Friday, May 27, 2005

The Importance of Non-Binding International Agreements

Just as Congress attacks the U.S. for failings in its Container Security Initiative ("CSI"),, the leading post-Sept. 11 effort to tighten security checks on shipping into U.S. ports, the U.S. announces that it is trying to expand the CSI framework to encompass all of the members of the World Customs Organization. (Brazil signed on to the CSI just this week)The WCO is one of those really obscure international organizations that tries to create uniform standards for regulating ports throughout the world. It is obscure but highly influential among major trading states. Its latest effort can be found here.

Interestingly, this framework is not a treaty nor does it impose a formal international law obligation on its member states. Yet there will be international oversight of countries implementing this framework. So even if it is not an international obligation, there will be lots of attempts to make sure we comply as much as possible.

This might be considered an international administrative network involving agency-to-agency cooperation where the President, Congress, or even the State Department have not spoken. Instead, much of this is handled directly by the U.S. Customs and Border Security Agency (which is part of the Dept of Homeland Security I think, I've lost track...).

The CSI and the WCO rules are attempts to harmonize disparate international standards and practice. What is interesting, and perhaps puzzling, is why such standards are not formalized into some sort of hard international law instead of remaining a non-binding "framework." As I've pointed out in the past, some substantial part of the Bush Administration's approach to things (think of the efforts to regulation nuclear proliferation on the high seas and to reduce methane gases in the atmosphere) relies on such non-binding international agreements. It's not "law", and it won't win over many of its critics, but it seems to get the job done.

Thursday, May 26, 2005

Amnesty's Torture List

As Peggy notes, Amnesty International's annual report is almost certainly getting more press than usual because of its aggressive condemnation of U.S. policy toward detainees in Guantanamo Bay. In fact, it's a bit more than aggressive, as this statement by Amnesty U.S.A.'s director suggests, Amnesty is putting out a list of "torture architects" and is asking foreign jurisdictions to arrest U.S. officials on this list. (UPDATE: The WSJ and the Washington Post weigh in with tough editorials jumping on Amnesty as well).

Amnesty International’s list of those who may be considered high-level torture architects includes Donald Rumsfeld, who approved a December 2002 memorandum that permitted such unlawful interrogation techniques as stress positions, prolonged isolation, stripping, and the use of dogs at Guantanamo Bay; William Haynes, the Defense Department General Counsel who wrote that memo, and Douglas Feith, Under Secretary of Defense for Policy, who is cited in the memo as concurring with its recommendations.

Our list includes Major General Geoffrey Miller, Commander of the Joint Task Force Guantanamo, whose subordinates used some of the approved torture techniques and who was sent to Iraq where he recommended that prison guards “soften up” detainees for interrogations; former CIA Director George Tenet, whose agency kept so-called “ghost detainees” off registration logs and hidden during visits by the Red Cross and whose operatives reportedly used such techniques as water-boarding, feigning suffocation, stress positions, and incommunicado detention.

And it includes Attorney General Alberto Gonzales, who called the Geneva Conventions “quaint” and “obsolete” in a January 2002 memo and who requested the memos that fueled the atrocities at Abu Ghraib; Lieutenant General Ricardo Sanchez, former Commander of US Forces in Iraq, and Sanchez’ deputy, Major General Walter Wojdakowsi, who failed to ensure proper staff oversight of detention and interrogation operations at Abu Ghraib, according to the military’s Fay-Jones report, and Captain Carolyn Wood, who oversaw interrogation operations at Bagram Air Base and who permitted the use of dogs, stress positions and sensory deprivation.


And that's not all. Attorneys are not going to get off the hook:

Furthermore, Amnesty International calls upon state bar authorities to investigate the Administration lawyers alleged to be involved in the torture scandal for failing to meet professional responsibility standards. The attorneys who wrote various legal opinions that may have provided cover for subsequent crimes and who should be investigated include Bybee and David Addington, General Counsel to Vice President Cheney; Robert Delahunty, former Special Counsel in the Office of Homeland Security, and three attorneys in the Office of Legal Counsel—John Yoo, former Deputy Assistant Attorney General, Patrick Philbin, Deputy Assistant Attorney General, and Jack Goldsmith, former Assistant Attorney General. We also call on the Justice Department’s Office of Professional Responsibility to make public the findings of its investigation into the Bybee memo.

Now I realize that folks can disagree about the legal opinions reached by government attorneys and the policies that members of the executive branch pursued in detaining and interrogating suspects in the war on terror. But Amnesty is veering dangerously close to Noam Chomsky/Ramsey Clark-land here. They are not quite there yet, but give them another year, and the once-proud Amnesty International will be simply dismissed as another hotbed of fervent leftish-anti-Americanism which is no more credible on these matters than the U.S. government itself.

Wednesday, May 25, 2005

What's Good for the Goose....Amnesty International Blasts US Human Rights Record

Amnesty International issued its 2005 Human Rights Report today, blasting the US on Guantanamo, rendition practices and the abuses at Abu Ghraib. The full report covers human rights practices around the world (or at least of 149 countries), and is generally respected as one of the best-sourced human rights reports available. And, unlike the annual State Department Report, it offers a thorough analysis of US human rights practices.

Here is the excerpt from foreword written by AI Secretary General Irene Kahn that aims directly at the US:

In 1973 AI published its first report on torture. It found that: '"torture thrives on secrecy and impunity. Torture rears its head when the legal barriers against it are barred. Torture feeds on discrimination and fear. Torture gains ground when official condemnation of it is less than absolute." The pictures of detainees in US custody in Abu Ghraib, Iraq, show that what was true 30 years ago remains true today. Despite the near-universal outrage generated by the photographs coming out of Abu Ghraib, and the evidence suggesting that such practices are being applied to other prisoners held by the USA in Afghanistan, Guantanamo and elsewhere, neither the US administration nor the US Congress has called for a full and independent investigation.

Instead, the US government has gone to great lengths to restrict the application of the Geneva Conventions and to "re-define" torture. It has sought to justify the use of coercive interrogation techniques, the practice of holding "ghost detainees" (people in unacknowledged incommunicado detention) and the "rendering" or handing over of prisoners to third countries known to practise torture. The detention facility at Guantanamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commissions have made a mockery of justice and due process.

The USA, as the unrivalled political, military and economic hyper-power, sets the tone for governmental behaviour worldwide. When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a licence to others to commit abuse with impunity and audacity. From Israel to Uzbekistan, Egypt to Nepal, governments have openly defied human rights and international humanitarian law in the name of national security and "counter-terrorism."

In the section on the Americas, AI discusses the death penalty in the US (note that this paragraph was drafter prior to the Roper v. Simmons decision) and the failure of the US to provide notice to foreign arrestees of their rights under the Vienna Convention on Consular Relations:

The USA continued to flout international human rights standards by inflicting the death penalty on child offenders, people with mental disabilities, defendants without access to effective legal representation, and foreign nationals denied their consular rights. In 2004, 59 executions were carried out by a capital justice system characterized by arbitrariness, discrimination and error. Scheduled executions of a number of child offenders were stayed pending a Supreme Court ruling on the case of a death row prisoner aged 17 at the time of the crime.

It's not all about the US, of course, though US failures make for a better headline on the press release. Among other highlights: AI criticizes the failure of the world community to act in Darfur and takes up the issue of human rights reform at the UN, noting that changes to the UN human rights machinery are needed "urgently and radically." AI also criticizes acts of terrorism and the terrorists who have "taken humanity to new depths of bestiality and brutality." Its central mission, however, is to take on state power -- particularly those states that would justify torture of any sort or water down definitions of humane treatment -- in defense of individual rights and the rule of law. AI might not be the last word on where the balance between security and rights should be struck (the report is least effective where it comments on Security Council practices and reform, nonetheless an important source of facts on who is falling short.

Wanna Sign a Treaty? Head to Turtle Bay

The U.N. announced today that it would once again hold a "treaty" day this September during which countries would be encouraged to sign various multilateral treaties. This seems like a fairly pointless event, since countries can sign treaties whenever they want. I somehow doubt that they will do so just because the U.N. is offering drinks and hor d'oeuvres along with treaty-signing.

Still, the U.N. officials are probably right to highlight the growing importance of treaties in an everyday person's life.

It was important, [a U.N. official] stressed, to remember that treaties right now are the main source of international governance. "Much of what we take for granted in our day-to-day lives is enshrined in treaties, whether you make an international telephone call or take a flight to a different country or send a parcel by FedEx," he said.

Sierra Leone Special Court Reports $50 Million Shortfall

The financing of international organizations is a complex question, but one thing is fairly predictable. Nations are less likely to make "voluntary" as opposed to "mandatory" contributions to international organizations. The Sierra Leone Special Court for War Crimes is discovering this reality the hard way, as the President of the Court reported to the U.N. Security Council this week. In testimony before the U.N. Security Council the President of the Court reported that the Special Court had received only $54.9 million in voluntary contributions whereas it had budgeted over $100 million for its four years of operation. The General Assembly and member states are being asked to pony up the difference.

WTO Watch: Key House Panel Approves Continued U.S. Membership

Not that there was much doubt, but a key U.S. House of Representatives committee has approved continued U.S. membership in the WTO. Under U.S. law, every five years any member of Congress can petition the Congress to withdraw from the WTO. As in 2000, the unlikely coalition of Socialist Vermonter Bernie Sanders and Libertarian Texan Ron Paul have made such a petition. And as in 2000, they look like they are headed for overwhelming defeat.

Tuesday, May 24, 2005

Save the Whales (By Suing in the ICJ)

Seems like Japan can't cut a break these days. While the Chinese continue to thumb their nose at Japan's attention to the graves of its war criminals, Australia is protesting Japan's palns ot increase the number of whales it can hunt. In fact, Australia's opposition party is pushing the Australian government to sue Japan in the ICJ for violating its obligations under the International Convention for the Regulation of Whaling.

Japan has never had a case before the ICJ, but if it keeps this up, that won't last long. It remains one of the few major powers to accept the compulsory jurisdiction of the ICJ (along with Australia and Britain). So such a suit could be brought, although I have no idea how the ICJ will assess whether Japan is in violation of the Whaling Convention, since that Convention allocates some administrative discretion over how many whales a country is allowed to hunt to a separate international administrative body. I doubt, therefore, that Australia has a very good case here and should content itself with using whatever diplomatic leverage it has with Japan, and the International Whaling Commission's own procedures, to try to limit Japan's growing taste for whaling.

Monday, May 23, 2005

More on the ICRC and Customary International Humanitarian Law

Ken Anderson has two posts on the ICRC today: this one addressing the criticism of ICRC in today's WSJ and this one on the ICRC CIHL study, which I mentioned in an earlier post. On the WSJ editorial, I think it -- like the Rifkin and Casey article in National Interest last month -- goes a bit too far by indicting the entire organization for what appear to be breaches in confidentiality by some ICRC observers. The problem for ICRC is that it does, in fact, do best when it operates with very little publicity in the US and European press about its important role in humanitarian operations. But the demands for funding and building support for its mission make it attractive (because it is so popular in Europe) to engage in public "tough talk" against the US. Ken notes:

The ICRC will never be as clever, as nimble, as media-savvy and connected, as ... well, cool as those organizations [Amnesty international and Human Rights Watch]. It will, however, save a lot of lives, over decades and indeed centuries, if it can resist the temptation to fashionableness. Problem is, alas, on current evidence, it is not resisting at all.

On the CIHL front, however, ICRC is making an impressive PR effort. I have to confess to have read only the executive summary of the voluminous study, but Ken raises an interesting point about the potential applicability of the study of future Alien Tort Cliams Act cases, a point apparently lost on the critics of the study in the US government, which so far have focused on its impact on US military rules of engagement. Hays Parks' (DoD General Counsel's office) talk at the ASIL annual meeting, for example, centered on the conflicts between the study and US military practices. (I raised the possibility that the study might also be used by defendants in Guantanamo hearings here.) The timing might not be great for the US to get into a full-blown conflict with ICRC on these IHL issues -- particularly if it fears (or knows) that some at ICRC headquarters are willing to leak details of abuse by US military personnel in Guantanamo and other detention centers. But as Ken points out, the US will have lost a lot of ground to what will be viewed by future courts as the definitive study of CIHL if it does not go head-to-head with ICRC on its law-making exercise.

Medellin: Reading the Tea Leaves

Let's see if I got this right.

5 votes to dismiss as improvidently granted. (Rehnquist, Scalia, Thomas, Kennedy, Ginsburg).

1 vote would have also preferred staying the case: (Ginsburg).

4 votes to remand to the Fifth Circuit to resolve all of the issues raised by the parties at the Court as well as the new ones created by the President's intervention. (O'Connor, Souter, Stevens, and Breyer).

The Court's ultimate disposition is not surprising, as Orin Kerr has pointed out, but the Court doesn't usually spend 40 pages of the U.S. Reports explaining why it is DIGging a case.

It would be dangerous to read too much into the breakdown here. I still think that it's fair to guess Ginsburg would ultimately have been happy to find in favor of Medellin, and that O'Connor is more skeptical. In theory, this whole exchange is really about whether the Court should deal with big cases while they have them, or hold back into all the issues are cleanly presented. Ginsburg appears to think that the Court should hold back, and O'Connor does not.

Paul Stephan of Virginia has put his finger on the most curious aspect of Justice O'Connor's reasoning. Her view is NOT that the Court should resolve the case, but rather that it should have granted, vacated the lower court opinion, and remanded to the Fifth Circuit. But why should the Fifth Circuit be better positioned to resolve the important issues that the Supreme Court has identified than either the Texas courts or the Supreme Court itself?He writes:

I admit to being deeply puzzled by Justice O'Connor's dissent. On the first page, she identifies three issues involving Avena and the VCCR that "deserve further consideration." She also says that "It seems to me unsound to avoid questions of national importance when they are bound to recur." Yet the three issues she identifies are fairly encompassed by the grant of certiorari. Why she concludes that the court ought to remand the case to the Fifth Circuit, rather than decide those three issues, is not explained in the opinion. She identifies as reversible error the Fifth Circuit's denial of a COA. Yet she does not clearly indicate what else the Fifth Circuit should do differently, given that it did address the VCCR issues on their merits and the independent COA issue arose only in the Supreme Court proceedings.

Prof. Stephan also notes: "that the four dissenters do not reject the 2253(c)(2) issue on its merits (although there is plenty of dicta indicating their leanings), but rather regard the issue as forfeited in this case." The 2253(c)(2) issue was probably Texas' strongest argument: that the federal statute limiting federal appellate jurisdiction barred treaty-based claims. So it is possible that Texas could have still won on the merits (but not likely).

In any case, I think Medellin is in an even better position now than I first thought. Four members of the Court are on record as to wanting this case back, and all justices appear to agree that the Supreme Court will have jurisdiction from any final Texas state court judgment. But this time, when Medellin comes back (which seems all but assured), he avoids all the nasty federal habeas obstacles and gets a clean argument on the treaty's protections and, most importantly, the President's order.

Now we might have a different Court by then because that is at least a year away. But even so, Medellin faces tough obstacles. One dilemma that future case will raise is whether the Court will defer to an Executive determination on foreign policy, as it did in American Insurance Association v. Garamendi. In that case, Justice Souter wrote the majority, and Justice Ginsburg's dissent focused on the dangers of executive authority over the states. So it is hard to say how even that case will break down.

Delightfully, however, it should provide even more fodder for discussions on this blog and law review articles. Which, of course, is the really important thing...

Medellin: So Who Won?

The Supreme Court's disposition of Medellin is here. The actual six page opinion is quite short, but the interesting part will be the concurrence by Justice Ginsburg (joined by Justice Scalia) and the dissent by Justice O'Connor (joined by Justices Stevens, Souter, and Breyer). I will try to read the tea leaves of this rather unusual coalition later(UPDATE: My thoughts are posted here), but for now, I attempt to answer the natural question to ask for those folks following Medellin: who won?

As anyone who has followed Medellin here will recall, the case involved complex questions of federalism, separation of powers, international law, and habeas jurisdiction. It attracted nearly 20 amicus briefs from a wide variety of groups from around the world. It was the very first Supreme Court case to directly consider the domestic enforceability of an international tribunal judgment involving the international obligations of the U.S. government.

And yet, the Court "DIGged" (dismissed, certiorari being improvidently granted) this potentially momentous case, which essentially means they are saying, as a formal matter, that they should not have taken the case in the first place. (For my early semi-correct predictions on dispositions, see here). Moreover, the Fifth Circuit's lower court decision denying Medellin federal habeas appellate jurisdiction for his treaty-based claim has been upheld. This is essentially what Texas wanted in the first place, so in this view, Texas "won" this case. Moreover, the Court did not grant Medellin's rather unusual request for a stay of the Supreme Court proceedings, so Texas "won" here as well.

On the other hand, the Court's opinion "DIGging" the case almost certainly relied in part on the President's unusual intervention here issuing an order preempting inconsistent state law in order to implement a World Court judgment. Medellin has already filed his new appeal in state court, based on the President's order, and he should have a decent chance of success of winning a new hearing based on his treaty claims. In fact, my original reaction was that the President's order should give Medellin a clear victory, but Texas is going to fight this order and they might make some headway. In any event, Medellin has "won" in a somewhat limited sense. He did not overturn the Fifth Circuit opinion, but he did strongly improve his chances of winning the case in Texas by forcing the President to issue the order.

In this sense, given where Medellin started, he has made some real progress in advancing his case. The argument that the federal courts should directly enforce an international court order was always going to be difficult to win, although it was the most interesting one. The President's order now transforms this case into more of a garden-variety federalism/separation of powers case. This may dismay internationalists who want to create precedents for judicial incorporation of international court judgments, but it should make Medellin's task a lot easier. Instead of attempting to convince Texas judges to follow the judgment of 15 judges in the Hague, they can simply wave President Bush's order at them. It is still no slam dunk, but it is certainly better than the desperation three pointer at the buzzer that Medellin faced just a year ago.

Much Ado About Nothing? Medellin is Dismissed

The Court today dismissed the petition in Medellin holding that certiorari was improvidently granted. Basically, this means that they are holding that they should not have accepted the case in the first place. Thanks to SCOTUSBlog for the pointer. I'll have much more to say later today. For a reminder on the issues raised by a challenge to Texas' administration of the death penalty involving foreigners, the effect of an International Court of Justice judgment, and the intervention by the President, see here.