Saturday, April 30, 2005

William Taft IV: Neocon Bully

Chris and I had a nice little exchange a few weeks ago about a speech made by former State Department Legal Adviser William Taft IV that criticized the U.S. detention policy in Guantanamo Bay. Today's Guardian has a long expose alleging that Taft, and other U.S. lawyers, were involved in pressuring the UK's attorney general to change his mind over his view of the legality of the Iraq War.

According to the Guardian, during the run-up to the Iraq War vote in the UK, the UK's Attorney General Lord Goldsmith made a "secret visit" to the U.S. to meet with various "neocon U.S. lawyers" including Taft and his soon-to-be-successor John Bellinger (then with the National Security Adviser). After a series of "grueling" meetings, especially with Taft, Goldsmith returned to the UK with new confidence on the legality of the Iraq War.

The Guardian portrays this as nefarious, somehow, and brings in the reliable Prof. Phillipe Sands, Q.C. to sarcastically dismiss the involvement of U.S. lawyers:

How delightful that a Labour government should seek assistance from US lawyers so closely associated with neo-con efforts to destroy the international legal order.

I still think that this UK brouhaha over the Iraq War's international legality is a bit overdone, and even the Guardian suggests that the political damage to Blair may be relatively slight. All that really happened is that Goldsmith had doubts about the international legality of the Iraq War, but that he ultimately concluded that there is a plausible argument for legality. He then went to DC, where U.S. lawyers, Taft most of all, apparently, convinced him that his initial conclusion was right and stronger than he had initially thought. This is hardly the stuff of neo-con conspiracy. After all, the U.S. had drafted the original version of the Security Council Resolution 1441 on which the U.S. was basing its legal authority.

Moreover, Sands (who appears to have contempt for all U.S. international lawyers who are to the right of, say, Harold Koh) is simply wrong to classify Taft as one of the "neo-con" lawyers seeking to "destroy the international legal order." As I pointed out here, Taft was a leading voice against the U.S. policy on detentions at Guantanamo. Yet Taft still maintains today that the Iraq War was legal under the existing Security Council Resolutions. This suggests that Taft's view is a good faith legal interpretation which cannot be simply dismissed as right-wing ravings by international lawyers simply because they disagree with it.

Finally, the Guardian blithely ignores the larger evidence of Goldsmith's independence. The U.S. administration plainly believed that it had the legal authority under a theory of "pre-emptive" self defense to invade Iraq. Yet Goldsmith did not subscribe to this view and, despite his "grueling" sessions in Washington, he never did.

Friday, April 29, 2005

More on Getting Fired for Doing Your Job

Scott Sullivan of Trans-Atlantic Assembly has a thoughtful post on the Bassiouni Affair, including a kicker on Taliban detainees in Guantanamo.

See also this BBC report, forwarded by Greg Fox.

Curtiss-Wright is Back: The President as the "Sole Organ of Foreign Affairs"

Why should an otherwise boring Supreme Court opinion Tuesday in Pasquantino v. U.S. on the applicability of federal "wire fraud" statute to activities involving avoidance of foreign tax laws (via SCOTUSBlog) affect our understanding of the President's foreign relations powers?

Because Justice Thomas' opinion for the Court casually cites the legendary United States v. Curtiss-Wright case for the proposition that the President is "sole organ of the federal government in the field of international relations".

Although it may seem obvious, the Curtiss-Wright citation is actually quite controversial because it is often used to imply Presidential supremacy over all matters related to foreign affairs ranging from the interpretation of treaties and customary international law to, as we have seen recently, the intersection between state law and foreign policy.

As scholars have pointed out, the original source of the Curtiss-Wright "sole organ" language is John Marshall, but not when Marshall was Chief Justice and well after the Constitution was ratified. As such, it doesn't actually reflect any evidence of the original intent of the Constitution's framers. So by citing it as he does here, Justice Thomas is, to some degree, resurrected this broad view of Executive power, which hasn't been cited in a majority opinion by the Court since the early 1980s.

In this case, Justice Thomas uses this citation to justify ignoring the traditional common law revenue rule that courts would adopt to avoid enforcing the foreign revenue laws. Because the executive branch has brought this prosecution, Justice Thomas argues, the Court can assume that "the Executive has assessed this prosecution's impact on this Nation's relationship with Canada, and concluded that it poses little danger of causing international friction."

This seems right to me, but isn't that always the case whenever a court considers a prosecution involving a foreign revenue law? Such a prosecution is always brought by some part of the executive branch. Does that automatically mean all foreign policy issues are solved?

In any case, Justice Thomas' casual citation of the "sole organ" language suggests that there is still broad support on the Court for strong deference to the President for all matters involving foreign affairs. We've certainly seen this in deference to the President's ability to preempt state law. We'll see if this deference extends to, say Presidential orders implementing international court judgments (a la Medellin) or Presidential conduct of military commission trials (Hamdan v. Rumsfeld). I'm sure I'm reading too much into this, but the revival of Curtiss-Wright may be a clue of how these other cases will turn out.

Thursday, April 28, 2005

WTO Watch: Just What We Need, Cheaper Sugar

The WTO Appellate Body confirmed a lower panel ruling that the EU's system of subsidies for sugar producers violates WTO rules. The U.S. sugar subsidy system was similarly found in violation by a separate lower panel and this ruling suggests the U.S. will lose its appeal as well. Although it is unclear whether reducing the cost of say, Krispy Kremes, is really a good thing for America, see this release by Oxfam, the leading NGO critic of agricultural subsidies, for why this is very good for the developing world.

Will the U.S. and E.U. comply? These rulings really will test whether the WTO can overcome the opposition of very powerful domestic special interests.

Even More on the Legality of the Iraq War: A UK Lawyer's Perspective

Euan Macdonald of the Transatlantic Assembly has a much more detailed discussion of the Goldsmith memo discussed below. He usefully notes that (1) Goldsmith plainly rejects the U.S. doctrine of preemptive self-defense, at least as articulated by the Bush Administration; and (2) the Goldsmith opinion supports Blair's claim that he did have legal advice assuring him that the Iraq War would not violate international law. He also has a very interesting analysis on the possible political consequences of this memo's release.

Wednesday, April 27, 2005

The Legality of the Iraq War (Part V): UK Govt's Pre-War Legal Opinion Leaked

The Iraq War, and its legality (which I previously discussed here), continue to excite participants in the UK election campaign. Today, the long-sought legal opinion (or at least parts of it) from Lord Goldsmith, the UK Govt's chief legal advisor, was leaked to the press. (UPDATE: the UK administration has released the full opinion here.)

From this side of the pond, it doesn't look all that damaging. It reasonably suggests that the international legality of the Iraq War was plausible without a second Security Council Resolution but that seeking such a resolution was the most prudent course. Moreover, Lord Goldsmith further argues today that he received new facts of Iraqi breaches after he issued his preliminary memo. A court may have disagreed, but this advice was hardly irresponsible. (UPDATE: Some leading figures in the UK seem to feel differently, see this article in today's Guardian calling Tony Blair a war criminal (via normblog)). Still, I'm not a Brit and it will be interesting to see what role the "legality" of the Iraq War, as opposed to those generally dissatisfied over the war itself, will play in the UK elections, which will be held next week.

Forget "The Interpreter," Sesame Street is Where It's At

With all due respect to the hand-wringing over whether “The Interpreter” is too pro-UN (an impossibility in America’s current political climate, but I digress), you guys have missed the boat. Witness this: I’m watching Sesame Street with my daughter this morning and the muppets are in a furor. They can’t agree on who should start singing the Alphabet Song. Zoe is angry because Elmo always wants to start it himself. (I think this is because Elmo has gotten arrogant with his riches from Tickle-Me-Elmo a few years ago. This wouldn’t have happened if Kermit was still around.)

Anyway, who steps in? Kofi Annan. Yes, I’m serious.

“Who are you,” some random muppet asks. “I am Kofi Annan, the Secretary General of the United Nations,” he explains. (My daughter just kept staring. Nobody said public diplomacy would be easy.)

After they tell Kofi what was up, he explains that “There is no problem; you simply need to cooperate. You can all sing the Alphabet Song together.” At which point the muppets do. They are so happy, they all want to congratulate each other and Kofi. More strife as they jostle to get to be the first to congratulate each other. (Note this sophisticated comment on the fact that institutional cooperation can lead to meta-conflicts arising from the very success of the institution. Robert Keohane and Stephen Krasner have each written about this. I bet they had a part in scripting the muppet exchange. Or maybe not.)

Then Telly Monster says “I know! Let’s do this the United Nations way!” (Conflict resolution via shared norms propagated by a common institution.)

And Elmo cries: “Yeah! Group hug!!!!” And all the muppets and Kofi Annan hug each other at the same time. (I assume any similarities to the Teletubbies’ use of “Big Hug” and/or to the Abu Ghraib “pile on” pictures was purely coincidental.)

So, guys, get with it. Sidney Pollack is fine but, really, you gotta catch’em in pre-school. But I might be reading too much into this…

Careers and Internships in International Law

Jeff V., an incoming law student, posted a series of questions to a post of Julian’s which can be boiled down as follows (a) does the ICJ have U.S.-styled clerkships and (b) how can someone learn more about careers in international law? Here are some general responses.

First, concerning clerkships at the ICJ: the ICJ has not traditionally had U.S.-styled clerkships although they have begun experimenting with the idea in the last few years, in part spurred by NYU Law School. I think the clerks tended to be assigned to the ICJ as a whole (rather than to specific judges) and then particular judges could use clerks or not, to their own liking. As far as I understand it, this has meant in practice that judges from common law countries (particularly the U.S. and the U.K.) have used clerks a good amount but other judges less so. Although I don’t see anything currently listed on the ICJ website, anyone interested in clerking for the ICJ should check the site frequently as it does announce, at times, internships that are available. If I get more info on this, I will pass it along.

Besides the ICJ, you may want to think about clerking at the Iran-U.S. Claims Tribunal. Although the work of the tribunals winding down, it has used U.S. law clerks, usually after they have completed a federal court clerkship in the U.S.

As for criminal courts, the International Criminal Court has an internship/clerkship program. Similarly, both the Yugoslav and Rwandan Tribunals have employed recent law school graduates in a variety of capacities.

As for international law jobs more generally: the American Society of International Law has just published a new edition of its Guide to Careers in International Law. It is excellent. It has essays on different career paths and a list of organizations providing internships in international law. You can find more info on it at the ASIL's website. By the way, a section of that website is also devoted to careers, so check it out. (Truth in advertising: I used to be the Director of Research and Outreach for the ASIL.)

The American Bar Association also has an excellent guide to careers in international law. Moreover, see the ABA’s international internship program.

Generally, I would advise getting involved in groups like the ASIL, the ABA Section on International Law and the American Branch of the International Law Association. (Of course, to answer a specific question of Jeff's, you can also get involved with the American Constitution Society, the Federalist Society or whatever other interest groups you want.) The ASIL, the ABA, and the American Branch, however, are professional associations that include (relatively) broad ranges of views. I do think that of these the ASIL is particularly important, especially if your interest is public international law. In any case though, it is important to get involved and all of these organizations are enthusiastic about law students joining their ranks.

We'll probably have further posts on advice for aspiring public and private international lawyers. I invite readers of Opinio Juris to post comments with any helpful thoughts they might have for anyone seeking employment in the field.

ICC Watch: An Ugandan NGO Tells the ICC to Butt Out

This interview with a local Ugandan NGO suggests the ICC should back out of its Ugandan investigation (an issue Peggy discussed in more detail here). Here's a key exchange between a reporter from the East African and David Kaiza:

Does the ICC risk escalating the [Ugandan] war?

The LRA [the Ugandan rebel forces -ed.] are not the kind of people who will take threats lightly. They invariably take revenge on civilians. The impact of the ICC has been to heighten the violence. The problem with the ICC is that it has arrogated itself the responsibility to judge the process of the peace talks.
There have been accusations that although atrocities have also been committed by the UPDF, the ICC is going to investigate only the LRA.


Based on the field work we have done, there are those who want Kony forgiven. There are those who say that justice is when all the people who are in the LRA are brought to justice irrespective of whether they are at the top or not. They make reservations for the children who were abducted into the group. And they also think that those UPDF [Ugandan army] officers who committed crimes should be tried.

Sadly, the ICC is silent on what it would do with the UPDF. To make it worse, the ICC jurisdiction starts with July 2002, which means crimes committed before them cannot be investigated. People ask about the Mukura massacre. Who is going to try those NRA officers who committed that crime? [In 1989, NRA soldiers allegedly locked 69 people into a train wagon in Kumi district and set the wagon on fire].

This conflict has spanned two decades and a whole generation has been lost. I am not sure this is not the use of Africa as a guinea pig for the ICC.

I have no idea whether this is right, but I do know that the ICC may or may not have the legal authority to back out of this investigation. This means that, if the ICC really is preventing a peace, they may also have no way of backing out once they've gone in.

Maybe the ICJ is Useful After All

After bashing the ICJ a bit here, I thought it is only fair that I pass along ways that the ICJ can serve a useful though limited role in the settlement of international disputes.

First, Malaysia and Indonesia, last seen sending out naval ships to confront each other over disputed islands, appear willing to consider sending this dispute as well to the ICJ.

Second, Pakistan has suggested it will send one of its less nasty disputes with India over the Bagilar dam to the ICJ, although the World Bank is supposed to have appointed a neutral arbitrator. Later, Pakistan backed off this plan, but it still might happen.

Finally, Japan has suggested it might ask China to agree to resolution of some of its territorial disputes by the ICJ. This would be remarkable since neither Japan nor China have ever had a case before the ICJ.

One thing to keep in mind, though. If the ICJ gets involved in settling any of these disputes, it will almost certainly occur because the state parties agree to get the ICJ involved rather than as part of the ICJ's compulsory jurisdiction (to which only Japan and Pakistan, I believe, have assented). So the ICJ's usefulness, at least in these instances, really results from its operation as a "glorified arbitration tribunal" as Eric Posner has put it rather than as an independent free-standing international court.

Tuesday, April 26, 2005

Truth and Consequences in Afghanistan

In a comment to Julian’s post on “The Interpreter,” Yuval Rubinstein provided a link to this article on Prof. Cherif Bassiouni of De Paul University Law School being pushed out of his job as the UN’s chief human rights investigator in Afghanistan by the U.S. government. (Thanks also to Greg Fox for separately e-mailing this article as well as the Newsday article quoted below.)

What did Bassiouni do? For one, he asked repeatedly to speak to detainees in Afghanistan, since he is, after all, supposed to assess (among other things) how they are being treated. He “lambasted” coalition nations for not allowing independent human rights monitors to come to their bases.

According to another report in Newsday, “Washington moved to scrap Bassiouni’s post partly because the human rights situation in Afghanistan is no longer troubling enough to require it, said a U.S. official who asked not to be named.”

Human rights are so good in Afghanistan that we don’t need to monitor them? You’d think that such a turn of events is something the Administration would want to trumpet. The reality, of course, is a bit different. Consider that even the Afghan government, the government that we’re supposedly trying to help with its human rights compliance, is being left in the dark. As Newsday reports:

“[T]he Afghan [government’s human rights] commission has cited U.S. forces as the frequent obstacle to its work. Afghan officials say they have trouble even getting appointments with U.S. officers to discuss human rights cases. Also, U.S. forces bar the Afghan commission from visiting their prisons. They admit only the International Committee of the Red Cross, which doesn’t publish its findings.

Human rights advocates say the U.S. policies seem to come primarily from the military rather than the State Department. The Pentagon has withheld the results of its own investigation into human rights violations at its bases in Afghanistan, despite an initial promise to reveal them."


Once again: if the Washington official is correct that we wanted Bassiouni out because he’s not needed, then why are we keeping secret even our own reports we promised to release? The Newsday article continues:

"In countries with human rights problems as deep as Afghanistan’s, 'the commission normally passes a resolution to condemn the abuses and names a ‘special rapporteur’ to keep investigating them,' said Brad Adams, Asia director of the monitoring group Human Rights Watch. 'But in Afghanistan, the U.S. has not wanted these mechanisms to come into play.'
Last year, Washington pressed the UN body to downgrade the post of rapporteur on Afghanistan to the lesser status of 'independent expert.'"


The real issue, of course, is not human rights in Afghanistan, broadly speaking. The Independent article linked to above states that the US's main gripe was not with human rights monitoring in Afghanistan in general, but rather the monitoring of US forces in regards to human rights. (Supposedly the US could support further UN monitoring as long as it didn't apply to the US.)

So the Administration wants to give itself a pass until the situation is stabilized. This leaves a couple of questions: when was Afghanistan last stable and when do we think it will be? Assuming your answers are “a long time ago” and “not soon” then just what kind of message is the US sending with regards to the duties of occupying forces? Recall William Taft's warning about going down this road.

And, more generally, the Administration needs to think seriously about its hostility towards the very institutions that can help stabilize Afghanistan, in this case the UN and the Afghan government’s own monitoring organs.

Monday, April 25, 2005

U.S. POWs Suit Against Iraq Denied Cert

According to the always reliable SCOTUSBlog, the Supreme Court denied certiorari today in Acree v. Iraq, a petition brought by U.S. POWs who had won a judgment against the Government of Iraq for mistreatment during the Gulf War. I blogged about this case, and Prof. John Norton Moore's vehement appeal for Supreme Court cert, here.

Is Nicole Kidman a Flack for the U.N.?

According to this (admittedly right-wing) opinion piece, Nicole Kidman's latest movie "The Interpreter" is a piece of shameless pro-UN, pro-ICC propaganda. Now that seems perfectly all right to me, as long as it's a good movie. After all, movies like "Top Gun" and "Behind Enemy Lines" are basically advertisements for the U.S. Navy, so why can't the U.N. give it a shot? The key question: is The Interpreter a good movie (I welcome comments)? It appears to be doing well, although I am fairly confident its success will have little to do with the American public's feelings about the U.N. or ICC.

Sunday, April 24, 2005

Can Money Trump Article II?

Although the U.S. has signed the Law of the Sea Treaty, the U.S. Senate has not yet ratified it and substantial conservative opposition to the treaty continues to loom (as I noted here). Interestingly, the Bush Administration is seeking congressional appropriations for the International Tribunal for the Law of the Sea and the Seabed Disputes Chamber of that Tribunal, even though the U.S. does not have any obligations to support those tribunals until the U.S. ratifies and accedes to the treaty. In other words, the Bush Administration is asking Congress to spend U.S. taxpayer money on international oganizations to which the U.S. does not even belong.

There are two possible explanations for this, one which is interesting as a political matter and the other which is interesting as a legal matter.

(1) The Bush Administration is confident that it will get Senate ratification of the treaty this year, and is prudently seeking appropriations to fund tribunals to which the U.S. will soon belong.

(2) The Bush Administration is prepared to act and participate in the Law of the Sea Treaty system, including its dispute resolution systems, even without Senate ratification. After all, any appropriations for the Law of the Sea tribunals would have to be approved, pursuant to Article I, by both houses of Congress and signed by the President into law. Would appropriating the funds for the tribunal qualify as Congressional approval for the U.S. to participate in the Law of the Sea, whether or not the Senate ever ratifies the treaty?

There is some precedent for bypassing the Senate in the approval of trade agreements, but never in the case of a treaty which has already been submitted to the Senate. Still, as a practical matter, if the Senate does not ever consider the Law of the Sea treaty, the Bush Administration has the constitutional authority to commit the U.S. to adhere to the Law of the Sea Treaty as a matter of presidential policy. Moreover, if Congress approved funding for the various international tribunals, the Administration could probably claim authority to submit to the jurisdiction of those tribunals. In which case most of the point of Article II’s requirement of advice and consent by 2/3 of the Senate could be avoided.

Now I think this is almost certainly not the plan of the Bush administration, but it is an interesting legal question that I had never thought of before, and which might be exploited by future presidents.