Friday, October 07, 2005

You'd Be Smiling Too (If You Had Won the Nobel Peace Prize)


It was announced today that the International Atomic Energy Agency and its director, Mohammed ElBaradei, were awarded the Nobel Peace Prize for 2005. The Committee cited Baredei and IAEA "for their efforts to prevent nuclear energy from being used for military purposes and to ensure that nuclear energy for peaceful purposes is used in the safest possible way." They join these past winners.

If you, like me, wonder who else was nominated, you won't have the satisfaction of finding out. The Nobel Committee, unlike the Academy of Motion Pictures, does not release the list of those nominated in a given year. There is no short list of nominees announced in advance, no red carpet, no deconstructing of the nominees fashion choices. Only the nominators and, if they tell the nominee, the nominees themselves know about the nomination, though they often issue press releases to let the world in on it. But, similar to the Academy Awards, not just anyone can make a nomination. Nominators are restricted to a group that reflects the "principle of competence and universality" which under the Nobel Statute means:

1. Members of national assemblies and governments of states;
2. Members of international courts;
3. University rectors; professors of social sciences, history, philosophy, law and theology; directors of peace research institutes and foreign policy institutes;
4. Persons who have been awarded the Nobel Peace Prize;
5. Board members of organizations who have been awarded the Nobel Peace Prize;
6. Active and former members of the Norwegian Nobel Committee; (proposals by members of the Committee to be submitted no later than at the first meeting of the Committee after February 1) and
7. Former advisers appointed by the Norwegian Nobel Institute.

Yes, that's right: law professors! Who knew we had so much power?

Israeli Supreme Court Bans Use of Palestinian Civilians as "Human Shields"

On Thursday the Israeli Supreme Court ruled that the military cannot use Palestianian civilians as human shields when entering the homes of suspected terrorists. "You cannot exploit the civilian population for the army's military needs, and you cannot force them to collaborate with the army," Chief Justice Aharon Barak wrote in the ruling. "The central tenet is that it is mandatory to distance innocent local residents from the area of the hostile actions." As for the use of consenting Palestinians to assist in raids of terrorist homes, the Court ruled "when an army unit comes at night no one would refuse to cooperate out of fear.... Ninety-nine times out of 100, it is not free will."

The Jerusalem Post has details. The decision is not available in English but should be available in Hebrew at the Israeli Supreme Court website. A report on the practice of "human shields" by the Arabic organization that brought the challenge is here.
Without access to the opinion I will refrain from expressing my thoughts on the Court's decision, although comments are welcome.

"Torture and the War on Terror": A Symposium with Even More Discussion of Detainee Interrogation Policies

I have been travelling today, so I don't have much more energy left to respond to Peggy's post, most of which I agree with anyway. Let me just say that I think the somewhat sketchy news reports on the actual substance of the legislation passed by the Senate may have misled Peggy on the scope of the Senate's amendments. As I understand it, the legislation has two components: (1) It would require the military to adhere to the Army Field Manual; (2) It would require all U.S. personnel, including non-military personnel such as those in the intelligence agencies, to avoid "cruel, inhuman, and degrading" treatment of detainees held in U.S. custody overseas. Importantly, the "cruel, inhuman, degrading" language has been understood by the U.S. to coincide with the Eighth Amendment's ban on cruel and unusual punishment. But it is possible that the legislation might be interpreted to incorporate international standards of "cruel, inhuman, and degrading" which go beyond what the Eighth Amendment requires. So the legislation may sweep quite broadly.

There is obviously lots more to say about this topic, which is why I am currently in Cleveland at Case Western Reserve School of Law's symposium on "Torture and the War on Terror." (a webcast can be found here). Our topic, not surprisingly, is treatment of detainees held by the U.S. in the war on terrorism. Lots of interesting scholars, advocates, and practitioners will be speaking (including myself, for what it's worth).

Thursday, October 06, 2005

ICC Watch: Arrest Warrants Issued for Ugandan Rebels

The International Criminal Court has issued indictments for the five leaders of the Lord's Resistance Army (LRA) in Uganda. These are the first warrants the ICC has ever issued, although the ICC website has no official info on these warrants.

According to a U.N. official, the notifications went out last week to the governments of Uganda, Sudan and the Democratic Republic of the Congo, where a remnant of the LRA has taken refuge. It will be interesting to see the reaction of these governments.

It will also be interesting to see whether these arrest warrants will interfere with the ongoing peace negotiations in Uganda. The ICC Prosecutor has made great efforts to show its political sensibility, but, as I noted here and here, it is entering dangerous ground.

What Congress Has Done and Not Done to Limit Inhumane Treatment

Julian's post below on the bill passed by the Senate today misses a few key points. First, the standards set out in the bill will not apply to all detainees being held by the US, but only to those held by military personnel. This leaves the still troubling question of what the administration's current policy is toward non-military interrogations. (But it does get address the enormous public diplomacy problem presented by Abu Ghraib.) Second, the standard barring "cruel, inhuman or degrading treatment" (language that is replicated in the Torture Convention) was already contained in the obligations under the Geneva Conventions. Setting aside the technical legal argument, as a matter of policy, it wasn't until this administration that the US military was confronted with the notion that it might not be held to the GC standard. Indeed, it was the military that begged the Senate for additional guidance, even though its own internal standards (the Army Field Manual, for example) long required the higher standard of treatment.

Finally, by stating that "there is no serious legal objection to Congress getting involved in this process," seems to imply that there are non-legal objections to Congress getting involved. What are those? Perhaps pesky checks on unbridled executive power raise the "inconvenience" objection? Or is it that there is a defense for allowing military personnel to treat detainees and POWs in a manner that is not only contrary to our obligations under international law, but also offends more deeply held beliefs that we are better than that? Harold Koh might call our nation's insistence that we are better than that "good American exceptionalism." Senator John McCain might just call it morality. But it is inextricably linked with our strong tradition of the rule of law. Senator McCain's full statement today:


Mr. President, war is an awful business. I know that. I don't think I'm naive about how severe are the wages of war, and how terrible are the things that must be done to wage it successfully. It is a grim, dark business, and no matter how noble the cause for which it is fought, no matter how valiant the service, many veterans spend much of their subsequent lives trying to forget not only what was done to them and their comrades, but some of what had to be done by their hand to prevail. I don't mourn the loss of any terrorist's life nor do I care if in the course of serving their ignoble cause they suffer great harm. They have pledged their lives to the intentional destruction of innocent lives, and they have earned their terrible punishment in this life and the next.

What I do regret, what I do mourn, and what I do care very much about is what we lose, what we -- the American serviceman and woman and the great nation they defend at the risk of their lives -- what we lose when by official policy or by official negligence -- we allow, confuse or encourage our soldiers to forget that best sense of ourselves, our greatest strength: that we are different and better than our enemies; that we fight for an idea -- not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion -- but for an idea that all men are created equal and endowed by their Creator with inalienable rights.

I have been asked before where did the brave men I was privileged to serve with in Vietnam draw the strength to resist to the best of their ability the cruelties inflicted on them by our enemies. Well, we drew strength from our faith in each other, from our faith in God, and from our faith in our country. Our enemies didn't adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But everyone of us knew, every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that we, if the roles were reversed, would not disgrace ourselves by committing or countenancing such mistreatment of them. That faith was indispensable not only to our survival, but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor.

The enemies we fight today hold such liberal notions in contempt, as they hold the international conventions that enshrine them such as the Geneva Conventions and the treaty on torture in contempt. I know that. But we're better than them, and we are the stronger for our faith. And we will prevail. I submit to my colleagues that it is indispensable to our success in this war that our servicemen and women know that in the discharge of their dangerous responsibilities to their country they are never expected to forget that they are Americans, the valiant defenders of a sacred idea of how nations should govern their own affairs and their relations with others -- even our enemies.

Those who return to us and those who give their lives for us are entitled to that honor. And those of us who have given them this onerous duty are obliged by our history, and by the sacrifice -- the many terrible sacrifices -- that have been made in our defense, we are obliged to make clear to them that they need not risk their or their country's honor to prevail; that they are always, always -- through the violence, chaos and heartache of war, through deprivation and cruelty and loss -- they are always, always Americans, and different, better, and stronger than those who would destroy us. God bless them as he has blessed us with their service.

Update 10/7/05:
Julian rightly corrects me on the point about intelligence agencies. The amendment (full text here via Jurist) includes in Section 2(a) language that refers to any individuals in "custody of under the physical control of the United States Government." This would not, of course, prevent rendition practices, although could plausibly include contractors acting on behalf of the USG (regardless of the nationality of the contractor).

Congress Speaks - Defining Detainee Interrogation Policies

The U.S. Senate has voted, by a 90-9 veto-proof margin, to establish uniform and clear interrogation policies for the interrogation of individuals detained in the war on terror. Apparently, the amendment (which would be attached to a spending bill) would require adherence to the Army's existing field manual for interrogation.

I am obviously no expert in the effectiveness of interrogation methods supported by this provision, or the ones defended by the administration. (For a rousing defense of Congress' amendment, from the Weekly Standard no less, see here). But I do think that there is no serious legal objection to Congress getting involved in this process.

Congress has fairly broad authority in this area. Of course, there is a limitation on any statute created by the Commander in Chief clause of the U.S. Constitution (the existence of which I have defended here). But that limitation is itself extremely limited and could only be invoked in the rarest of circumstances. This is almost certainly not that circumstance.

On the other hand, I don't think that Congress's intervention here suggests that the President's prior policy of allowing more coercive interrogation techniques was somehow illegal, as many international lawyers have contended. In my view, the President has the discretion to set policies in this area unless and until Congress decides to get involved. Congress has been silent for a long time in this area and it is almost certainly a good thing that it is finally speaking.

"Class Action" Litigation Before the ECHR

The European Court of Human Rights last week rendered its long-awaited “class action” settlement decision in Broniowski v. Poland. The case is here and the official press release summarizing the case is here.

The case involved systemic unlawful confiscation of property by the Polish government relating to the redrawing of Poland following the Second World War. In a June 22, 2004 decision, available here, the ECHR ruled that the claim of Broniowski also implicated 80,000 similarly-situated claimants and that Poland must address their claims for compensation as well. On March 7, 2005 the Polish government approached the ECHR and asked the Court to facilitate a friendly settlement between the claimants and the government.

In the class action settlement judgment (or the so-called “pilot judgment procedure”) issued last week, the Court justified the procedure as “primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned the Convention rights and freedoms…, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications…” (para. 34) According to the press release, “It is the first time that one of the Court’s judgments has set out general as well as individual remedial measures.”

The implications of such an approach are profound. The ECHR can now issue “pilot decisions” that will require systemic, national relief to a class of similarly-situated claimants. The governments will then negotiate with the claimants under the supervision of the Court and the Court will render its settlement judgment. Anyone who has any experience with class action litigation in the United States understands the potential implications of this procedural tool. Obviously there will be significant differences between the ECHR’s “pilot judgment procedure” and Rule 23 class actions in the United States. But human rights mass claims litigation has established a foothold in Strasbourg and no doubt has the potential to take Europe by storm.

Wednesday, October 05, 2005

The ICJ President: Is Chinese Hypocrisy Better Than American Hypocrisy?

I wouldn't usually take note of this commonplace account of an address to Canadian lawyers by Justice Shi Jiuyoung, the current President of ICJ, except for a couple of statements of interest.

First, Justice Shi defended the ICJ from charges that it moves way too slowly on the grounds that the procedures and various jurisdictions involved in interstate disputes. Moreover, he said that “[i]n recent years, the court has taken a full review of its operations and as a result has introduced mechanisms to enhance its internal functions.” My skepticism of these very minor changes can be found here.

More surprisingly Justice Shi commended Canada for its leadership in the development of international law, especially the International Criminal Court. This is surprising because, of course, the most important country that has refused to join the ICC (other than the United States) is, of course, China. The Canadian paper doesn't mention this point, and I wonder if the paper would have skipped over this point if a U.S. judge had made the same laudatory comments about the ICC.

"Chorus of Hisses" Rains Down on Bolton at Yale

This is an interesting story. U.N Ambassador John Bolton addressed over 400 students at the Yale Political Union and was greeted with a chorus of boos and loud hisses. My favorite part is a Yale sophomore* reportedly chastising the Ambassador for being “extremely rude” to the undergraduate audience who were loudly hissing at him. But then he admits that Bolton “won the debate”!

What seems like audacious conduct on the part of nineteen-year-old undergrads is in fact custom for YPU events, with speakers routinely "pounded" with applause by compatriats and hissed down by the opposition.

A far cry from the alarming incident that occurred at NYU law school this past spring, in which law students exercised a heckler's veto in shouting down Justice Scalia at a ceremony at the law school, resulting in a rebuke from Dean Richard Revesz and ACLU President Nadine Strossen.

* UPDATE: The name of the Yale sophomore was originally posted but has since been deleted.

Tuesday, October 04, 2005

Now on Video: “Two Justices, Two Lords and a Lady”

Last week Harvard Law School hosted an Anglo-American Legal Exchange addressing the topic of judging. The American justices were represented by Justices Antonin Scalia and Stephen Breyer and the British Law Lords were represented by Lords Rodger and Scott, and Lady Justice Arden. You can watch the video here.

In terms of sheer entertainment value the Americans beat the Brits hands down. Breyer and Scalia were in full form, while the Law Lords responded in the bracingly old-fashioned way that someone named Lord Rodger of Earlsferry or Lord Scott of Foscote should respond.

The low point was Dean Kagan's self-congratulatory introduction of the panelists (2nd minute, Real Player) in which she noted that with the appointment of Chief Justice Roberts a majority of the justices are now Harvard Law School alums, so Harvard can “win every case.” Oh please. I suppose she inadvertently failed to mention that by her count white male Republicans win every case too.

There were numerous highlights. The first was Justices Scalia’s and Breyer’s discussion of the judicial role. Scalia suggested (25th minute) that Chief Justice Roberts’ baseball analogy is not entirely correct because of the Court’s system of certiorari. Lower courts often get it wrong and yet we don’t take certiorari. In this sense the focus is not on securing justice. On doing justice, Scalia said, “Drive out of your mind the notion that I care about your client… I am not about to do justice … to your client at the expense of doing injustice to hundreds of others… I am much less interesting in your client than about the rule of law which will be adopted thousands of times by the lower courts without the benefit of my review.” Justice Breyer’s response (29th minute), “That sounds a little callous…. But on the whole correct…. As I joke with my brother (who is a district court judge), the role of the district court is to rule wisely, quickly, and fairly, but that is not to say the job of the appellate judge is to decide slowly, foolishly, and unfairly, for that would usurp the role of the Supreme Court.”

Justice Scalia praised (44th minute) the British system of picking judges as a true meritocracy in which the bar picks the best judges to be Law Lords without regard to politics, whereas our system of appointing judges is an avowedly political system. Justice Breyer disagreed (46th minute) and said the vast majority of judges are qualified people and that the newspapers give a “warped idea of the extent to which politics enters into the process.”

Lady Justice Arden argued (51st minute) that judges should not have agendas. “We don’t go into cases with an agenda. We don’t have agendas and we shouldn’t have agendas.” Scalia’s response: “It is not agendas, but different philosophies of deciding” that explain the different approaches among members of the Court.

Lord Rodger’s discussion (55th minute) of the death penalty in various Caribbean countries was quite illuminating. These cases forced Law Lords sitting as the Privy Council to address similar concerns of constitutional interpretation in the British system. These countries do have written constitutions with a bill of rights and various death penalty challenges have raised similar issues of judicial interpretation. “It is very hard to say that it wasn’t partly a feeling about the death penalty which brought this issue to the fore…. It did lead to one lot saying the constitution should be interpreted as a living instrument … and other people [taking] a rather strict constructionist view.”

Justice Breyer quipped (105th minute) that writing opinions is like attending a faculty meeting. “People sit there and think ‘I hope it’s going to be short’…. Then people start to talk and then think, ‘If everybody else will just keep quiet and we can get out of here.’ But then there comes a tipping point, and at the tipping point enough people have spoken that others think ‘Well if everyone is going to speak they might as well hear something intelligent.’”

The final question was on the use of foreign law. There was a 3-2 split among the panelists on the practice. Lord Scott argued (119th minute) that judges would be neglecting a valuable tool if they didn’t look to such decisions. “It’s absurd not to do that.” To which Justice Scalia replied, “Spoken as a good common law judge and were I a common law judge I think I would do the same. If I were making up the law, I would go and see how other countries thought it was good to make it up…. Now I agree if you believe in a living Constitution, then of course consult foreign law… You may as well consult the Ouija Board.” Breyer’s response: “The notion that it is a new idea to look to other places to find out how people settle similar legal problems is perhaps an ahistorical notion.” Lord Rodger’s view: “The inevitable tendency is that you look with favor on the cases that decide the point in the way that you … want to decide it,… and you reject the vast tract of authority that goes the other way…. I get relatively little assistance from them.” Lady Arden noted that in the British system we are bound by EU and ECHR decisions. But beyond that, with human rights, we are greatly assisted by how other judges thought about fundamental problems. “It is helpful.”

Well that clears things up. If you don't do it you are absurd and ahistorical; if you do do it you may as well be picking your friends or channeling the dead. Let's just hope that if this latter interpretive device gains currency there will be a preference for channeling the Founding Fathers rather than Sir William Blackstone.

Monday, October 03, 2005

Posse Comitatus and the Shield of Achilles

In the aftermath of Hurricanes Katrina and Rita, and in anticipation of any possible catastrophic terrorist attack, there’s been a lot of talk lately about revising the Posse Comitatus Act of 1878. (See here and here.) The Act (as amended) explicitly prohibits the use of the Army or Air Force for civilian law enforcement. It reads in whole:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Although this is a criminal statute prohibiting the use of the Army or Air Force by civilian authorities for law enforcement, it has come to be viewed as a more general policy statement concerning the limits of military authority in the civilian sphere. As such, DoD regulations have directed the Navy and Marine Corps to act as if the Posse Comitatus Act applied to them as well.

Col. John Brinkerhoff, (USAF ret.) who is a former Associate Director of FEMA, has described this shifting interpretation of the Posse Comitatus Act. He argues that the Act, as written, is vague and imprecise and a more thorough modern statute is needed to properly define the military/civilian relationship in today’s terms.

While the Act may be vague, there is disagreement as to whether the proper response is a loosening to allow broader use of military personnel. Major Craig Trebilcock has written that “The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues.”

Perhaps stemming from this sense that the Posse Comitatus Act has already been gutted, there are others who argue that rather than loosening the Act, its original conception must be reaffirmed. A student note from a 1997 issue of the Washington University Law Quarterly argues why any relaxation of the Act is a bad idea. Military analyst Austin Bay is also wary of weakening the Act, arguing that while the military is very good at providing emergency communications and transportation assets, usurping the responsibilities of state and local officials is a mistake. As he explains, “Local and state authorities have both the intimate and institutional knowledge that translates into better crisis planning and better crisis improvisation.”

The arguments against a weakening of the Act generally boil down to (a) we don’t want to go down a slippery slope in allowing increased military involvement in civilian affairs and (b) local law enforcement is better at most of this stuff anyway.

This is an important issue that can set the tone for how we respond to future crises ranging from terrorist attacks to natural disasters to riots. Even complex criminal investigations. In The Shield of Achilles author Philip Bobbitt, a scholar and practitioner in national security and constitutional law, argued that the interplay of law, history, and strategy defines how states organize themselves. As military threats and strategies evolve, so do states. The possible revision of the Posse Comitatus Act is part of a larger debate as to whether we have struck the right balance in the allocation of powers in the face of current threats. The arguments that are made as part of this discussion, as well as the result itself, may tell us much about how we are—or are not—being changed by recent events.

What's Next After Roper and Atkins?

Now that the Supreme Court in Roper and Atkins has relied on foreign and international practices to rule that capital punishment is cruel and unusual when applied to juveniles and the mentally disabled, there has been much speculation as to whether this portends the abolition of the death penalty entirely. My prediction is that the next push for comparative constitutionalism in the Eighth Amendment context will not be the death penalty but rather juvenile life sentences. A story in the New York Times on Sunday noted that "Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life," and that "life without parole was a legal impossibility in much of the world." Article 37 of the Convention on the Rights of the Child, which the Roper Court relied upon, provides that "neither capital punishment nor life imprisonment without possibility of release shall be imposed" for juveniles. The Times' story is a rather open and unobjective appeal to question the American approach in meting out this punishment.

The problem is the Court in Roper relied on the continued practice of punishing juveniles with this sentence as a justification for eliminating juvenile death penalty. "To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person." The possibility of life without parole for juveniles was a justification for the result in Roper. It will be difficult for Roper to now be a justification for the impossibility of life without parole.

More importantly, assuming a global consensus against the punishment of life without parole for juveniles, it will be exceedingly difficult to identify a national consensus in this country against the practice. The New York Times survey highlighted the strong trend toward this punishment, not away from it. According to the survey, approximately 4,000, or 3 percent of all 132,000 prisoners sentenced to life without parole, were juveniles when they began their sentence. It is doubtful that existing community standards in this country will support abolition of this practice. And Roper underscored that we only look to foreign opinion to confirm the centrality of rights within our own heritage.

Capitalism, er, Socialism with Chinese Characteristics

This weekend marked the 56th anniversary of “communist” rule in China. In a speech at Tiananmen Square Premier Wen Jiabao proclaimed that “History has eloquently proved that socialism with Chinese characteristics and the road that Chinese people have chosen are the only right way.” Which essentially means that they will follow Deng Xiaoping’s maxim to “seek truth from facts,” which means “do what works,” which means “capitalism.” Whereas Marx proclaimed the “abolition of private property,” the Chinese Constitution now proclaims that “citizen’s lawful private property is inviolable.” It is of course inconvenient for a Marxist society to proclaim that they are marching inexorably toward the “only right way” of capitalism. Better the euphemism “socialism with Chinese characteristics.” Although their economic motto 具有中国特色的社会主义 uses Chinese characters, speak to any Chinese entrepeneur today and they will increasingly pronounce it with a cheerful 18th-century Scottish lilt.