Friday, September 09, 2005

Padilla is Back in Court - And Loses One More Time

The Fourth Circuit's new opinion on Jose Padilla's challenge to his detention as an unlawful enemy combatant is here (thanks to Curtis Bradley for the heads up). The holding, by Judge Luttig (an oft-floated name for the Supreme Court) is:

We conclude that the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the
United States of September 11, 2001.

I'll blog more about this later. Must run to class!

Thursday, September 08, 2005

Chief Justice Roberts and Executive Power: The Clerkship Inheritance

It is well known that Judge John Roberts served as a law clerk to the late Chief Justice Rehnquist, whom Roberts is quite likely to succeed. But less attention has been paid to the actual cases Roberts may have worked on as a law clerk for Rehnquist, even less attention to the cases that Rehnquist worked on when he was law clerk to Justice Robert Jackson in 1952. It turns out that Rehnquist most likely worked on Youngstown Sheet & Tube v. Sawyer , perhaps the most important case dealing with the scope of the President's executive power until Dames & Moore v. Regan, decided in 1981. Of course, it just so happens that Rehnquist was clerking for Jackson when Youngstown was decided, and Roberts was clerking for Rehnquist when Dames & Moore was decided. Will the Jackson-Rehnquist-Roberts tradition lead to yet another seminal case on executive power? It is quite likely.

Dames & Moore and Youngstown both involved questions of the scope of the President's power to unilaterally (meaning without authorization from Congress) pursuant to his general foreign affairs power.
The scope of this power is obviously central to many of the war-on-terrorism related cases facing the Supreme Court in the near future (e.g. Hamdan- the military commission case, the Hamdi enemy combatant cases, and the Guantanamo detainee cases). As the new Chief Justice, Judge Roberts is likely to rule on many, if not most of these cases.

If I had to guess, I would guess that Roberts will likely be very sympathatic to a broad reading of the President's foreign affairs power. Like Jackson, who served as Attorney-General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts' main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General. His immediate mentor, Rehnquist, was also well-known for his willingness to invoke deferential doctrines like the political question doctrine to shield the executive's foreign affairs determinations from judicial review. Roberts' own brief record on the D.C. Circuit partially confirms this, although his concurring opinion in Acree v. Iraq (upholding the President's determination divesting U.S. POWs of judgments won against Iraq) relies solely on standard arguments of statutory interpretation.

We'll have to wait and see, but it would be an interesting twist of fate if Roberts were to pen the next great executive power case, building on the clerkship inheritance of Justices Jackson and Rehnquist.

Wednesday, September 07, 2005

From Scandal to Reform at the U.N.

The Volcker Committee has delivered its report on the oil-for-food scandal at the UN. See also the BBC report about it here.

Although it finds no direct wrongdoing by Kofi Annan, the Commission puts at his feet the responsibility for the Oil-for-Food Program being inadequately managed and going awry. We’ve already written much on the various allegations and preliminary findings. Now is the time, particularly with all the reform issues that will be debated in the coming weeks at the UN, to focus on what needs to be done so that there is some real financial accountability. The Committee makes the following recommendations:

1. Create the position of Chief Operating Officer (“COO”). The COO would have authority over all aspects of administration and would be appointed by the General Assembly on the recommendation of the Security Council. The position would report to the Secretary-General and the United Nations Charter should be amended as appropriate.

2. Establish an Independent Oversight Board (IOB) with a majority of independent members. In discharging its mandate, the IOB should have functional responsibility for all independent audit, investigation and evaluation activities, both internal and external, across the United Nations Secretariat and those agencies receiving funds from the United Nations and for which the Secretary-General appoints the executive heads..

3. Improve the coordination and the oversight framework for cross-Agency programs.
Strengthen the quality of the United Nations management and management practices.

4. Extend the financial disclosure requirement well below the current assistant secretary-general level within the organization and specifically include the Secretary-General and the Deputy Secretary-General as well as all UN staff who have any decision-making role in the disbursement or award of UN funds (eg. Procurement Department, Office of the Controller).

5. Expand and better define the United Nations conflict of interest rules so that they encompass actual, potential and apparent conflicts of interest.

6. Agencies involved in a United Nations program are entitled to reasonable support for “overhead” as well as direct expenses. In the context of the Oil for Food Programme, those charges were excessive and the Agencies involved should return up to $ 50 million in excess compensation secured as a result of work performed under Security Council Resolution 1483.

While independent review boards and other such structures play their part, what is most sorely needed is a culture of accountability. The Committee is correct for pointing out the organizational changes that need to be made but we also need to focus on the attitudinal changes that are required. In the era of Enron, the importance of fostering such a sense of corporate ethics, as well as methods of formal oversight, should be of no surprise.

A couple of days ago, I posted some observations on what private lawyers can bring to public international law. Here is another example. If there’s one thing that private attorneys have been grappling with in recent years (especially in the U.S., which takes financial transparency particularly seriously), it is the elucidation of best practices for financial accounting, disclosures, and decision-making. Some of the insights we have gained due to recent corporate scandals can be put to use in the service of building better international organizations. The U.N. will only be as good as we make it.

Tuesday, September 06, 2005

More on the U.S. and Foreign Aid: Taking Cash From Sri Lanka

Apropos of my post last week, U.S. Secretary of State Rice has made a point of publicly thanking foreign countries for their contributions to the Hurricane Katrina relief efforts. Here is an excerpt from her news conference:

. . we have, in fact, had offers from more than 70 countries around the world. We are now putting those offers to good use. We have used Canadian airlift. Singaporean helicopters were in the area and have helped with people. We have offers from France and those supplies will be taken up. We have a need, as a matter of fact, for - in some parts of the devastated areas -- for meals ready-to-eat, the MREs, and we have gone out to countries to ask for more of those. We've had cash contributions.

I just want to say that people have said without fail that the United States is a compassionate country that has helped so much when there has been devastation around the world that they want give back to the United States. And that should make us feel good as Americans to know that people acknowledge how much we have been able to help and that they now want to help us.

The United Nations has mobilized their disaster experts. I want to thank Secretary General Kofi Annan for that. Their people are sitting with our people in Washington to plan out UN support. So there's just a lot.

And if I could just close with one story that is particularly heartening to me, the small country of Sri Lanka, which has just gone through its own devastation because of a tsunami, is one of the cash contributors to this effort. And that says something about the heart of the world as well as the heart of America.

Monday, September 05, 2005

Asian Arms Deals: Number One with a Bullet

To the surprise of none and the concern of many, a recent report finds that Asia has overtaken the Middle East as the developing world’s leading market for arms. China, India, Taiwan, Pakistan, and South Korea are among the developing world’s top ten arms importers. And, while China has been the developing world’s top importer from 2001 and into 2004, in 2004 India got the top spot. Number one with a bullet, so to speak.

It also comes as little surprise that the top exporter into the region is Russia. Besides sales to China and India, Russia has also focused on building markets in such once (and future?) hotspots as Indonesia, Malaysia, and Vietnam.

Peggy, Julian, and I have written before on the lack of solid regional arrangements in Asia on issues ranging from dispute resolution to human rights. The topic of arms transfers definitely lends itself to a discussion of the uses of international organizations to increase transparency and also for confidence building. But I want to leave that for another day.

Instead I want to point out two sentences from this report that, as a former transactional attorney, caught my eye:

"Russian leaders have made important efforts, in recent years, to provide more flexible and creative financing and payment options for prospective arms clients," the report said.

"It has also agreed to engage in countertrade, offsets, debt-swapping, and, in key cases, to make significant licensed production agreements in order to sell its weapons."

What I see here is how creative financial lawyering is used to facilitate the arms trade. Once again, no surprise, but perhaps the role of private lawyering—for good or ill—doesn’t get quite enough attention in our discussions of so-called high politics.

I remember talking a few years ago to one international lawyer who has been involved in international dispute resolution issues in Eastern Europe, Africa, and Asia. She said that one of the great untold stories in peace-building was the work of transactional lawyers who did the grunt work of building financing mechanisms to channel capital inflows to post-conflict regions and who solidified peace agreements that were on paper with joint ventures on the ground. These joint ventures that gave participants an interest in a communal future. They changed the “payoff structure” as rational choice theorists would say. Business joint ventures as a step toward political joint ventures.

In our discussions about whether law is or is not effective in changing the behavior of states, we sometimes lose sight of the fact that law is most often used as a tool to facilitate one’s ends. And, even when discussing politico-military issues, we may need to focus a bit more on the role of private, transactional, lawyering in order to see more clearly the pas de deux of international law and politics.