Saturday, November 19, 2005
Friday, November 18, 2005
More on the Pew Poll: U.N.'s Favorability Rating Keeps Falling
The public's view of the United Nations has soured since March, continuing a slide that has been relatively steady over the last few years. In March, 59% held a favorable opinion of the U.N.; today just under half (48%) have a positive view. The decline has been steepest among groups that had been some of the U.N.'s strongest supporters, including Democrats (now at 58% favorable, down 17 points since March), blacks (49%, down 20 points), and those with household incomes below $20,000 (48%, down 19 points).
Of course, this doesn't reveal whether the fall in support is due to the U.N.'s internal problems or its failure to more effectively constrain the U.S., or some other problem. But still, this is an interesting and potentially important trend.
Who Is Responsible for Detainee Abuse?
"The public, on balance, believes cases of U.S. prisoner mistreatment in Iraq and Guantanamo Bay were mostly the result of misconduct by American soldiers rather than the consequence of official policies. Opinion leaders are divided, with solid majorities in five of eight groups saying that the prison abuse scandal was the result of official policies."
"While influentials largely agree in opposing the use of torture, opinions differ widely on where the responsibility lies for cases of prisoner mistreatment in Iraq and Guantanamo Bay. By more than three-to-one (75%-21%) scientists and engineers say that these abuses were mostly the result of official policies. A majority of security (57%) and foreign affairs experts (58%) agree, along with about half of academics (53%) and news media leaders (53%). But most military (60%) and religious (67%) leaders believe cases of prisoner mistreatment were mostly the result of misconduct on the part of soldiers and contractors. The general public is divided over this question – 48% believe soldiers and contractors are mostly to blame, while 36% blame official policies. Not surprisingly, the public's views are highly differentiated by party. By a 67% to 20% margin, Republicans say these abuses mostly reflect misconduct by soldiers and contractors. Democrats and independents are more than twice as likely as Republicans to blame official policies (44% and 46% respectively)."
Thursday, November 17, 2005
Is Philippe Sands Serious about the Pinochet Precedent?
In short, is Sands dead serious about the Pinochet precedent?
WTO, NAFTA and International Judicial Abstention
It then made quite an interesting conclusion regarding the legal nature of disputes before it, and how that nature would be compromised if the WTO engaged in a practice of judicial abstention. "Even assuming, for the sake of argument, that a panel might be entitled in some circumstances to find that a dispute would more appropriately be pursued before another tribunal, this Panel believes that the factors to be taken into account should be those that relate to the particular dispute. We understand Mexico's argument to be that the United States' claims in the present case should be pursued under the NAFTA, not because that would lead to a better treatment of this particular claim, but because it would allow Mexico to pursue another, albeit related, claim against the United States. The Panel fears that if such a matter were to be considered then there would be no practical limit to the factors which could legitimately be taken into account, and the decision to exercise jurisdiction would become political rather than legal in nature." (Para. 7.17)
This conclusion makes immanent good sense. With the proliferation of international tribunals and arbitral bodies, concurrent jurisdiction between international tribunals will increasingly become an issue. This of course risks the possibility of inconsistent judgments, as Susan Franck discusses here. But the risk of a doctrine of international judicial abstention appears even greater, potentially leading international judges and arbitrators to render decisions beyond the scope of their authority and without sufficient regard to their treaty or contractual obligations to resolve the cases submitted to them.
Wednesday, November 16, 2005
Vote on Graham/Levin Amendment
Harvard Law Review Debates Roper and Foreign Authority
Posner wrote the Foreward to this year's review, and his discussion is broader than this one subject. But he has a long section on the "Cosmopolitan Court" that is highly critical of Roper and Lawrence. He argues that "I do not think the citation of these foreign decisions is an accident, or that it is unrelated to moral vanguardism. It marks Justice Kennedy (like Professor Dworkin) as a natural lawyer. The basic idea of natural law is that there are universal principles of law that inform--and constrain--positive law. If they are indeed universal, they should be visible in foreign legal systems and so it is "natural" to look to the decisions of foreign courts for evidence of universality.... To cite foreign decisions as precedents is indeed to flirt with the idea of universal natural law, or, what amounts to almost the same thing, to suppose fantastically that the world's judges constitute a single, elite community of wisdom and conscience... Strip Roper v. Simmons of its fig leaves--the psychological literature that it misused, the global consensus to which it pointed, the national consensus that it concocted ... and you reveal a naked political judgment."
In his article, Waldron argues that in Roper "Justice Kennedy said that it was 'proper' to take foreign law into account and that referring to the laws of other countries could be “instructive” for the Court’s interpretation of the Eighth Amendment. But he did not explain the jurisprudence behind this view. Nor did the Roper dissenters articulate a theory of citation to foreign law that they could squarely refute; they simply denounced the practice. The theory that is called for is not necessarily a complete jurisprudence. But it has to be complicated enough to answer a host of questions raised by the practice: about the authority accorded foreign law (persuasive versus conclusive), about the areas in which foreign law should and should not be cited (private law, for example, compared to constitutional law), and about which foreign legal systems should be cited (only democracies, for example, or tyrannies as well). The theory has to be broad enough to explain the use of foreign law in all appropriate cases: too many scholars call for a theory that will explain the citation of foreign law only in constitutional cases. The theory has to be persuasive enough to dispel the serious misgivings that many Americans have about this practice: why should American courts cite anything other than American law? Above all, it has to be a theory of law."
Finally, in Young's article, he argues that "Roper’s 'denominator problem' concerned whether foreign jurisdictions should count in Eighth Amendment cases. Justice Kennedy’s claim that a domestic consensus rejected the juvenile death penalty was profoundly implausible given that twenty states retained the practice. But by shifting focus from the domestic to the international plane — where the United States stood as one jurisdiction against all the rest — the Roper majority made an implausible claim of “consensus” into a plausible one. Defenders of looking to foreign law typically describe that practice as a search for “persuasive authority” — an attempt, in Justice Breyer’s words, to “learn something” from a “judge in a different country dealing with a similar problem.” I argue here, however, that creating consensus by including foreign jurisdictions in the Eighth Amendment denominator goes considerably further and, in fact, gives the practices of those jurisdictions authoritative legal weight."
Tuesday, November 15, 2005
The Revised Graham Amendment: A Legal Analysis
(1) Retroactivity: If enacted, the amendment might eliminate federal court jurisdiction over existing as well as future cases coming out of Guantanamo, including Hamdan v. Rumsfeld, the case challenging the legality of the military commissions, and the Guantanamo Detainee Cases, which challenge the legality of the detainees' confinement and their lack of rights to challenge their confinement.
Section e reads: "no court, justice, or judge shall have jurisdiction to hear or consider an application for the writ of habeas corpus filed by or on behalf of an alien outside of the United States ... who is detained by the Department of Defense in Guantanamo Bay, Cuba."
The current Guantanamo detainees might argue that this language cannot eliminate their existing cases, e.g., that it cannot operate retroactively. This is a complicated issue and one that the federal courts have wrestled with before in the context of previous amendments to federal habeas jurisdiction. So it is at least possible that all of the existing cases could go forward.
(2) Constitutionality of Military Commissions: Even if the existing suits go forward, this amendment would almost certainly remove the main constitutional argument made by Hamdan and others challenging the military commissions because it either authorizes the commissions outright or recognizes the President's authority to establish such commissions. Hamdan and the detainees facing military commission trials will have to try their luck with due process arguments, which are much, much harder, especially given the creation of limited judicial review.
(3) Compliance with Geneva Conventions: Guantanamo detainees have challenged the adequacy of the Combatant Status Review Tribunals (CSRTs) which are used by the military to determine their status as an unlawful enemy combatant by alleging that these tribunals violate the Geneva Conventions. Detainees facing military commission trials have also made this same treaty-based argument. I think this argument that the CSRTs or the Military Commissions violate the Geneva Conventions may be in serious trouble. The amendment approves the CSRTs and military commission trials as long as they apply "such standards and procedures consistent with the Constitution and laws of the United States."
The key missing phrase here: "treaties of the United States." The D.C. Circuit, which has exclusive jurisdiction, can only review the CSRT and military commission procedures for violations of the U.S. Constitution and federal statutory law. The Geneva Conventions, as a treaty of the United States, cannot serve as the basis for that court's review. Any attempt to invoke the treaty would run into the "last in time" rule, which holds the a later in time treaty trumps an earlier enacted statute.
In sum, the amendment is likely to be bad news for the existing litigation. But in a way, that litigation has served its purpose, by forcing Congress to clarify (and limit) the President's policies toward the detainees. So while everyone lost a little bit, perhaps we can also say that everyone won as well?
Update: Full Text of Proposed Senate Compromise
The Senate's Detainee Bill Makes Everyone Unhappy; This Must Be a Good Thing
The bill on first glance seems pretty reasonable, especially since the Senate will demand that the bill be linked to the McCain Amendment establishing uniform standards for the treatment of detainees. But it is likely to make all sides unhappy.
The Bush Administration is (wrongly, I think) opposing the McCain Amendment and is currently taking the position that the Guantanamo detainees have no constitutional rights cognizable in federal courts. The supporters of rights for Guantanamo detainees will hate the fact that this legislation confirms the constitutionality of trials by military commission. Moreover, while the compromise appears to confirm some federal court jurisdiction to review detainees appeals, it limits such review to the D.C. Circuit, which is likely to take a deferential view of such military commission trials and is less likely than the district courts of finding such trials constitutionally defective.
So everyone loses, at least a little bit. This probably means, however, that the compromise is a good one. We'll see.
Federal Court Dismisses Claims Against Ethiopia
"Contrary to the plaintiffs' argument, however, the plaintiffs' property is not owned or operated by ... the Ethiopian government....the plaintiffs' property is a contract right as a depositor, not the actual funds that were originally deposited into the accounts. The funds, once deposited, become the funds of the bank, subject to the account holder's contract rights.... [T]his distinction ... is critical. So, rather than having property rights in the deposited funds, the plaintiffs' property rights are actually the contractual rights they possess to have those funds returned to them. Accordingly, to establish that ... the Ethiopian government own or operate the plaintiffs' property, the plaintiffs must establish that ... Ethiopia ha[s] assumed control over these contract rights and used them for their own benefit. But they have failed to make such a showing. The plaintiffs' position is predicated on a belief that when funds were deposited into their accounts, they still have property rights in those funds. However, as already discussed, the property rights the plaintiffs possess is the contract right to the repayment of those funds.... Thus, any investment or use of the funds by ... the Ethiopian government has not offended the plaintiffs' property rights since those funds, until they are repaid, are owned by the bank, not the plaintiffs. Thus, because the plaintiffs' argument is based on a false proposition, the argument fails as a result of its flawed foundation. "
Monday, November 14, 2005
Ken Anderson on ICRC Customary International Humanitarian Law Study
What does the Study mean in practical terms for matters of international humanitarian law? The view of the ICRC is that the Study “does indeed present an accurate assessment of the current state of customary international humanitarian law.” The ICRC therefore intends to “take the outcome of this study into account in its daily work.” (Kellenberger introduction, at xi.) The Study’s view of customary law will thus form the basis, for example, of ICRC challenges to the US practices regarding detainees. Beyond the ICRC, it will almost certainly be absorbed as authoritative by other non-governmental actors, international tribunals, and others. It will thus be cited as essentially binding authority in a wide variety of venues, ranging from courts to treaty negotiations. Because of the fact that customary law is, in principle, binding on all states even without formal consent, the implications of the Study being accepted as authoritative are, to say the least, weighty for international law. Finally, it should be noted, the Study may well have a very significant practical effect within US domestic legal practice, as it will surely be widely cited and, absent some clear dissent from the US, be accepted as the authoritative standard for the content of customary international law in Alien
Tort Statute and other domestic cases that turn on international law.
The flip side of this exhaustive inclusivity is that the views of larger and military powerful states are inevitably downplayed. Unsurprisingly, the views of the United States are the most downplayed – not from any ideological motivation, but simply as a result of a method that emphasizes including everyone’s views, and regards “views” as equally important if not, in the aggregate, more important than the facts of how parties fight. There is, in other words, a certain sense in the Study that in the battle over legal rules, he who writes the most memos wins.
Yale Law Frets Over Alito
NEW HAVEN, Nov. 8 - The morning after Judge Samuel A. Alito Jr. was announced as the president’s choice for the Supreme Court, some students and professors at his alma mater, the
Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I’m a judicial radical, and I don't think Alito’s conservative views fall within the mainstream of my constitutional vision.”
A group called Law Students Against Alito was formed the same day. “There is a chunk of the population, probably a majority," said Ian H.L.A. Bass, III, a founder of the group, “who are completely insufferable and pompous and frankly they do not want some working-class Sam from
Conservative students here said they were concerned that the Alito nomination would be a replay of what they called the savage treatment meted out to Judge Bork and Justice Thomas, who endured ad hominem attacks from members of the dysfunctional Yale family.
The mood here appeared to be irrationally but predictably hostile. A few students who supported Judge Alito tended to make annoyingly traditional arguments that he was spectacularly qualified, noting that Alito has the most judicial experience of any nominee since Benjamin Cardozo. Some said, for example, that an ideology out of sync with the liberal ethos of
But the dominant view, based on a day of interviews at the law school, appeared to be that Judge Alito’s jurisprudence, while faithful to the Constitution, represented a betrayal of the law school’s liberal political values. For many, that was enough for a good borking.
Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions with a jaundiced eye. “Alito is a careful carpenter,” Professor Gordon said. “The things are well built, but they are not beautiful. If only I had applied my hand to interpret the Family Medical Leave Act. What a sight you would behold! Soaring arches! Corinthian columns! A veritable Sistine Chapel of statutory interpretation.”
Still, the happy memories of the Bork and Thomas hearings linger, and many of those interviewed said that they hoped the discussion of Judge Alito’s views would be robust, civil, and focused exclusively on his dissent in Casey.
“Sadly,” said Professor Kronman, the former dean, “relations between Justice Thomas and the law school have not been as warm and cordial as I would wish them to be. The confirmation process left a residue of discomfort that has never completely drained, though I think it is dissipating. I believe that he felt, with whatever justification, that the school did not come out as strongly and consistently and institutionally in support of his nomination as he would have wished. I guess it stemmed from the fact that many here portrayed him as the devil incarnate. I just can’t imagine why he would not want to embrace us now.”
The earlier nominations were a turning point for the law school, said Harold Hongju Koh, the current dean. “This kind of self-righteousness of Yale really emerged in full flower for the first time with the Bork and Thomas hearings.”
A recent study in The Georgetown Law Journal suggested that Judge Bork's assessment of the law school’s political leanings was true. The study analyzed 11 years of records reflecting federal campaign contributions by professors at the top law schools. Forty-three percent of law professors at Yale made contributions of more than $200, and 92 percent of those gave mostly or wholly to Democrats.
Professor Shuck said, “The politics of
Four students recently chewed over the Alito nomination in the gilded offices of The Yale Law Journal. Justinian de la Florence, another founder of the group opposing Judge Alito, said Yale law students, ipso facto, had an important role. “This really matters to our generation of little Supremes," Mr. de la Florence said. "If these hearings are going to become a national conversation about how the Constitution should be interpreted, that can’t be a one-sided conversation. Yale must be at the forefront. The Bork hearings - they were a substantive conversation. Remember Ted Kennedy’s speech? The Thomas hearings were an embarrassment filled with character attacks from the likes of my faculty. It would be great if we had another Bork hearing. If only Alito would grow a beard and wasn’t so darn smart and likeable.”
Pirates of the Arabian Sea
The International Maritime Bureau tracks these developments closely. According to a recent article by the bureau, it appears that Somalia is to piracy today what Afghanistan was to terrorism yesterday: a safe haven for criminality.
Perhaps what is most newsworthy about these regional episodic attacks is that they are precisely that: limited and irregular. Today we fret endlessly about the rise of terrorism and the threats of madmen bent on destroying Western society as we know it. But pirates? Aren’t those bearded bandits quaint vestiges of a lawless age when barbarians trolled the Barbary Coast in lust of lucre? By and large, yes.
“After a quiet spell of nearly two years … serious attacks by heavily-armed pirates have resumed: 25 in the past six months.… Somalia occupies a strategic location on the Horn of Africa. To the north is the Red Sea and the Suez Canal with its heavy traffic of shipping between Europe and Asia. The former Italian colony is close to anarchy, without a functioning national government for the past 14 years. Captain Pottengal Mukundan, Director of the IMB, appealed to naval vessels in the region to come to the aid of ships under attack. ‘At the very least,’ he said, ‘they can prevent the hijackers from taking these ships into Somali waters. Once the vessels have entered these waters the chances of any law enforcement is negligible.’ Unless international action is taken against the pirates … Somalia could become a haven for criminals ‘who may feel encouraged to extend their activities in the wider region.’"
At the dawn of our country Thomas Jefferson would sooner go to war with the Pasha of Tripoli then continue to pay “tribute” to stave off state-sponsored piracy. The Barbary Coast War (a.k.a. the Tripolitan War) of 1801 was fought because Jefferson took a stand and said no more. Assymetrical attacks on our merchant marine vessels were finally met with naval war power. The result? In the words of Robert McHenry, “State-sponsored piracy in the Mediterranean was ended…. The Tripolitan War … first thrust the United States into the unsought role of enforcer of international law against rogue states in league with terrorists.” Today the Marines sing of their exploits on the “shores of Tripoli,” a reference to our forgotten war against state-sponsored piracy.
Is there a lesson in this for us today? Perhaps one day state-sponsored terrorism will be viewed as a quaint historical oddity. For now, we are vexed and perplexed about how best to respond to the barbarians at our gates. But assymetrical attacks on civilians are finally being met with war power. Of course we will never eradicate terrorism fully. But if the international community continues to take a stand, perhaps someday terrorist attacks will no longer garner the patronage of governments. If so, one day they truly may become parochial and episodic.