock - Whose Fault? (The NYT weighs in)

Following up my Darfur post , I note that Nicholas Kristof of the NYT weighs in and, predictably, lays all the blame here on the U.S. opposition to the ICC. He quotes Kenneth Roth of Human Rights Watch: "The I.C.C. could start tomorrow saving lives . . . [w]ith the [ad hoc] tribunal route, you're talking about another year of killing."

This is ridiculous. Kristof of all people should realize that (1) the U.S. has been the primary reason why the world is paying any attention to Darfur in the first place when it declared the atrocities "genocide" back in Sept. 2004; (2) the atrocities in Darfur may have begun prior to 1 July 2002 thereby excluded from the ICC's jurisdiction, and most importantly (3) neither the ICC nor an ad hoc tribunal will stop the atrocities, as Peggy argued here.

International criminal courts are good at punishing war criminals and providing retribution for victims, but they cannot save lives in an ongoing conflict. Just ask the Bosnians, Kosovars, and Tutsis whether they would have preferred ICC indictments or the U.S. Air Force.

ICJ Watch: Peru Will Sue Japan for Fujimori

Peru has announced it will bring an application to the International Court of Justice seeking to force Japan to turn over former Peruvian President Alberto Fujimori to face corruption charges. I've heard rumors about Peru bringing such a case for years but I never figured out what the legal basis would be because Peru and Japan do not have an extradition treaty and Fujimori is certainly not accused of anything rising to the level of serious war crimes and/or human rights violations. Still, I wonder if this case will result in yet another major power (Japan) withdrawing its acceptance of the ICJ's compulsory jurisdiction.

Tuesday, February 01, 2005

Allan Farnsworth and Private International Law

Professor E. Allan Farnsworth of Columbia Law School passed away yesterday. Although best known as the dean of contract scholars, a Reporter of the Restatement (Second) of the Law of Contracts, and the author of influential treatise and casebook on contracts, Professor Farnsworth also had a profound influence on private international law. Not only was he a central figure in the development of both the Convention on Contracts for the International Sale of Goods (CISG) and the UNIDROIT Principles of International Commercial Contracts, but his scholarship on these instruments and on comparative contract law is a benchmark for academics writing in private international law and comparative law. Consider just three short pieces available on the Internet on international aspects of contract interpretation, good faith in the law of contracts, and the use of standard forms. Moreover, his casebook on Contract law, co-written with William Young and Carol Sanger, asks students to compare and contrast U.S. domestic law to examples from other countries, the CISG, and the UNIDROIT Principles, thus introducing first-year students to international and comparative law.
Allan Farnsworth was a great scholar and teacher. He will be missed.

Assigning Blame for the Darfur Deadlock

I've blogged before suggesting that the U.N. was being an obstacle to more action to stop the atrocities in Darfur, but perhaps I was unfair to the UN. Its report on Darfur (which can be found here) found plenty of horrible atrocities (though not genocide) that it believes rises to the level of war crimes. More to the point, the report calls for the Security Council to refer the case to the ICC. In this way, the U.S. insistence on opposing an ICC referral seems to be the real obstacle to progress. That is certainly how media coverage from Reuters, the NYT and the BBC are portraying it. And there's some truth to this. But even putting aside the U.S.'s opposition to the ICC (unreasonable here I believe), it has offered plausible arguments that an ad hoc tribunal would be better here. One of the best arguments is put forth by State Department spokesman Richard Boucher here (via Jurist):

The [UN Panel] in its reporting on these atrocities, details crimes that took place in 2001 and 2002. Those crimes predate the establishment of the International Criminal Court and therefore predate -- that therefore the court wouldn't have jurisdiction over those crimes. So you have all the crimes of 2001 and 2002 that couldn't be handled by the International Criminal Court because of the way its statute reads, whereas a tribunal in Africa could deal with all the crimes that have been committed in Darfur from the beginning.

This makes sense to me and makes me wonder why the UN Panel recommended the ICC. But then, turning to the UN Panel report section explaining why it supports the ICC and not an ad hoc tribunal.

581. Furthermore, and importantly, the situation of Sudan is distinguishable in at least one respect from most situations where a special court has been created in the past. The impugned crimes are within the jurisdiction rationae temporis of the ICC, i.e. the crimes discussed in this Report were committed after 1 July 2002.

That's not precisely true, as the UN's own report details some alleged war crimes involving hundreds of people that occurred prior to 1 July 2002. It is true the majority of the crimes occurred after the 1 July 2002 date, but technically speaking, the UN Panel's claim about its own findings is less accurate than the State Department's. All of this suggests the UN Panel was playing a little politics, trying to force the U.S. to work with the ICC on a matter the U.S. obviously cares about more than other members of the Security Council.

What's the lesson from all of this? None of the key actors here -- not the U.S, not Europe, not even the UN's Panel of experts -- are above playing ICC politics with the Darfur question.

Judicial Second Guessing and the Guantanamo Detainee Decision

I can't resist weighing in on the Guantanamo decision again, although I agree with Peggy's analysis yesterday. I think the decision is a defeat for the government (per Andreas) and that it moves beyond existing precedent and certainly beyond past practice. That does not mean it will be reversed, but it is certainly pushing the envelope of judicial review of military activities overseas a great deal farther than one could have imagined just 3 years ago.

Under the court's decision, a non-citizen on any U.S. military base or property worldwide could go to U.S. federal court to claim Fifth Amendment and/or Geneva Conventions rights to challenge the President's factual determinations made pursuant to a statutory delegation by Congress.

Perhaps U.S. abuses in the war on terrorism require this shift from past practice, but we should recognize that we are indeed moving into a different world here.

The bulk of the decision relies on the due process clause of the Constitution (in the Fifth Amendment) to analyze and ultimately reject the adequacy of the Combatant Status Review Tribunals (CSRTs) created by the Defense Department after the Supreme Court's decisions last year. The decision also relies, to a lesser degree, on the Geneva Convention's requirement of a neutral tribunal for determining POW status. But, as Peggy points out, the rest of the claims, including violations under customary international law, were dumped. Which reminds us that judges will always prefer constitutional or treaty arguments to fuzzier customary international law arguments.

The Due Process analysis requires a couple of steps that may be attacked on appeal. First, it extends Due Process constitutional protections to Guantanamo Bay, whereas the Rasul decision last year in the Supreme Court relied on statutory interpretation to extend habeas jurisdiction. The question of what constitutional rights are provided to non-citizens outside of the U.S. is a murky and complicated one and the district court moved farther than previous doctrine has provided. The judge relies heavily on the idea that Guantanamo is essentially U.S. territory, but I'm not sure I see an easy distinction between Guantanamo and, say, Bagram Air Base in Afghanistan or any U.S. military base leased overseas. In any event, if I represented an Afghan or Iraqi detainee held on a U.S. military base anywhere in the world, this court's reading of Rasul will permit me to claim, quite credibly, that I have due process rights. This may very well be a good idea, but it is also unprecedented. It is a sign of how far we have come that German detainees in Johnson v. Eisentrager were essentially laughed out of the Supreme Court, even after the war ended, whereas detainees in this ongoing conflict will get due process.

Second, although I am sympathetic to the Judge's view that the CSRTs are fundamentally unfair because they fail to allow a detainee access to classified information to challenge their status, I'm not sure how to solve this problem. Obviously, there are reasons to classify such information, just as obviously, the detainee needs access. I'm not sure the judge's solution (give it to the lawyers) is such a great one.

In any event, the judge also found that the definition of "enemy combatant" was overly broad because it was not limited to individuals "engaged in armed conflict" against the U.S. but included anyone associated with Al Qaeda and/or the Taliban. Again, this is a reasonable determination, but it is also a remarkable departure from past practice. FDR had no problem (and neither the WWII Supreme Court) with hanging 6 enemy combatants in 1944 (see Ex Parte Quirin) who had allegedly plotted to bomb the Long Island Railroad and no one even really bothered to define enemy combatant in those cases.

One more note: the court found that the Geneva Conventions are self-executing and required the President to provide a neutral and case-specific decisionmaker to allow Taliban individuals to seek POW status. No blanket declaration by the President as to the Taliban's status sufficed. This sounds sensible, but usually courts give the President some deference in his interpretation of the Geneva Conventions. No deference was provided here. Moreover, the Court did not really grapple with the important question of self-execution. No doubt the Geneva Conventions are "self-executing" in the sense that they did not require any implementing legislation. But it is plausible, even likely, that the President and Senate believed that the treaty would be implemented entirely by the President and the military without any private right of action in the courts. No serious analysis of this question was undertaken here. And there might be good policy reasons for leaving that implementation to the President. One possibility: Country X, our opponent in the war and Geneva Convention signatory, declares that all U.S. soldiers are not POWs. Is it necessarily true that the President continues to be bound by the Geneva Convention and cannot issue a reciprocal blanket declaration?

In the end, I agree with Andreas that this is a defeat for the government. And I think the court revealed some damning evidence about possible torture and unfair treatment of Gitmo detainees. So I think the result in these cases are not the end of the world for the war on terrorism and quite possibly a necessary check on executive abuses. On the other hand, this decision shows us that we are heading toward a world of judicial review of presidential military determinations, even determinations made pursuant to a resolution by Congress authorizing him to use all necessary and appropriate military force. The fact that this delegation by Congress to the President involves the military and foreign affairs doesn't matter as much as it would have to courts in the past.

This is a brave new world and I wonder if we are ready for its consequences.

Monday, January 31, 2005

International Legal Personalities

I had initially thought I would “liveblog” the Santa Clara University conference I attended last week but the lack of free wireless internet access and the limitations of my typing skills stymied that plan. So instead of simply recapitulating the discussions and presentations, including my own (which will be published in any event), let me instead profile three of the most interesting and famous figures at this conference: Judge Rosalyn Higgins, Professor Louis Henkin, and Professor John Yoo.

Rosalyn Higgins

Judge Rosalyn Higgins, a British lawyer who has served on the ICJ for over a decade, gave the keynote address. Judge Higgins has had an impressive career and the ICJ is lucky to have a dignified and credible member like her on its bench. Still, like many judges, her talk only hinted at the interesting topics that she could have talked about. Her address touched on the recent series of ICJ cases involving U.S. obligations under the Vienna Convention for Consular Relations, and suggested that she believed the decisions did not transform the ICJ into a “court of appeal” overseeing U.S. courts. Yet she also admitted that the ICJ had rejected the U.S. government’s suggestion that non-judicial remedies might satisfy their treaty obligations. She did not believe that requiring a particular type of domestic legal remedy (in this case, a judicial remedy) is a remarkable intervention by an international tribunal into domestic law.

Perhaps I’m being overly imaginative (or paranoid), but I am not sure Judge Higgins thinks the ICJ’s role is as modest as she suggested, Her reference to the ICJ as the “highest international court in the world” may actually reflect a more exalted view of the ICJ’s role than is justified by its very limited jurisdiction and the fact that it has no jurisdiction over any other international tribunal.

Louis Henkin

Other than Judge Higgins, the most famous speaker at this conference was undoubtedly Louis Henkin. Henkin’s influence on the United States international law academy is hard to overstate. His treatise, Foreign Affairs and the U.S. Constitution, is the seminal text on the study of international law as part of the domestic U.S. system. Combined with his service as Chief Reporter of the Restatement (Third) of U.S. Foreign Relations Law, Henkin can claim, without danger of too much contradiction, to be the greatest international law scholar of his generation (the only other possible claimant to this title is Myres McDougal).

On the other hand, Henkin’s views on a number of subjects such as the status of customary international law and the self-execution of treaties have been sharply questioned by recent revisionist scholarship. But none of this detracts from his achievement in setting the agenda for a generation of legal scholarship. Before anyone else thought to do so, Henkin asked all the interesting and important questions for international law scholars. It does not detract from his achievement that I, and a number of others more prominent than myself, think he is wrong in many of his answers.

John Yoo

If Henkin is the most acclaimed scholar of international law of his generation, John Yoo may very well be the most controversial of his. Over the past seven years, Yoo has created an impressive body of scholarship on subjects such as presidential control over the use of military force and the self-execution of treaties. But Yoo himself became controversial last year when a number of memos he wrote while serving in the Office of Legal Counsel of the Justice Department were leaked to the media almost at the same time that the abuses at the Abu Ghraib prison in Iraq were revealed. Although none of Yoo’s memos actually advised that torture was acceptable (this is something that Yoo’s critics often forget), they did take a rather robust view of the President’s Commander in Chief Power and a narrow view of the effect of statutory law and treaties prohibiting torture by U.S. government officials.

As a legal matter, Yoo’s analysis is not only defensible, it may very well be right, as I’ll try to explain later this week when I discuss Marty Lederman’s posts on this subject. In any event, I think the hysteria over Yoo’s memos, which were reflected in some of the angry questions posed by audience members during the conference, is misdirected. Lawyers in Yoo’s position must give a good faith interpretation of the law and I believe he and others did so here. Yoo’s more intelligent critics, like Lederman, have offered very persuasive alternative interpretations of the laws that may also be right. But I just don’t think that a disagreement over the interpretation of laws and statutes can rise to the level of legal malpractice or even criminal action, which some of Yoo’s most severe critics have suggested.

Imagine someone calling for the prosecution or disbarment of Justice Harry Blackmun for writing Roe v. Wade and thereby allowing (in some people’s views) the murder of millions of babies. Such combinations of hysterical outrage and moral righteousness, so easy to dismiss in the abortion context, are not just seen in random audience members. Some well-regarded legal academics like Dean Harold Koh have declared some of the DOJ memos on torture to be the worst legal work he has ever seen. This is not hysterical, but it is troubling given the stature of its source. All of this inhibits the ability of lawyers and policy makers to have useful or intelligent conversation about very difficult and important issues.

In Yoo’s case, hysteria over his work in the government should not obscure his ambitious scholarly agenda or, indeed, what he has already accomplished (not even including the work he and I have done together). He, along with a number of other scholars like Jack Goldsmith, Curtis Bradley and Eric Posner, have sought to challenge a lot of conventional wisdom that has stultified post-Henkin international legal scholarship. One of their most important contributions is to focus their scholarship on developing positive or descriptive models of international law or foreign affairs law rather than making only normative arguments. An outstanding example of this is Posner and Goldsmith’s recent The Limits of International Law.

It should be acceptable for international law scholars to question the growth or use of international law. Our role as scholars does not require us to advocate for or against international law. Yet this statement alone may raise some eyebrows. One of the odd things about international law scholars, and certainly international law scholars of a certain generation, is their strange obsessions with whether one “supports” or “believes” in the existence and promotion of international law. Constitutional law scholars are not expected to always believe in constitutional law, so why should international law scholars?

Coalition Provisional Authority Fails the Accountability Test

It was reported today that the Coalition Provisional Authority for Iraq was unable to account for $8.8 billion -- yes, that's BILLION -- in assistance money spent in the first year following the US invasion. To put the dollar amounts in perspective, that's more than twice the annual operating budget for the UN and almost $2 billion more than the annual operating budget of the State Department. And while we don't yet know the full extent of the money unaccounted for in the UN Iraq oil-for-food investigation, early reports put it at around $1.7 billion. With apologies to the late Sam Rayburn, "a billion here, a billion there, pretty soon you're talking about real money." This revelation is not entirely surprising, given the CPA's reliance on no-bid contracting procedures. But it deserves at least as much scrutiny by Capitol Hill as the investigation of the oil-for-food scandal.

The "Hard-Soft" Power of US Tsunami Aid

James Traub published this excellent essay in yesterday's NYTimes magazine discussing military involvement in humanitarian activities, an issue I addressed in this previous post. His main point is a riposte to Joseph Nye's theory of "soft power," the notion that the United States projects it power not simply through the "hard power" of coercive military and economic strength, but also through the export of culture and values. Nye's taxonomy fails to consider where in the toolbox of American diplomacy to place the aircraft carrier delivering potable water or the US Army officer promoting civil society in Kosovo. Traub also argues that, at the same time we use our "hard power" for "soft purposes," our power to influence through culture may, in fact, be limited by the nature of the culture we are exporting. (For a couple of examples of cultural exports, see discussions here, here and here about reality televisions programs in Africa.)

Guantanamo Detainee Decision

Andreas Paulus has a fair point that Judge Green's decision can be read as a significant defeat for the government's core arguments on the legality of the Guantanamo detentions and the government's own reading of the Rasul case. But there are elements of the decision that may deflate the hopes of lawyers planning on further tort cases on behalf of detainees. Here's what the government prevailed on:

(1) The part of their motion to dismiss that argued that the Geneva Conventions do not provide a private cause of action, a question which the judge herself noted is also at issue in the Hamdan appeal. The government's argument was (1) that the Geneva Conventions create no rights in individuals; (2) that even if they did, the GC do not create private rights of action in federal court because they are "non-self-executing"; and (3) even if 1 and 2 are rejected, al Qaeda and the Taliban are not protected by the GC. The judge adopted Judge Robertson's ruling in Hamdan as to points 1 and 2, but accepted the government's argument on point 3, but only as to al Qaeda and not the Taliban (i.e., Taliban detainees may assert rights under the GC)

(2) The Alien Tort Claims Act: Judge Green adopted the reasoning of Judge Kollar-Kotelly in her original Rasul decision that the doctrine of sovereign immunity bars the tort claims and that the waiver provisions of the Administrative Procedure Act are inapplicable on the grounds of the military authority exception. (An interesting question is here to what extent the military exception can be asserted as a defense in Iraq for claims arising post-transfer of sovereignty.)

(3) Other claims dismissed included general assertions of claims under the 6th, 8th and 14th Amendments.

For a discussion of the procedural effects of this decision, which Judge Green made in her role as coordinator for several cases originally assigned to other DC district court judges, see this helpful discussion at SCOTUSblog.

U.S. Judge Allows Lawsuit Challenging Guantanamo Tribunals To Continue

This Reuters story suggests that a district court judge has held the Guantanamo Bay military tribunals unconstitutional. As usual, Reuters (and other news agencies) are overstating the scope of the decision. Rather, it is more accurate to say that the district court judge has refused to grant all of the U.S. government's motion to dismiss claims by certain detainees that their detention as enemy combatants in Guantanamo Bay violates the Constitution, federal law, treaties, and customary international law. Moreover, she also ruled in favor of the government on some issues we've discussed here dismissing some of plaintiffs claims for constitutional violations, finding broad sovereign immunity for claims under the Alien Tort Statute, and finding that the possible existence of a treaty violation makes their customary international law claims unnecessary. Still, the ruling is a setback for the government. I plan to blog more on this decision later.

How Mexico Can Sue Arizona

The Foreign Minister of Mexico, peeved that Arizona voters passed a referendum denying benefits to undocumented aliens, is threatening to sue the U.S. in unspecified international courts. This raises an interesting question: Can Mexico sue the U.S, or Arizona, under international law to stop this law from going into effect? If so, where?

There is no shortage of international law that Mexico might invoke. Off the top of my head, they might invoke the International Covenant on Civil and Political Rights. Or they might make a claim that various provisions of the International Covenant on Economic Cultural and Social Rights has become customary international law. While all of these forms of international law might support a claim, the real obstacle for Secretary Derbez is finding a court with jurisdiction to hear that claim. International law is full of substantive rights without any forum to vindicate them.

What crazy international tribunal would hear Mexico’s claim? The International Court of Justice? The International Criminal Court? Actually, the forum most likely to have jurisdiction is actually the good ol’ Supreme Court of the United States.

As perhaps only federal court junkies may recall, the original jurisdiction of Supreme Court includes actions “in which a State shall be Party”. And as Thomas Lee recently argued in an article in the Columbia Law Review, this provision was intended to permit foreign states to sue the states for treaty violations. Of course, Mexico would have to find a treaty that was self-executing, but that is a question for another day.

Just a little free advice for the government of Mexico from their friends here at Opinio Juris. Any further advice, of course, will require a retainer…

Update: I had to slightly correct my post. The Supreme Court is more likely than any other forum to assert jurisdiction, but I was incorrect in suggesting they were required to.