Saturday, November 12, 2005

Another Possibly Meaningless Treaty? Cybercrime Convention Nears Passage in Senate

The U.S. Senate's Foreign Relations Committee reported out the Council of Europe Cybercrime Convention on Thursday. I don't know enough about cybercrime to know if this Convention is important (See here for a primer), but it is worth noting that the treaty does not appear to require the U.S. to modify any of its domestic laws. All of the treaty's requirements appear to be already reflected by existing U.S. criminal laws (see here for the President's Letter of Submittal to the Senate) and the U.S. has reserved to any departures from existing U.S. law, including existing state law, in a familiar "Federalism Reservation" that I discussed earlier here in another context.

In an earlier post, I called these kinds of treaties "possibly meaningless" because, on the U.S. side, they don't require any action by the U.S. government or any alteration of existing U.S. law. But this is obviously an exaggeration. The real significance of this treaty will be to serve as a focal point for other countries to modify or alter their laws governing cybercrime, which is still a relatively new area of law. From a purely U.S. perspective, though, the treaty is a no-brainer, since it doesn't require any U.S. action but might get other countries to alter their laws and behavior. That's a good deal if you can get it.

Friday, November 11, 2005

Liberia Elects Woman as President, a First for Africa

Ellen Johnson-Sirleaf was elected as president of Liberia, the first democratically-elected female president in Africa. Johnson-Sirleaf won with 59 percent of the vote. When asked whether Africa is prepared for its first female president, Johnson-Sirleaf said, “Africa is ready for a female president… Women have the education, the character, the competence, and the integrity to lead the nation.” Nigerian politician Sarah Jubril was even more exuberant: “It's a historical phenomenon, which is going to be an example to other African countries... I could scream my heart out!"

By chance today I am at Cardozo Law School speaking at a conference on “International Mediation in Times of Conflict: Lessons from Public and Private Dispute Resolution.” The guest of honor is Kenyan female human rights advocate Betty Kaari Murungi. She received the 2005 International Advocate for Peace Award. (Previous recipients include Richard Holbrooke, Bill Clinton, Desmond Tutu, George Mitchell, and Even Ensler). Murungi celebrated the news of Johnson-Sirleaf’s election saying, “The women of Liberia must be celebrating today!”

Indeed, with Condi Rice, Angela Merkel, and Ellen Johnson-Sirleaf now in positions of great leadership, 2005 is shaping up to be a vintage year for women in politics.

A Tentative Defense of the Graham GTMO Amendment

Here is the full text of the "Graham Amendment" Bobby helpfully pointed out yesterday. The Washington Post has an analysis here. I must run off to help interview candidates interviewing for faculty positions, but let me add a few thoughts. Not surprisingly, I'm not reflexively opposed to this amendment, at least on first glance.

(1) Congress plainly has constitutional authority to regulate the scope of federal court jurisdiction over the Guantanamo detainees. As Bobby pointed out, those detainees may certain have constitutional habeas rights, but the scope of those rights are somewhat uncertain and courts will certainly give Congress broad discretion to regulate those rights.

(2) The amendment would create congressional oversight over the procedures governing the detention of the Guantanamo detainees because the Defense Department would have to submit their procedures for determinations as to the legal status of those detainees to Congress as well as any changes in the procedure.

(3) The most controversial part of the Amendment is the part removing the jurisdiction of the federal courts from "any action" based on the DoD's new policies on detention or "any action challenging any aspect of the detention of an alien who is detained by the Secretary of Defense as an enemy combatant."

This provision may indeed remove federal courts from the process of reviewing the detention of Guantanamo detainees. But it is worth remembering that it was never clear that the federal courts had much authority in that area in the first place, and that the Supreme Court has relied on its sense that Congress had approved federal court intervention.

Basically, the Amendment replaces judicial review of the fairness of detainee detention procedures with congressional review. I think this does provide a non-trivial check on the President's authority, but I'll have to think more about whether this check is enough to ensure good policy and fundamental fairness.

Thursday, November 10, 2005

The Graham Amendment, GTMO, and Habeas

A very important development in the Senate today, one that may have profound consequences for the pending habeas litigation involving GTMO detainees. The development concerns an amendment to S.1042 (the '06 Defense Department Authorization bill) offered by Senator Graham. The Amendment is No. 2516, and its text is available here.

Consider first section (d)(1) of the amendment, which amends the federal habeas statute (28 U.S.C. 2241) to include the following language: "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien outside the United States [as defined in 8 U.S.C. 1101(a)(38)] who is detained by the Department of Defense at Guantanamo Bay, Cuba." Wow. This would overturn the Supreme Court's 2004 decision in Rasul v. Bush, which found a statutory basis for extending habeas jurisdiction to GTMO. In doing so, it arguably would bring to an end all 173+ habeas petitions currently pending on behalf of several hundred GTMO detainees, including, notably, the Hamdan case as to which the Supreme Court recently granted cert, and also the pending D.C. Circuit appeals from the conflicting lower court decisions by Senior Judge Green (In re Guantanamo Detainees, finding that detainees have constitutional rights) and Judge Leon (Boumediene, reaching a contrary conclusion). Now that does not mean that there is no possibility for the detainees to pursue habeas; they still may attempt to establish a constitutional basis for habeas, notwithstanding Johnson v. Eisentrager. Certainly there are elements of Justice Steven's opinion in Rasul that might support such an argument, but the question is far from clear (and might be impacted by the changing composition of the Supreme Court; Stevens was joined by Souter, Ginsburg, Breyer, and O'Connor, and Kennedy concurred in a separate opinion).

Now, this is not all that the Graham amendment does. It also has the effect of conferring Congressional approval on Combatant Status Review Tribunals as the proper vehicle for determining whether a detainee is properly classified as an "enemy combatant." The amendment permits a limited form of judicial review of CSRT determinations, with the D.C. Circuit permitted to review whether the tribunal in a given instance acted "consisent with the procedures and standards" governing that process.

As I understand it, the Graham Amendment was adopted 49-42 today. Whether it will become law ultimately, of course, is far from clear for now. Note that nine senators were not present during this vote, and that Senator Bingaman (D-NM) is expected to offer an amendment on Monday that would remove the habeas-stripping portions of Graham's amendment.

Gonzales Criticizes Reliance on Foreign Authority

Attorney General Alberto Gonzalez gave an important speech at the University of Chicago Law School yesterday strongly criticizing the recent trend of reliance on foreign and international authority. Gonzales made several key points:

1. Sometimes reliance on international law is appropriate. "Judges and lawyers routinely use international law in other contexts. For instance, judges and lawyers seeking to interpret our treaty obligations routinely consider the interpretations of our treaty partners. Sometimes our statutes direct us to consider international law, as when the Foreign Sovereign Immunities Act creates jurisdiction over cases involving property “taken in violation of international law,” and foreign law will often be relevant in the litigation of public and private contract disputes involving foreign parties. All this is as it should be...."

2. Sometimes reliance on foreign law is appropriate. "I agree that foreign law has a role to play in the interpretation of the Constitution, but I think it is a limited one. The roots of our legal system are in England, and so we naturally look to English common law of the Founding era to help us understand the Constitution."

3. The trend is not limited to a few isolated cases. "The increasing frequency of such references, and length to which they are discussed in opinions, suggest to me that the incidents are not isolated and that such references are not added as a mere curiosity, but as an extra weight on the scale."

4. Reliance on foreign precedent undermines the Constitution's clarity and certainty. "[T]he sheer difficulty of choosing potentially relevant precedents from the vast array of available foreign-law sources means, I believe, that any use of foreign law will tend to undermine the clarity and certainty of our Constitution."

5. Reliance on foreign precedent undermines the Court's legitimacy. "[M]ore fundamentally, the use of foreign law poses a direct threat to legitimacy, including to the legitimacy of the Court itself....Reliance on foreign law... place[s] in jeopardy the reverence Americans have for the laws and for the institution of the Supreme Court....The Court has earned the respect of the people. They expect that it will do its best to give a fair and impartial interpretation to our sacred text, the Constitution. The Court risks squandering that reserve of goodwill if it takes actions seen as inconsistent with that expectation."

6. Comprehensive comparative analysis is impossible. "If we accept that foreign law could properly be used in construing the meaning of the Constitution, at a minimum, surely we would only want to do so in a way that “comprehensively examines ‘all relevant’ international sources.” But any such approach is probably unachievable. It may be impossible for even the most conscientious judge or lawyer to avoid being selective, or at least arbitrary, in the use of foreign law."

7. Comparative analysis must take into account context. "Beyond the particulars of a cited provision, moreover, the legal systems of the world also vary considerably, each reflecting the unique history, traditions, and values of its own citizenry - as ours reflects the uniqueness of America."

8. The trend poses serious problems for litigators. "The Solicitor General and the lawyers in his office understand that foreign-law materials might influence the vote of one or more members of the Court, and we may feel obliged as dutiful advocates for our clients to cite such materials. Thus, the growing tendency by some members of the Court to look to precedents from overseas in construing the Constitution has a direct impact on our work. Frankly, I don’t know how we begin to identify the relevant universe of foreign sources and precedents that might be deemed persuasive by one or more Justices."

9. The trend poses serious problems for foreign relations. "The conduct of America’s foreign affairs has been entrusted to the Executive Branch, not the courts, precisely so that our Nation may speak with one voice in this delicate area. The Court itself has wisely recognized this principle many times over the history of the Republic. Yet, some justices seem to acknowledge that they refer to foreign law as an attempt at diplomacy."

10. The political branches, not the courts, must engage in foreign policy. "The Court's interest in foreign-law sources may also be based on a well-intended desire to make the Court look less isolationist. I am not certain that the isolated citation of a foreign decision, usually in the form of dicta, will have much of an effect. But in any event, the Judiciary is not supposed to have a foreign policy independent of the political branches. The political branches, as representatives of the people, are to decide the Nation’s foreign policy, and they can enact positive law based on foreign experiences or laws, which the Court can then interpret."

11. The power of judicial review is based on the consent of the governed. "We must consider the source of the judiciary’s power to strike down laws as unconstitutional. The Founding Fathers built our Constitution on the radical and profound principle that power has one legitimate source: the consent of the governed.... Reliance on foreign law thus threatens to unmoor the Court from the proper source of its authority for judicial review."

12. Contemporary community standards must be our own. "Let’s assume that the Supreme Court may properly consider contemporary societal standards to some extent in interpreting the Constitution. Even then, I question how the standards of anyone other than the people of the United States could legitimately be relevant to determining the will of the American people. If we look abroad, whether at expressions of the popular will of foreign nations or the views of foreign jurists or diplomats, in what sense is it credible to say that, in doing so, we are ascertaining the will of the American people? To allow the views of foreign judges and legislators, who are under no oath to uphold the United States Constitution, to govern here is the antithesis of democratic accountability."

13. The political branches, not the courts, should consider reliance on foreign experiences. "[W]e must use a reliable method for separating the good from the bad. I suggest we do it, as Madison did it, through the political process, not through the courts. A useful example is found in the evolution of the American polling place... State and federal lawmakers responded by adopting the so-called “Australian Ballot” for use in American elections. It has since become a hallmark of American Election Day. Thus, a sensible idea from the other side of the world was weighed and ultimately embraced by our elected representatives, not imposed by the courts. It is one thing for the people’s representatives to consider and adopt laws that draw on the experience of foreign nations. It is quite another for unelected judges, charged with determining the will of the people as they expressed it in the Constitution, to rely on foreign experience as a basis for rejecting the actions of those elected representatives."

You should read the whole speech. (A more readable reprint is here.) It is worth serious consideration.

UPDATE: You can listen to the speech here. (Tip: Jacco Bomhoff at Comparative Law Blog)

Federal Court Refuses to Vacate NAFTA Award in Loewen

One of the most important NAFTA Chapter 11 decisions is Loewen v. United States. The Canadian company brought a $725 million claim against the United States arguing that a Mississippi state court judgment constituted a violation of NAFTA. The claim questioned whether the state court appeals process (particularly the appeal bond) could constitute an unlawful investment restriction under NAFTA. The arbitral tribunal dismissed the claim on jurisdictonal grounds. A copy of the final award is here. (The full docket sheet is here).

The Canadian petitioner sought to have the award vacated pursuant to the Federal Arbitration Act. Last week, the D.C. district court dismissed the claim as untimely. A copy of the decision is here. The court ruled that Loewen should have filed after the final award, not the decision on reconsideration. Sounds mundane, but there is a fundamental question of procedural fairness embedded in the dispute. NAFTA expert Todd Weiler has more:
The judge’s reasoning, unfortunately, leaves much to be desired. In a nutshell, the application was dismissed for being filed too late, given that the final award was issued in June 2003 and the application was not filed until December 2004. While it is true that the application was filed long after the three-month statutory bar had expired, NAFTA watchers will immediately note that the reason Loewen took so long to file his application was that the Tribunal failed to provide reasons specifically addressing the disposition of his claim in its Final Award. It then proceeded to take an unacceptable period of time to issue a clarification that succinctly (to put it charitably) ended the matter. Loewen’s application was made within three months of his finding out that he indeed did lose. Obviously this should have been the appropriate date against which the time bar should have been applied.

For the judge to actually dismiss Loewen’s application for wont of timeliness simply defies logic, because this reasoning would have required Loewen to file his application before knowing whether one even needed to be filed. If this decision is the final word on the saga of Loewen’s NAFTA claim, it will perhaps be fitting. After having been denied justice in Mississippi, and having received a very questionable decision at the hands of a NAFTA Tribunal, is that surprising that this DC judge would have decided any differently?

Hopefully this decision will not be the last word, however, for while the question of whether his annulment application should succeed remains open, there is no doubt that – at long last – Mr. Loewen should have been given a full and fair hearing on the merits of his case.
Weiler may be right, but there is a question that obviously comes to mind when you have $725 million on the line: doesn't the better part of discretion suggest that you file a claim for vacatur after the original Final Award and the subsequent Decision on Request for Reconsideration? One of the two motions likely would be procedurally barred, but not both. The Motion to Vacate did not explain its failure to file earlier, stating without explanation that the U.S. request for clarification "precluded Mr. Loewen from seeking to vacate the Award at that time." How so?

Wednesday, November 09, 2005

New Defense Department Directive on Detainee Interrogations

As the Washington Post reports, the Defense Department has released a new directive to the military on rules governing the interrogation of detainees held in U.S. military custody around the world. According to the Post, the directive has been hotly debated within the administration, especially as Congress is currently considering the McCain bill to codify standards on the treatment of detainees. Here is the key paragraph, from my quick review.

It is DoD policy that:

All captured or detained personnel shall be treated humanely, and all intelligence interrogations, debriefings, or tactical questioning to gain intelligence interrogations, debriefings, or tactical questioning to gain intelligence from captured or detained personnel shall be conducted humanely, in accordance with applicable law and policy. Applicable law and policy may include the law of war, relevant international law, U.S. law, and applicable directives, including DoD Directive 2310.1, “DoD Detainee Program (draft), upon publication (reference(d)), instructions or other issuances. Acts of physical or mental torture are prohibited.

The Directive also prohibits the use of dogs to harass detainees, imposes the same restrictions on foreign government or non-military interrogators and outlines procedures for oversight of these procedures and implementation.

This is a good start, and it is better than previous efforts, but I think it is probably not enough. The devil is in the details. "Applicable law and policy" seems a bit too vague for my taste and the vagueness is not helped by the fact that the directive "may include" relevant international law. The DoD should (and will in its Directive 2310.1 ) spell out what is permitted and what is not.

Still, I am coming around to the notion that the McCain Amendment is the best way to handle this. Ideally, the McCain Amendment would give a statutory framework and give guidance to the DoD and courts on how to interpret the effects of the Torture Convention and customary international law. The objections raised by opponents of the McCain Amendment are that it would import fuzzy and vague notions of international law, but that is going to happen anyway. It is better for this importation to happen through Congress, which will give some more substantive guidance on what the standards are, then through the executive branch or the federal courts.

Alito's Senior Thesis on the Italian Constitutional Court

As Julian reported yesterday, Samuel Alito's 1972 Princeton senior thesis, "An Introduction to the Italian Constitutional Court" is now in the public domain. It is available here. The Daily Princetonian has a short summary here.

There are several interesting aspects of the thesis. First, it is quite a remarkable piece of work. It is no small feat for a twenty-two-year-old to have sufficient facility in another language and sufficient analytical prowess before law school to undertake such a constitutional analysis. His thesis advisor said he has only kept a half-dozen theses in all his years, and Alito's was one of them. "Sam just had to start from scratch... I've used it over the years in my work." Alito is so detailed that he examines the professions of the justices' fathers in hopes of discerning clues as to their judicial philosophy. "I was able to discover the occupation of the fathers of 22 of the 33 justices. Not unexpectedly, the middle class professions are well represented....For the rest, one justice was the son of a railroad station master, one of a clerk, and one of an Army fencing master." (p. 38-39).

On the impact of change in court personnel, Alito discussed Justice Giuseppe Branca's 1970 remarks approving "how much bolder and more liberal the Court had become during the past two years" and noted that part of the explanation was the change of a few justices on the court. Quoting Branca, "It is not necessary for a liberal or ultraliberal justice to replace a conservative; it is enough for the conservative to be replaced by a man whose conservatism is less political and less stern, a man who is more humane and more sensitive to new social outlooks." (p. 26). Alito later described the Branca Court as one that was "bold, reformist" and "unafraid to take on sensitive Church-State issues ... unheedful of precedent." (p.73).

There is surprisingly little by way of comparison between the Italian courts and other courts. There are a few explicit comparisons, such as Table 3.4 comparing the average ages of justices and years of eligible service in Italy and seven other countries. (p. 52). But mostly the comparisons are passing remarks. For example, he states that "The Italian judiciary is organized very differently from America's or Britain's. In Italy, a judgeship is not the culmination of a career as a practicing attorney; no judges stand for election; judgeships are never distributed for political reasons." (p.44). Elsewhere he stated: "Engaging in the sort of procrustean construction which is common for the United States Supreme Court, the Italian Constitutional Court interpreted article 553 not to forbid the dissemination of all information about birth control." (p.99). In describing the different roles of precedent in civil and common law countries, Alito remarked, "The Italian Court may cite a precedent in every third case whereas the average for the American Court may be closer to every third sentence." (p. 120).

By far the most important chapter is his analysis of church-state decisions in Italy. The chapter includes discussion of birth control, marriage, religious oaths, freedom of expression, divorce, and adultery. Particularly useful is his discussion of what we would today call a "constitutional moment" of liberalization in the late 1960s. "What caused the Court to change direction in the Church-State area in the late sixties is problematic. The change in this area corresponded to the Court's general liberalization during the presidencies of Sandulli and Branca. The explanation may be in personalities of Sandulli and especially Branca, a few substitutions on the Court, the swing leftward in the sixties of Italy's governing coalition, the Vatican's decision after the death of Pope Pius XII to play a less active role in Italian politics... or simply the drift of public opinion in Italy and the world." (p. 101-02). Alito concludes the chapter by quoting at length the Vatican's criticism of the leftward shift in the Court's jurisprudence on divorce. (p. 112-13). Quoting from Civiltà Cattolica:
We should ask if this is what the Italian people, who had just regained their liberty, desired when ... they established that the new Constitution would be protected against Parliamentary violation by a supreme and impartial organ of Constitutional justice.... We should ask at the same time whether these eminent men, when they occupied university chairs or sat on an ordinary court, instead of applying and teaching 'the same law for all,' taught or applied above all the political ideas of the party or fraction of a party to which they belonged."
Alito likewise appears critical of the Court's liberalization in the late 1960s, sensitive to the importance of consistency in constitutional decision-making. "The Constitutional Court has been far more willing than the Court of Cassation to disregard 'precedent.' The Constitutonal Court's quick turn-abouts on the adultery and birth control laws ... are glaring examples. They are testimony to the weak place 'precedent' holds in Italian law; it is difficult to think of two comparable reversals by the American Supreme Court." (p. 120-21).

Alito concludes the thesis with a quip about future judicial activism of the Italian Constitutional Court: "The Court is likely to retreat somewhat in the next few years from the advanced position Branca staked out. But in a country in which Parliament is often deadlocked and with the taste of power in its mouth, the Court is unlikely to ever renounce an active role." (p. 131).

We cannot make too much of a senior thesis written over thirty years ago. But one thing is for sure, from a very early date one can discern that this man Alito is a heavy-weight.

Tuesday, November 08, 2005

Alito on Constitutional Comparativism

As I mentioned previously, U.S. Supreme Court nominee Samuel Alito's senior thesis on the Italian Constitutional Court, written during his senior year at Princeton, has been missing from the Princeton archives. Today, the Daily Princetonian reports that Alito's thesis adviser has sent a copy of it to the university library and the Daily Princetonian has a brief summary here. At the very least, it shows that Alito has an above average familiarity with foreign legal systems, in particular the relatively new Italian experiment with judicial review of constitutional issues.

It may be reading a bit much into this, but I actually think his early interest will prevent him from being overawed by fairly aggressive modern claims about the necessity of incorporating international and foreign law into U.S. constitutional law. He certainly won't be hostile, but I think his early experience with constitutional comparativism will also give him a sense of its limitations.

In any case, what I really want to know: where is Alito's "supervised analytic writing" from his time at Yale Law School? From what I know of my alma mater, there is pretty much zero chance that a Yale Law professor has kept a copy of his thesis for 30 years. Will the Senate issue a subpoena?

ICJ Campaign Over: New Zealand, Morocco, and Mexico Win

The General Assembly and Security Council has selected five members for the next ICJ term. One of members, Thomas Buergenthal of the United States, is a returning judge. The rest, however, are all newbies. As I discussed before, some countries not effectively guaranteed a seat by the Security Council have launched semi-aggressive efforts to get their members on the Court. In that race among smaller countries, New Zealand, Morocco, and Mexico appears to have won. An excerpt from the official press release follows:

THE HAGUE, 8 November 2005. Yesterday, the General Assembly and the Security Council of the United Nations proceeded to the election of five Members of the International Court of Justice (ICJ) for a term of office of nine years, beginning on 6 February 2006.
Judge Thomas Buergenthal (United States of America) was re-elected as Member of the Court. Messrs. Mohamed Bennouna (Morocco), Kenneth Keith (New Zealand), Bernardo Sepúlveda Amor (Mexico) and Leonid Skotnikov (Russian Federation) were elected Members of the Court with effect from 6 February 2006.


It is worth reminding readers of our blogosphere-exclusive horse race analysis from a previous post here. Mexico took the uncontested Latin American seat. Morocco beat out Niger and Tunisia for the Africa seat. The only tough race was between New Zealand and Spain, and it looks like New Zealand's aggressive campaigning paid off.

Les Émeutes de Paris

The best place to go to see what the blogosphere is saying about the Paris riots is here. The right hand column has the most popular bloggers discussing the riots. The best list of news summaries regarding events in France is here. The best editorial I've seen on the riots is by Mark Steyn, available here. The best single article I have read explaining why Paris is burning is here.

One of the best recent background studies of Muslims in Europe is Joel Fetzer and Christopher Soper, Muslims and the State in Britain, France, and Germany (Cambridge 2005), available here. According to Fetzer and Soper:
In contrast to Britain ... France has been far less accommodating to the religious needs of Muslims. France has rejected multiculturalism as an appropriate educational model in the state schools. Aside from [a few] short lessons ... French secondary schools learn nothing about Islam.... French Muslim leaders estimate that "hundreds" of Muslim young women have been expelled from public schools for refusing to remove the hijab. These young women are then forced to study by correspondence, rely on volunteer Muslim tutors, or abandon their education altogether.... The state has been vigorously secular and opposed to the notion that public institutions should be made to assist the religious practices of Muslims."
The worst statistic I have seen is the spread of rioting as calculated by the loss of cars. The first three days of riots saw an average of 24 car losses per day. But this Friday there were 897 car losses, then 1,300 on Saturday, and 1,408 on Sunday. We can only hope the riots will not continue to spread at this pace.

UPDATE: Several comments criticize my reference to Mark Steyn's editorial. On reflection I can see why. I recommended it only because it strongly expresses the lack of assimilation and recognition of Muslim groups in France, and the impact that is having and will have in the future for France. But I agree that it is over the top in other regards, such as asserting that the future of Pakistan is more hopeful than Denmark or that this is a modern day Moorish battle akin to a new Dark Ages. Fiona de Londras at Mental Meanderings points to a better article in the Washington Post stating the same point without the hyperbole. She also has a nice critique of Steyn's piece on her blog which is worth a read.

An Axis of Evil in Latin America?

In a roundtable interview of President Bush with foreign print media just prior to his trip to Argentina, Bush was asked the following question by a foreign correspondent:

"What do you think about the [prospect] of--in the Bolivian election, the victory of an overtly leftist candidate, Evo Morales, of his peasant movement? And in that case, are you worried about a possible 'axis of evil' in Latin America--Venezuela and Bolivia?"

To which President Bush responded:
The thing that we're interested in is fair elections, free and fair elections where people have the chance to express themselves at the ballot box.... And so we will see how the people vote.... And that's all you can ask. And then the people will decide who they want. And that's what democracy does.... Sometimes you've had different forms of government in our own hemisphere and around the world, where the people don't decide but an elite decides, a handful of people get to decide the the fate of the people. And that, throughout history, has led to resentment and hatreds and turmoil and conflict.... [O]ne of the universal truths is democracies lead to peace. Democracies don't fight each other....I believe freedom is universal. It's not contained within one country or one religion or one type of person. There's a universality to freedom. I believe mothers around the world desire their children to grow up in freedom. It doesn't matter whether you're Muslim, Christian, Jew, Hindu.
It is an interesting response. Bush appears to be stating that democratic societies can and should flower in all soils and that the United States must accept a wide range of results from such elections. If a democracy freely and fairly chooses a far left candidate like Hugo Chavez, or a far right Islamic fundamentalist candidate in the Middle East, so be it.

Bush is asserting that all democratic societies belong to an axis of freedom, not evil.

Monday, November 07, 2005

For Loyalty, for Irrationality, and for Yale

As I reported two weeks ago, Ben Stein is experiencing cognitive dissonance. He knows he should not give to Yale. He knows his beneficence is better channeled to more worthy and needy causes. Two weeks ago he had the temerity to note that since it was virtually meaningless to give to Yale, why bother? Better, he concluded, to give to other charities where his gifts do far more good.

Well, Stein continues to experience cognitive dissonance, but now he has concluded that he just has to give to Yale. He can't helpful himself. In a follow-up article in the New York Times, he writes:
“They were good to me. They were a family to me. They let me take a film class from Stanley Kauffmann, the great film critic, that changed my life and set my trajectory for eventual Hollywood landing. They went far, far beyond what I could have expected. I shed bitter tears when I left the Sterling Law Buildings. So here's my point, if I may: It is probably not an economically rational act for me to give my few shekels to mighty, multibillionaire Yale. It would be far more rational for me to … give them to smaller charities. But not all decisions are rational. Yale went far beyond the rational to offer me a place back when I dropped out. Yale went far beyond the rational to be as generous with financial aid as it was. … I owe Yale for what it did, and what it let me do. There are ties that are more than rational, more than sensible. They are the mystic chords of memory to which Lincoln referred. I feel them about Yale, just as I feel them about many people and places I remember in my life. (As one might say, in my life, I've loved them all. ). So, God bless Mr. Swensen. God bless all those who wrote to me agreeing with me about Yale and its endowments, but there are some ties that even economic theory cannot break. I'll keep giving to Yale… Not everything is about reason.”
So Stein now accepts that he should not give to Yale Law School as a purely rational act, but that he has a sense of deep loyalty to the institution, and he just can't help it. They were good to him, so he feels duty-bound to return the favor.

Fair enough. Loyalty is a powerful and worthy motive. It causes us to serve those institutions near and dear to us, and neglect the rest. A member gives to his or her local church or synagogue knowing that it sustains the institution while also providing an important source of help and hope to those who come to it in desperate need. For such a member that gift is a loyal and rational act.

If Yale has already won Ben Stein's money, what are Richard Levin and Harold Koh to do to save Ben Stein from himself? Their endowment is growing by $6 million per day, so how can they in good conscience ask for money from the likes of Ben Stein? The answer is simple: Make his gifts rational. He knows he should be giving to more worthy causes, but he has this irrational need to give to Yale. If Yale Law School is so deeply committed to the cause of liberty and justice, it can redirect his irrational gifts to further human rights and civil liberties in the world. Yale Law School should earmark alumni gifts in such a way that donors can feel that giving to it is an act that is both loyal and rational.

This past week President Levin displayed particular sensitivity in making alumni giving more rational when he convinced a donor to give $100 million to make tuition free for music students, rather than steer the funds to less needy causes in the sciences or medicine.

So if Ben Stein is taking leave of his faculties, must human rights scholar and advocate Harold Koh do likewise? If it is irrational to give to such an unneedy cause, is it not moreso to ask and to take? It would be odd indeed for Yale Law School to fully embrace rational choice and human rights ... except when it comes to alumni giving.

Or perhaps Koh is at peace with himself thinking, "God bless Mr. Stein. I'll keep asking for Yale. Not everything is about reason."

Related links:

The Roberts Court Wades into Foreign Affairs

The U.S. Supreme Court will hear three important foreign affairs and international law cases this term (see here). It granted certiorari today in Hamdan v. Rumsfeld which will decide the legality of military commissions under the U.S. Constitution and the Geneva Conventions (which I discussed here). It also agreed to hear two cases testing the domestic judicial enforceability of the Vienna Convention on Consular Relations, which was the treaty at issue in Medellin (which I blogged incessantly about here) (thanks to Lyle Denniston of SCOTUSBlog for the heads up).

The Hamdan case is obviously important, but the two Vienna Convention cases are not insignificant either. The Court will decide a number of lingering questions about the domestic legal status of the Vienna Convention on Consular Relations, a treaty of the United States. It may also reach the question left unresolved by Medellin, e.g. whether the International Court of Justice's judgments are directly enforceable in domestic court. The questions granted cert are (roughly):

(1) Whether the treaty creates individual judicially enforceable rights for foreign nationals;
(2) Whether the treaty rights, if violated, allow or require the suppression of evidence seized by police in violation of those treaty rights (Mirandazing the Vienna Convention);
(3) Whether state courts can interpret the Vienna Convention in ways contrary to the interpretation of the same treaty by the International Court of Justice.