Saturday, October 22, 2005

The Golden Rule of Enemy Detention

I just finished attending the International Law Association Conference in New York and one of the highlights was the insightful commentary on the treatment of detainees in the war on terror. I was particularly impressed by a new professor, Geoffrey Corn of South Texas Law School. Corn was a former Special Assistant to the Judge Advocate General for Law of War Matters, and therefore spoke with far more authority than the typical idealistic academic.

There was much debate on the proper standard for detainees. Professor Corn cut to the chase and articulated what is the best standard that should be applied in the current war on terror. That standard is that you should do nothing to an enemy detainee that you would not wish the other side to do to one of your subordinates. Note that it is not the treatment you would wish for yourself if you were detained and interrogated, for a soldier, if necessary, will willingly die for his country rather than divulge certain information. But rather it is the standard of treatment that you would want one of your men to face if he were detained.

Corn emphasized that the need for legal standards is essential not just for the detainee, but also for the one who detains. It is for their humanity as much as the detainees that we need to adhere to standards.

Corn stated that he regularly taught this standard in JAG school. The substance of such an admonition is also expressed in Army Field Manual 34-52 ("The use of force, mental torture, threats, insults, or exposure to unpleasant and inhumane treatment of any kind is prohibited by law and is neither authorized nor condoned by the US Government....The absence of threats in interrogation is intentional, as their enforcement and use normally constitute violations of international law and may result in prosecution under the UCMJ.")

This standard is a simple one, but one that brilliantly resolves many problems associated with an admittedly incommensurate rule. One might call it the Golden Rule of Detention. It also happens to resonate with one of the primary motivations for state compliance with international law: reciprocity.

UPDATE: There is an informative article in the New York Times Magazine addressing the difficulty of where to draw the line when soldiers are on the ground facing threatening circumstances. It addresses the question of "the line that separates nonlethal force that is justified - and sometimes very painful - from nonlethal force that is criminal." Not directly relevant to enemy detention, but underscores the need to draw lines between what is criminal mistreatment and what is not. Read it.

What is Feinstein Thinking in Amending the ATS?

There has been much speculation in various academic circles as to why Senator Dianne Feinstein--a liberal Democrat representing a state that has been at the vanguard in applying Alien Tort Statute--would propose amendments to the law. Here is her own statement as to why she perceives a change to be necessary:

“Many recent legal cases have demonstrated the need for clarification of the meaning and scope of lawsuits filed in our federal courts by foreigners for alleged violations occurring outside the United States... Judges have grappled in interpreting and applying the relevant law for years with no consensus. The lawsuits should be able to go forward, but judges need better legal tools to understand the cases that come before them....Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of the Alien Tort Statute. I hope this legislation will settle the questions that surround this 200-year-old law by providing a reasonable legal means that both plaintiffs and defendants can rely on to litigate their differences. It is time for Congress to bring clarity to the law and I believe this legislation does so.”

According to her press release, her proposed amendment would:

  • Specify a legal standard convicting defendants of wrongdoing if they directly participate with specific intent to commit the alleged tort;
  • Codify international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy;
  • Expand on existing statutory law, the Torture Victim Protection Act;
  • State that federal courts shouldn’t proceed with tort claims when the President adequately certifies that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the U.S.;
  • Maintain that every effort should be made to try these cases in the country of origin before granting jurisdiction in U.S. courts;
  • Invoke a 10-year statute of limitations on Alien Tort Statute charges filed against defendants; and
  • Disallow contingency fee arrangements for legal representatives of plaintiffs or defendants.
UPDATE: Senator Feinstein provides a longer explanation of her motivations in her introduction of the bill (available in the Congressional Record here, here, and here). The essence of her motivation was that Sosa did not address which international law claims by foreigners should be heard in U.S. courts and the standard of liability for U.S. companies facing these human rights charges. The Court expressly invited congressional guidance and Senator Feinstein indicated that she believes it is the burden of Congress to "pass legislation that settles on a reasonable legal means that plaintiffs and defendants alike can rely on to litigate their differences." (Thanks to Ed Swaine).

Thursday, October 20, 2005

Spanish Warrants Issued for U.S. Soldiers

This story will no doubt heighten trans-Atlantic tensions. A Spanish judge has issued arrest warrants for three U.S. soldiers whose tank fire on a Baghdad hotel killed Jose Couso, a Spanish journalist. According to the report, the United States has undertaken three separate investigations to determine whether the GIs engaged in any unlawful conduct. In each case they were exonerated. One would have thought that would be the end of the matter. But Spain now plans to prosecute the soldiers for unspecified "delitos contra la comunidad internacional."

By issuing these arrest warrants, the Spanish judge is clearly second-guessing the conclusions and thoroughness of our military investigations. Of course, any soldier who unlawfully kills an innocent civilian in the course of war should be punished. Central Command spokesman Brig. Gen. Vince Brooks has previously stated that "We don't target journalists deliberately -- not now, not ever." Spain should take this position more seriously.

As a political and strategic matter this is a bad move for Spain. First, there is no legal obligation for the United States to extradite these soldiers. Article 3 of our extradition treaty with Spain provides that "[n]either of the Contracting Parties shall be bound to deliver up its own nationals." The warrants likely will not meet with success.

Second, these warrants likely will discourage freedom of the press (especially foreign press) in the theater of war, which will inure to the detriment of all of us. As the Spanish government has noted, reporters such as Couso are "our eyes, our ears, our lives--anonymous people behind a microphone." In 2003 journalists embedded in Iraq signed waivers that agreed to hold the United States harmless in the event of death. Next time the United States will look with even greater skepticism at the prospect of any journalists on site.

Third, these arrest warrants will embolden the United States to resist joining the ICC for precisely the reasons they have expressed: fear of politically-motivated foreign prosecution of U.S. soldiers for debatable conduct in war. Conservative blogs are already abuzz that these warrants prove that the United States should never join the ICC. See here and here.

Fourth, there are plenty of other journalists who have been killed in Iraq by both sides. Why target this one incident? We do not see, for example, the Spanish judge issuing an arrest warrant for the Iraqi insurgents who killed a Spanish journalist on April 8, 2003, one day after Couso was killed.

Finally, the precedent this may set is remarkable. Any country whose civilians have been killed in foreign battle as a result of any questionable "collateral damage" may be entitled to prosecute foreign soldiers and officers. Are all of these subject to claims of "delitos de asesinato" as well? Under this precedent, countries such as Britain, France, Germany, Iran, Jordan, Lebanon, Poland, Ukraine, and the United States may also issue arrest warrants for those thought responsible for any suspicious deaths of their journalists who have died in Iraq. We are witnessing a yearning for the domestication of war.

For its part, it appears that United States refused to cooperate in the Spanish investigation. Had it done so and been able to allay the suspicions of the Spanish authorities, it may not have come to this. Apparently the Spanish authorities made two requeststo the Bush Administration, including an offer to fly to the United States to interview the soldiers. The judge wrote, "Given the nonexistent judicial cooperation offered by the American authorities in elucidating the facts" the arrest warrant is "the only effective measure for assuring the involvement of the accused in the process." It will be important for the United States to disclose its version of events in this regard.

The full text of the arrest warrant (in Spanish) is here.

Wednesday, October 19, 2005

Senate Considers Removing International Law from the Alien Tort Statute

Senator Dianne Feinstein, a Democrat from California, has introduced a potentially revolutionary amendment to every international lawyer's favorite statute, the Alien Tort Statute. While Sen. Feinstein calls her amendment a "clarification," it looks to me like she is proposing a near-complete evisceration of the Alien Tort Statute as we (international lawyers) know it. And such an evisceration is almost certainly a good thing.

Since 1980, when it was first invoked to allow aliens to bring suits alleging violations of international human rights law, the Alien Tort Statute has become a vehicle for advocates of international law within the U.S. International lawyers loved the statute because it opened the door to federal court vindication of customary international law, a type of law rarely recognized by courts in other contexts. In recent years, advocates have used the ATS to sue large corporations and, more recently, the U.S. government for alleged abuses arising out of the war on terrorism.

If enacted, the Feinstein amendment would continue to permit lawsuits for genocide, torture, slavery and slave trade, extrajudicial killing, and piracy. But, unlike the current open-ended ATS, those are the only claims you can bring under the statute (creative claims for violations of, say, international environmental rights, would not be permitted). Most importantly, the definition of these claims would be statutory as opposed to based on international custom, which is notoriously fuzzy and evolving.

The amendment has some other salutary provisions. It would give the President the power to terminate an lawsuit if he certifies in writing that the suit would have a "negative impact" on U.S. foreign policy. It also appears to shield corporations from theories of "aiding and abetting" liability by limiting damages to defendants who are "direct participants acting with specific intent to commit " one of the specified torts."

In sum, Sen. Feinstein is proposing that Congress "de-internationalize" the Alien Tort Statute. Instead of looking to foreign courts or international tribunals (or to international law professor articles), courts considering a claim under the ATS would look to the text of the statute and the legislative history. Victims of serious human rights abuses would still be able to bring their lawsuits, but they would have to meet U.S. statutory standards, and not fuzzy international ones.

I have no idea whether this bill has a good chance of passing, although I think its sponsorship by a moderate Democrat is very promising.

* Here are some key excerpts from the bill

‘‘§ 1350. Alien’s action for tort
‘‘(a) JURISDICTION OF DISTRICT COURTS.—The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.


‘‘(c) LIABILITY FOR DAMAGES.—Any defendant who is a direct participant acting with specific intent to commit a tort referred to in subsection (a) against an alien shall be liable for damages to that alien or to any person who may be a claimant in an action for the wrongful death of that alien.


‘‘(e) FOREIGN POLICY INTERESTS OF THE UNITED STATES.—No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.

International Law Weekend

From this Thursday through Saturday, the American Branch of the International Law Association (and co-sponsors including the NY City Bar and the American Society of International Law) will hold International Law Weekend 2005 at the House of the Association of the Bar of the City of New York, 42 West 44th Street, NY, NY. Links to the program and registration materials are available here.

Registration is free for students and members of one of the co-sponsoring organizations. Otherwise, registration is $50.

If you are attending, please swing by to say hello to Roger or me as we will both be there. Roger will moderate a panel entitled “The Charming Betsy and the Role of Presumptions in International Law” (4:00 pm to 5:30 pm on Friday, October 21st ) and I will moderate a panel on UN Reform and the ICJ (2:15 pm to 3:45 pm on Friday, October 21st).

We hope to see you there.

"The Mother of All Trials"

Michael Scharf argues that the trial of Saddam Hussein is the "mother of all trials." He makes this argument based on (1) the scale of atrocities; (2) the status of the accused; (3) the level of interest of the international community; (4) the legal precedent the trial will set; and (5) the effect of the trial.

Personally, I have a hard time ranking this trial above the Nuremberg trials. Having just returned from a conference in Nuremberg, Germany that focused on the legacy of those trials, it is difficult to avoid the conclusion that the Nuremberg Trials were the genesis for the modern international human rights movement. But to avoid further bias of the poll, I will refrain from further elaboration. What do you think? Scroll down and vote.

Which International Criminal Trial is the Most Important?
Nuremberg Trials of 1945
Adolf Eichmann Trial of 1961
Klaus Barbie Trial of 1987
Nicolae Ceausescu Trial of 1989
Slobodan Milosevic Trial of 2002-05
Saddam Hussein Trial of 2005-06

Free polls from

Saddam Hussein Trial Blog

Michael Scharf at Case Western Law School, together with a group of other law professors and professionals with deep knowledge about international war crimes tribunals, has put together a very useful website and blog on the Saddam Hussein trial, aptly named Grotian Moment. It is well worth a visit.

Update: Of course, Julian posted this blog endorsement a couple of weeks ago. Two endorsement are better than one, no? We'll add Grotian Moment to the blogroll for easy access.

"Open Skies" Agreements - It's a Good Thing Congress is Not Involved

The U.S. entered into a new round of negotiations this week with the E.U. for "open skies" air transport agreements. These agreements govern the terms of air traffic rights between U.S.-based and E.U. based-carriers, and the intention is to liberalize these rules so that air carriers can fly to directly to more cities on each side. In other words, more direct flights to more places. This could only be a good thing. Maybe one day, I'll be able to take Lufthansa from NY to San Francisco.

Air transport seems to be an area that could use more, rather than less, international coordination. Even the WSJ($) editorial page seems to think so. There is the 1944 Convention on International Civil Aviation (the Chicago Convention) but the important agreements appear to be bilateral, such as this recent agreement between the U.S. and Mali. On the other hand, since the majority of the world's air traffic flows between the U.S. and Europe, perhaps no worldwide negotiations are needed.

Moreover, none of these current agreements appear to require U.S. Senate confirmation or any congressional confirmation. Talk about unchecked executive power! But Congress' non-involvement may also explain why there are so many (72 and counting) and why they are so uncontroversial.

Australia Seeks ICC Referral Against Mugabe

Sometimes, countries really act in ways that don't appear motivated by narrow material self-interest. Australia's recent campaign to win a Security Council referral against Zimbabwe President Robert Mugabe is a good example of this type of moralist foreign policy. Australia has no obvious national interests at stake in Southern Africa. It stands pretty much alone in its level of outrage. But it is outraged nonetheless and it is taking action.

More on Amnesty and the ICC Arrest Warrants

U.N. Secretary-General Kofi Annan has praised the issuance of the ICC arrest warrants for top Ugandan LRA rebels. He noted that "the ICC only intends to prosecute those LRA senior leaders who are alleged to bear the greatest responsibility for the most serious crimes. He therefore urges all eligible LRA combatants to take advantage of existing disarmament and reintegration programmes." This is an interesting take on what the ICC may be doing. The ICC prosecutor's approach may be one of attempting to drive a wedge between the indicted top LRA rebels on the one hand, and the rank and file LRA soldiers on the other, hoping that the latter will lay down their arms in exchange for an assurance of amnesty. The U.N. has more on the Annan statement here.

Meanwhile the ICC prosecutor also has issued a statement in which he emphasized that the matter was referred to the ICC by the Government of Uganda in December 2003 and confirmed again in July 2004. One might well interpret such a State referral as obviating the need for compliance with the complementarity doctrine, as the State is requesting the prosecution before the ICC rather than national courts. Put differently, can there be an Article 17 objection based on complementarity where there is an Article 14 referral by a State?

The problem with this position is that in this case a Ugandan government agency, the Uganda Amnesty Commission, is still maintaining that all LRA rebels--including those indicted by the ICC--are eligible for amnesty. According to the chair of that commission, Ugandan high court judge Peter Onega, "As far as the amnesty law is concerned, all the people who surrender to us are still eligible for a blanket amnesty including the five who were indicted by the ICC." That conclusion is based on the Ugandan Amnesty Act of 2000 which defines amnesty as "pardon, forgiveness, exemption, or discharge from criminal prosecution or any other form of punishment by the State" and is broadly extended to anyone who "engaged in war or armed rebellion against the government of the republic of Uganda." Thus under Ugandan amnesty law, the LRA rebels are guaranteed that they will not be "prosecuted or subjected to any form of punishment for the participation in the war or rebellion for any crime committed in the cause of the war or armed rebellion."

So what happens when a high court judge who chairs a government commission pronounces that amnesty is still available under local law to individuals indicted under the ICC, but at the same time the government has referred the entire conflict to the ICC for investigation? Article 17(1)(b) states that a case is inadmissible under the complementarity doctrine if a "State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute." Can amnesty guaranteed under local law render a case inadmissible notwithstanding a subsequent State referral? It is difficult to reach a firm conclusion without an intimate knowledge of the ICC and Ugandan law.

"Ultimately it is Ugandans who have to decide what is best for them. Whatever they choose, it should not hinder reconciliation and healing and yet it should not encourage impunity and hurt the victims yet again," said Archbishop Desmond Tutu. It appears Ugandans may not know which path is best for them, leaving successful prosecution before the ICC in a state of uncertainty.

Related links
ICC Watch: Uganda Arrest Warrants Unsealed
Peaceful Settlements in Uganda Jeopardized by ICC Arrest Warrants

Tuesday, October 18, 2005

Is McCain Amendment a Step Backwards?

Ian Fishback's open letter to Senator John McCain cried out for clear rules on detainee interrogation. He wrote:
"For 17 months, I tried to determine what specific standards governed the treatment of detainees by consulting my chain of command .... Instead of resolving my concerns, the approach for clarification process leaves me deeply troubled. Despite my efforts, I have been unable to get clear, consistent answers from my leadership about what constitutes lawful and humane treatment of detainees. I am certain that this confusion contributed to a wide range of abuses including death threats, beatings, broken bones, murder, exposure to elements, extreme forced physical exertion, hostage-taking, stripping, sleep deprivation and degrading treatment. I and troops under my command witnessed some of these abuses in both Afghanistan and Iraq."
Senator McCain responded to this letter with the "McCain Amendment" which he argued was necessary because our soldiers were crying out for clear rules:
"I can understand why some administration lawyers might want ambiguity, so that every hypothetical option is theoretically open, even those the President has said he does not want to exercise. But war does not occur in theory, and our troops are not served by ambiguity. They are crying out for clarity. The Congress cannot shrink from this duty, we cannot hide our heads, pulling bills from the floor and avoiding votes. We owe it to our soldiers, during this time of war, to take a stand."
Marty Lederman over at Balkinization has an interesting post now arguing that the McCain Amendment as amended by Senator Ted Stevens may actually be a step backwards. Lederman argues that:

"if the Congress enacts the Amendment as so limited, it will be a major step backwards from where the law currently stands. This can't be overemphasized: If Stevens is successful at adding his seemingly innocuous "augment[ation]," it would make the law worse than it currently is... [I]f Senator Stevens has his way, and successfully exempts the CIA from the McCain Amendment's otherwise unequivocal ban on cruel, inhuman and degrading treatment, the Congress will for the first time have ratified the Administration's view that such cruel, inhuman and degrading treatment is not uniformly off-limits, and will have given a green light to the CIA to engage in such conduct. Moreover, as explained above, that very unfortunate result would not be offset by any meaningful improvement in the law as it applies to the Armed Forces."
Meanwhile, Jon Holdaway, a former JAG officer over at Intel-Dump, objects to the McCain Amendment for a completely different reason:

"I would support an amendment that directed the military to create rules to protect detainees from such treatment, or which strengthens provisions of the Uniform Code of Military Justice to make such treatment specifically a criminal act (ie., add it to Article 93, Cruelty and Maltreatment). Putting the mandate in broad terms with the directive for DOD to create implementing policies and instructions, followed up by Congressional oversight gives the military much more flexibility to respond to the unique challenges posed by radical or fundamentalist Islamic detainees. A prohibitive statute such as this one, however, which tries to micromanage interrogations from Capitol Hill, is a mistake that will result in years of litigation, poor intelligence, and wasted opportunities to save lives."

Both Lederman and Holdaway think the McCain Amendment that may eventually become law is a step backwards, but for very different reasons.

What is fascinating in this debate over detainee interrogation is the larger debate over the role of Congress and the Executive branch on what is essentially an administrative law question: whether Congress shall impose strict rules or general guidance on how an agency of the Executive branch conducts its affairs. The general approach of our administrative state is one of broad grant of authority from the legislative branch and trust in agency expertise to carry out the congressional mandate. The McCain Amendment appears to be one of those instances in which the legislative branch is stepping in because it now lacks confidence in the agency to exercise its expertise.

But of course, as anyone who has studied the Eighth Amendment or the Torture Convention in any detail well knows, precisely what terms like "cruel or unusual punishment," or "cruel, inhuman, or degrading" treatment is an exceedingly difficult question. If we apply an administrative law gloss to the McCain Amendment, what are we to do if executive agencies interpret those words broadly or narrowly? Courts likely will defer to agency interpretations of what is "cruel, inhuman, or degrading" treatment. Hence the McCain Amendment may not have particularly cabined executive authority in any significant way. Administrative law principles will blunt any major impact it might otherwise have.

I am curious if others have thoughts on whether this administrative law gloss on the McCain Amendment is correct.

Related links:
What Congress Has Done and Not Done to Limit Inhumane Treatment
Congress Speaks--Defining Detainee Interrogation Policies

Monday, October 17, 2005

Goldstone and Arbour Hit Pay Dirt

Sometimes being virtuous pays off. The Thomas J. Dodd Prize in International Justice and Human Rights has been awarded jointly to Justice Richard Goldstone and U.N. High Commissioner for Human Rights Louise Arbour. The two well-known figures from the human rights community will share the prize of $75,000. Thomas Dodd, the father of current U.S. Senator from Connecticut Chris Dodd, served as an executive trial counsel at Nuremberg.

The prize has only been awarded twice, so it doesn't quite have the pedigree of the Nobel Prize. Still, if the trend continues, it could be a nice bonus for those folks who make a living promoting or advocating for international human rights. Perhaps like the Nobel Peace Prize, politics is unavoidable. This year's prize winners are openly critical of the U.S. policies toward the war on terrorism, and I am somehow guessing that taking this line against the U.S. is going to be de rigeur for future winners. Which means, I suppose, I'm never going to win this prize. Not that anyone was planning on nominating me, but it would be nice to have a little extra cash.

Three Years Ago Today: "Saddam Wins 100% of the Vote"

October 16, 2002: "Iraqi officials say President Saddam Hussein has won 100% backing in a referendum on whether he should rule for another seven years. There were 11,445,638 eligible voters-and every one of them voted for the president, according to Izzat Ibrahim, Vice-Chairman of Iraq's Revolutionary Command Council." (Link)

October 16, 2005: "I voted then, for Saddam, of course, because I was afraid... But this time, I came here by my own choice. I am not afraid anymore. I am a free man.... It gives me hope in God, and in my fellow men." (Link)

Lots of wonderful news coming out of Iraq. Best summary of links from MSM is from Google News here. Nice graphic of the unofficial results from the Washington Post is here. An American Marine was live blogging the Iraqi vote here. Iraqi bloggers discuss their personal experience and have photos here, here, and here. Read the comments.

The full text of the Iraqi Constitution is here. The best part of the Preamble reads, "We the people of Iraq, ... who are looking with confidence to the future through a republican, federal, democratic, pluralistic system, have resolved ... to respect the rule of law, to establish justice and equality to cast aside the politics of aggression, ... and to spread a culture of diversity and defusing terrorism."