Saturday, January 14, 2006

Professor Demleitner on Alito's Immigration Record

On the final day of the Alito hearings, Julian Ku's colleague Professor Nora Demleitner at Hofstra School of Law testified on Judge Alito's immigration record. Demleitner was a clerk for Judge Alito and part of her testimony focused on one aspect of his immigration jurisprudence that has been ignored in my previous posts: gender as a basis for asylum law.

Here is an excerpt:

DEMLEITNER: Since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation -- or of his generation -- and he's a man of great decency, integrity and character. I say all of this as what I would consider to be a left-leaning Democrat, a woman, obviously, a member of the ACLU and an immigrant. And my view is not one that is unique with regard to people who have worked with him, or with regard to people who have worked for Judge Alito. All of his clerks, many of whom are politically liberal, have signed on to a letter strongly urging the Senate to confirm Judge Alito as Associate Justice. A number of non-Republican legal academics who have worked with or for Judge Alito have also issued an equally forceful statement on his behalf.

Let me explain to you why I believe that Samuel Alito deserves to sit on the highest court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities, immigrants or other vulnerable groups. Judge Alito does not have a political agenda. He gives very careful consideration to the lower court record and to prior judicial decisions.

Let me point you to two cases that may explain the judge's philosophy. While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order, in part, to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States, but was denied by the immigration court and by the Board of Immigration Appeals. Without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions, or the Iranian regime would penalize her. The problem with her case was that there was really an absence of favorable case law and, even worse, a very thin record, that indicated only very limited opposition on her part to the Iranian regime. The judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law.

The case she was referring to is Fatin v. INS, 12 F.3d 1233 (3rd Cir. 1993). The import of Judge Alito's groundbreaking decision is that a person who holds strong feminist views can be a basis for an asylum application. Essentially, Fatin won on creating new law, but lost on the facts as applied to her.

I have not been able to find a full copy of the opinion on the Internet (let me know if you find one), but here is a key section of the opinion:

The petitioner's primary argument, in any event, is not that she faces persecution simply because she is a woman. Rather, she maintains that she faces persecution because she is a member of “a very visible and specific subgroup: Iranian women who refuse to conform to the government's gender-specific laws and social norms.” Petitioner's Br. at 12 (emphasis added). This definition merits close consideration. It does not include all Iranian women who hold feminist views. Nor does it include all Iranian women who find the Iranian government's “gender-specific laws and repressive social norms” objectionable or offensive. Instead, it is limited to those Iranian women who find those laws so abhorrent that they “refuse to conform”-even though, according to the petitioner's brief, “the routine penalty” for noncompliance is “74 lashes, a year's imprisonment, and in many cases brutal rapes and death.” Limited in this way, the “particular social group” identified by the petitioner may well satisfy the BIA's definition of that concept, for if a woman's opposition to the Iranian laws in question is so profound that she would choose to suffer the severe consequences of noncompliance, her beliefs may well be characterized as “so fundamental to [her] identity or conscience that [they] ought not be required to be changed.” ... The petitioner's difficulty, however, is that the administrative record does not establish that she is a member of this tightly defined group, for there is no evidence in that record showing that her opposition to the Iranian laws at issue is of the depth and importance required.
If Julian could persuade Professor Demleitner to provide more details regarding the importance of the Fatin decision, I would be most interested in posting it.

Friday, January 13, 2006

U.S. Blocking Airplane Sales to Venezuela

The U.S. has seemingly blocked two sales of military planes to Venezuela: one from Spain, and another from Brazil. In each case—turboprop trainers in the Brazilian case, and patrol planes in the Spanish case—the planes in question had U.S. military technology. As Venezuelan President Hugo Chavez complained this week:

We couldn't sign the document. The contract is ready for Brazil to make Supertucano training aircraft for our air force. ... The United States did not authorize Embraer to make the planes," Chavez told officers at a military academy.

The U.S. is must authorize the sale of any airplane containing U.S. military technology, regardless as to whether that plane was built in the U.S. or overseas.

In and of itself, this is not of huge concern. It is merely one more story showing the deteriorating relationship between Washington and Caracas.


Spain will go forward with the sale, substituting in EU-made parts for the U.S. tech.

Thursday, January 12, 2006

MG Miller Invokes - What's Next?

As Peggy's earlier post indicated, MG Geoffrey Miller today asserted his privilege against self-incrimination in order to avoid being questioned by the defense attorney representing a soldier pending trial for using military working dogs to abuse prisoners. Is this significant?

First, as we know from press reports, MG Miller made this decision on advice of his military defense counsel, Major Michelle Crawford. According to her statement, MG Miller's made this decision because he has been repeatedly questioned on this subject. However, he has never been questioned by the defense counsel who believes he is a necessary witness. This attorney is attempting to determine whether MG Miller can offer relevant exculpatory evidence on behalf of a soldier facing a federal felony conviction. As a career officer, MG Miller is without question aware of that the military justice system provides an accused soldier the right to call relevant witnesses and present relevant evidence. It is also reasonable to assume that he is also aware that unless made under oath and subject to cross examination, none of those prior statements will be admissible during this soldier's trial. Thus, it seems reasonable to infer that MG Miller did not make this decision without full knowledge the impact on the pending court-martial.

Second, MG Miller has no doubt been advised that the only remedy now available for the defense in this pending court-martial is to request that he be granted immunity and ordered to testify (which would include a requirement to submit to defense pre-trial questioning). Contrary to the report related to COL Pappas, there is no "acceptance" of immunity in military practice. Instead, when a potential witness invokes his or her privilege against self-incrimination, a request is made to the General Court-Martial Convening Authority, who is the general or admiral in command who convened (ordered) the court-martial. If this officer believes that the witness is necessary, he or she will issue a grant of immunity (almost always testimonial immunity) and an order the witness to testify truthfully. It will therefore be very interesting to see if the defense makes such a request, and even more interesting to see if it is granted.

If the request is granted, MG Miller will be required to testify truthfully to all relevant matters. If, however, the request is denied, the defense must then make a motion for appropriate relief to the Military Judge presiding in the case, who will review the basis for the denial of the immunity. If the Military Judge then determines that MG Miller's testimony is necessary to ensure the soldier is able to present a defense and receives a fair trial, he or she will order the General Court-Martial Convening Authority to grant immunity. If that order is not complied with, the Military Judge will almost certainly abate all proceedings against the soldier.

MG Miller is no doubt well aware of this process, and that his invocation will probably result in either a grant of immunity or an abatement of the proceedings. Whether these factors support or undermine the purported justification for his decision is for each observer to decide. It is certainly possible that he believes that counsel for the accused soldier is making a frivolous request, and that neither the Convening Authority nor the Military Judge will consider him a relevant witness. However, it does seem that this could just as easily be established by submitting to a defense interview and allowing the prosecution to object to his production. The only outcome of his decision which is not speculative is that if he does testify, it will only be under a grant of immunity; and that if granted immunity, he will have no choice but to testify.

Thus, whether MG Miller ends up on a witness stand depends on two primary considerations. First, will the defense be able to make the case that he is a necessary witness. Second, will the Convening Authority be willing to order a fellow general officer to testify under a grant of immunity, or will the pending court-martial be sacrificed in order to avoid such an outcome. If he is ordered to testify, will that testimony lead to new prosecutorial efforts? Only time will tell. But, there should be no doubt that this is indeed a significant development that should lead to some interesting decisions.

Happy 100th Anniversary to the American Society of International Law

Today is the 100th Anniversary of the founding to the American Society of International Law. As part of the centennial celebrations, the ASIL has a website covering the history of the Society (and note the pictures at the bottom of the timeline). The first 50 years are currently covered with more to come.

I am a big fan of the ASIL and that is not only because before entering academia full time, I was its the Director of Research and Outreach. The ASIL was founded by then-Secretary of State Elihu Root and then-Secretary of War William Howard Taft (soon to be President Taft). The Society was subsequently chartered by Congress to inform and engage the American public on issues of international law. Through its institutional ups and downs, the ASIL has always done that through its journal The American Journal of International Law, probably the most influential international law journal in the world, and through its books, briefings, reports, and other activities. The membership of the ASIL comes from across the political spectrum and the Society has a “big tent” approach to the profession. More than anything, the Society is devoted to intelligent debate and discussion on international law, and you can take part in such debate and discussion at its Annual Meeting.

For those of you who have enjoyed the discussions of this blog but who are not members of the ASIL, you should check it out.

International law would have been much the poorer without the ASIL.

So, Happy Birthday ASIL. Can't wait to see what the next hundred years will bring...

Alito (Again) on NSA Wiretapping and Youngstown

It's all Alito all the time here at Opinio Juris (OK, not quite. Thanks to Chris and Peggy for breaking the Alito obsession, but here I go again).

Sen. Feinstein and Sen. Feingold questioned Alito again on the NSA wiretapping issue and invokes, once again, Justice Jackson's concurrence in Youngstown setting out a framework for analyzing presidential powers. A couple of thoughts:

(1) Why is everyone obsessed with Justice Jackson's concurrence in Youngstown? It is 50 year old concurrence. Why hasn't anyone mentioned Dames & Moore, Justice Rehnquist's 1981 gloss on this same framework, which wasn't a concurrence? I know the Jackson concurrence is well-loved by legal academics, but it is not "binding precedent" nor is it "settled law". Yet everyone seems to treat it as a "super-duper" precedent.

(2) As long as we are talking Jackson's concurrence in Youngstown, I am glad Judge Alito clarified for Sen. Feinstein and others this essential point: not all statutes regulating the President's exercise of Commander in chief powers is constitutional.

To be sure, The President's power is at its lowest ebb when he seeks to act in the face of explicit congressional prohibition (arguably we are in that situation with the NSA wiretapping). But any reasonable judge has to then consider the constitutional question: Would a congressional prohibition on presidential wiretapping of international-domestic calls impermissibly encroach on the Commander in Chief power? It is theoretically possible (as Judge Alito seemed to point out) that the FISA restrictions on the President are unconstitutional.

This is a serious argument and one that a judge or justice must consider. It is not the President claiming that he can "override" federal statutes. Rather, he is claiming, as Judge Alito suggested, that the statute is unconstitutional and can't bind him, just like a statute that violated the Fourth Amendment. Hence, every president has claimed the War Powers Act is unconstitutional and doesn't bind them.

Oddly enough, Youngstown is one of the strongest precedents for the "Commander in Chief" argument. Yet everyone seems to wield it for the opposite proposition.

*UPDATE: Sen. Feingold goes back to this issue here, and seems to criticize Youngstown on exactly these grounds.

**UPDATE: Here is the transcript of the exchange

FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law. And you made comments about the balance of powers, that all branches of government are equal. There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee.
FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America’s intelligence activities. And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now. And I wanted to talk to you a little bit about the president’s plenary authorities as commander in chief -- plenary meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role. Now, we have explicit powers, as you’ve said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It’s headed by a general. So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic). Now, again to the Jackson test. When the president’s power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in.
FEINSTEIN: And FISA is very explicit. And let me read a part of it to you. Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted. It does provide -- you used the word general. It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours. I was concerned; there are two questions in this one statement.
FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?

ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute. But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed. So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on unconstitutional. Very few of us on this committee are not lawyers. I’m one of them. So let me just speak in common, everyday terms. There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done. As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words deter and preempt any future acts of terrorism or aggression against the United States.
FEINSTEIN: And he refused to do it. And, Mr. Chairman, if I could place this...
SPECTER: Without objection.
FEINSTEIN: ... statement in the record, since we are going to be having hearings on what’s happened. I think this is an inappropriate bit of legislative history. I’d like to place it in the record.
SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.
FEINSTEIN: Thank you. So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans. The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions. The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force? And I don’t know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other. Of course, there’s a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation. But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that’s being dealt with?
ALITO: And I think legislative history can be appropriately consulted. And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation. Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question. And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that’s right. Because detention is a necessary following of an authorization of military force, so detention is logical. When you’ve got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I’m not saying there isn’t a reason to do this.
FEINSTEIN: What I’m saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn’t that law prevail?

ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter. Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson’s method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...

FEINSTEIN: There was. No statutory authorization to wiretap, right?

ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...

FEINSTEIN: But, if there wasn’t...

ALITO: There might be a constitutional issue. Let me stop there. There would be a Fourth Amendment issue, obviously. If you went beyond -- if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson’s scheme, in the category where the president -- you would have to determine if this is the argument that is made; whether the president’s power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.

FEINSTEIN: Now, in my lay mind, the way I interpret that -- and correct me if I’m wrong -- is that you essentially have a conflict, and that it hasn’t been decided whether one trumps the other.

ALITO: I think that’s close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I’m not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.

Yesterday Latin America, Tomorrow the World!

Adam Isacson at Democracy Arsenal has a post on looking at U.S. foreign policy through the optic of a Latin American policy specialist. He explains that that “The biggest frustration by far[of being a Latin Americanist]... is watching the United States today repeating mistakes worldwide that it used to make only in Latin America.”

He sets out a series of quotes and descriptions which could all be from today’s headlines from Iraq or Guantanamo but, of course, they all are actually drawn from past U.S. actions in Latin America.

One hopes that we would learn from history. Isacson’s post is a good reminder.

Former Gitmo Commanding General Invokes the Fifth in Abu Ghraib Case

The Washington Post notes today that General Michael Miller, a former commander at the Guantanamo detention center who also assisted in setting up the center at Abu Ghraib, has invoked his right against self-incrimination and refused to give testimony in one of the military trials against a lower ranking soldier accused of abuse at Abu Ghraib:

Harvey Volzer, an attorney for one of the dog handlers, has been seeking to question Miller to determine whether Miller ordered the use of military working dogs to frighten detainees during interrogations at Abu Ghraib. Volzer has argued that the dog handlers were following orders when the animals were used against detainees.

Maj. Michelle E. Crawford, a defense lawyer representing Miller, said the general decided not to answer further questions because he has "been interviewed repeatedly over the last several years" about his role at Guantanamo Bay and his visit to Iraq and he stands by his many statements to Congress, Army investigators and lawyers. Miller's "choice to no longer answer the same questions . . . was based on the advice of counsel and includes the fact that he has already, and repeatedly, answered all inquiries fully," Crawford said.

Miller's decision came shortly after Col. Thomas M. Pappas, the commanding officer at Abu Ghraib, accepted immunity from prosecution this week and was ordered to testify at upcoming courts-martial. Pappas, a military intelligence officer, could be asked to detail high-level policies relating to the treatment of detainees at Abu Ghraib.

The failure of the DoD investigations of abuse at Abu Ghraib to lead to any criminal charges against senior officials has been repeatedly criticized by international human rights organizations, some of whom view the prosecution of the smaller fish as evidence of a cover up. (See this press release from Human Rights Watch.) I am no expert on military law, but would be interested in knowing from those of you more expert in this field whether this invocation of the the right to non-self incrimination is no big deal, or a sign that the net may be widened.

Alito on the Use of Force (and on John Yoo) (Updated)

Stunningly, Sen. Joe Biden has actually asked a good question: Can the President invade Iran without a declaration of war by Congress? (He claims that Professor "Ho" makes this argument. I assume he means Professor John Yoo of Berkeley).

Somewhat surprisingly, Alito gives Biden a fairly complete answer, even though this will almost certainly come before the Court soon. He explains that the "declare war" clause must mean something, he points to The Prize Cases that seem to recognize some independent presidential power to use military force. He also points to the political question doctrine, and then backs off and says he would have to study this more (he also says that he hasn't read John Yoo, which is another shocker!)

Anyway, I will post the transcript of the exchange when it is available.

Here is the full exchange:

BIDEN: . . .But having said that, let me go to an area that I hope you’ll engage me in. And it goes to executive power. I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of -- at least on my side of the aisle -- drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera. So it’s something I’ve dealt with a lot. Doesn’t mean I’m right about it, but I’ve thought a lot about it. And now there is a school of thought that’s emerging within the administration that is making -- not illegitimate -- an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.
BIDEN: And the fellow -- a very bright guy -- who is referred to as the architect of the president’s memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo. He’s written a book called The Powers of War and Peace. And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities. For example, he says that, The framing generation well understood that declarations of war were obsolete. He goes on to say, Given this context, it’s clear that Congress’ power to declare war does not constrain a president’s independent and plenary right, constitutional authority over the use of force. And he goes on and he argues, as you well know this argument -- I mean, not from your court, just as an informed, intelligent man -- there’s a great debate now of whether or not the administration’s internal position is correct. And that is, the president has the authority to go to war absent congressional authorization. And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn’t want to. That was the claim made. Similar claim made here, so I want to ask you a question. Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there’s an immediate threat to our national security?
ALITO: Well, that’s a question that I don’t think is settled by -- the whole issue of the extent of the president’s authority to authorize the use of military force without congressional approval has been the subject of a lot of debate. The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can’t be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces. The president has the power of the commander in chief. And I think there’s been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

BIDEN: Is that the deciding question, if the Congress does not have the time to act?

ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval. A lot of scholars say that what’s important as far as congressional approval is not the form, it’s not whether it’s a formal declaration of war or not, it’s whether there is authorization in one form or another. The war powers resolution was obviously an expression of the view on the part of Congress...
BIDEN: If I can interrupt, Judge, since I’m not going to have much time. The war powers resolution is a legislative act. I don’t want to get into that. I’m talking about the war clause. And the administration argues and Yoo argues that, quote, I do not think the president is constitutionally required to get legislative authorization for launching military hostilities. And that’s a pretty central question. That means, if that interpretation is taken, the president could invade -- and maybe there’s good reason to -- invade Iraq -- excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress. And that’s a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, No, no, no. The president’s authority falls into the zone where he needs it for emergency purposes, where he doesn’t have time to consult with the Congress. But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, Nope, the president has the authority, if he thinks it’s necessary, to move from a state of peace to a state of war without any congressional authorization.

ALITO: I hope I’m not giving you that impression, Senator, because I didn’t mean to...

BIDEN: Oh, OK, maybe you can...

ALITO: ... say that. I have not read Professor Yoo’s book or anything that he or anyone else has written setting out the theory that you’ve described.
ALITO: I’ve been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars -- there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn’t -- in most of those instances were -- the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier.

BIDEN: You and I both know that’s a different issue. The political question doctrine is a different issue than whether or not you think that -- I’m asking you as a citizen whether you think that as the administration is arguing -- for example, it argues that the case is made, and I’m quoting, that the Constitution permits the president to violate international law when he’s engaged in war. It just states it flatly. That’s what the memorandum of the Justice Department states flatly. The president has that sole authority. He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue -- this is this administration’s position, so that’s why it’s relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations. And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let’s say we didn’t want the president to invade Iran.
BIDEN: The administration argues we could pass a resolution saying that, You have no authority to invade Iran, and the president could the next day invade Iran. Our only recourse would be to cut off appropriations. But, as you know, there’s no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it’s a totally useless tool for the Congress in today’s world. You know? You can’t say, well, I’m going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf. So it’s really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there’s not an imminent threat against the United States. And that’s my question.

ALITO: And, Senator, if I’m confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I’ve described. But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question...


ALITO: ... including particularly one that is as momentous as this. I’ve set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that -- and I haven’t read Professor Yoo’s book or anything that he’s written on this issue -- I would have to study the question.

Law Blogging Without a Safety Net

Yesterday was not a stellar day for the law blog community. Here is what some of the most popular law blogs on the Internet were discussing: Volokh Conspiracy had a post that compared Ted Kennedy to Joseph McCarthy, Concurring Opinions had a post that had no less than 20 references to Jennifer Aniston nude, Professor Bainbridge had a post about Senator Joseph Biden cruising for chicks at Princeton, TaxProf Blog had a post about a flaming mouse, Conglomerate had a post about Coca-Cola with sugar, and How Appealing had a post on "scutinizing the virtue of girls" (yes, he is talking about that). By comparison, blogs like Althouse that long ago jumped the shark looked positively serious yesterday.
I know that law bloggers are posting without a safety net, but perhaps just a little more discipline might be in order? It is after all a new medium that we are trying to establish. I don't want to sound like the Jiminy Cricket of law blogs, but these are all law blogs that I greatly enjoy, and law professors that I greatly respect.
As Larry Solum has admonished: "Blog in haste, regret at leisure."

Wednesday, January 11, 2006

Where Milosevic Eats Cake with a Bosnian Muslim

Over at Slate, Julian Mortenson, who served as a legal officer at the ICTY, is reporting this week on life at the ICTY prison in the Hague. It's a fascinating read, particularly his description of the the way in which prisoners of different ethnic groups who are accused of commiting genocide and war crimes against one another's groups have found common cause in their incarceration. This excerpt about Milosevic eating cake to celebrate the release of a fellow prisoner is the most bizarre:

I remembered how, as our small group was walking down one of the prison corridors, we heard the murmur of a small gathering. It turned out to be a cell block celebration for a prisoner who was being released later that week. As we passed by the open door of the recreation room, McFadden leaned in and told the group that he would drop by for a chat once he'd seen us on our way. I glanced into the room while McFadden was talking, and there, plopped in the middle of about five other inmates, sat Slobodan Milosevic. His hair and casual clothes were rumpled, a piece of sheet cake sat on a paper plate in front of him, and he was holding a bite halfway to his mouth on a plastic fork. Right next to him at the low table, also sitting on the hard plastic seat of an elementary-school-style chair, was one of the tribunal's most prominent Bosnian Muslim defendants. And I thought to myself, the Yugoslav people, to the extent they ever existed at all, have vanished from the face of the earth. But somehow an ersatz version lives on within the walls of this high-tech jail, where Slobodan Milosevic—the Serb once known as the Butcher of Belgrade—can now share a quiet piece of cake with a Bosnian Muslim at a farewell party for their mutual friend.

Alito's Discussion of Immigration

Thus far, Judge Alito's testimony has not touched on immigration in any significant manner. But here is one exchange between Senator Coburn that addresses the issue of immigrants who appear before Judge Alito:

COBURN: ... During Judge Roberts' hearing, Senator Feinstein tried to get him to talk and speak out of his heart, and I thought it was a great question, so that American people can see your heart. This booklet's designed to protect the weak, to give equality to those who might not be able to do it themselves, to protect the frail, to make sure that there is equal justice under the law. You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent. Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame. But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives. And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position. And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

Later in the day, there also was an exchange between Senator Kohl and Judge Alito on Alito's immigration decisions:
KOHL: Last question: When we met privately, I asked you what sort of Supreme Court justice you would make, and your answer was fair when you said, "If you want to know what sort of justice I would make, look at the sort of a judge that I have been."... In immigration cases, The Post also found that you sided with immigrants who were trying to win asylum or block deportation only in one out of eight cases analyzed. This was much less than most judges in a national sample.

ALITO: ...On the immigration cases, I take very seriously -- and I don't know what the statistics are in this area, but I can tell you this: that I take very seriously the scope of review that I'm supposed to perform as an appellate judge. And that is usually dictated by Congress. In the area of immigration, Congress has spoken clearly. And as to factual decisions that are made by an immigration judge, what Congress has told us is, "You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did." And I very often see a record where I think it's doubtful, I say to myself, "I might have decided this differently, if I were the immigration judge." But I wasn't there. I didn't see the witnesses testify personally. And Congress has told me what my role is there. My role is not to substitute my judgment for that of the immigration judge. My job is to say, "Could a reasonable person have reached the conclusion that the immigration judge did?" And if I find that a reasonable person could have reached that conclusion, then it's my job to deny the petition for review. And that's what I do in those instances.

KOHL: I appreciate that. I would just comment, again, that your siding with immigrants who are trying to win asylum or block deportation -- you sided only in one out of eight cases that they analyzed.

KOHL: And this was much less than most judges in the national sample who were about evenly divided in their decisions on these issues. This was what their analysis indicated. So, for whatever it's worth, you were one out of eight, and a national sample of judges was about 50 percent. I only bring that up for your comment.

Of course, as I discussed here, the statistics for federal appellate reversals of immigration decisions is less than a 10 percent reversal rate, not 50 percent as suggested by Senator Kohl. Judge Alito's reversal record is 3 out of 17 cases, or 18 percent, far above the norm.

Related Links on Judge Alito and Immigration:
Judge Alito and Immigration
Judge Alito and Forced Abortions
Judge Alito and Forced Sterilizations

Alito: "Framers Would Be Stunned"

Following up on Peggy's post from yesterday and her earlier post today, Judge Alito was more explicit today in his rejection of the use of foreign and international law to interpret the Bill of Rights. Key quote: "I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world."

Here is an exchange between Senator Coburn and Judge Alito:

COBURN: ...Article III, Section 2 really delineates the scope for the courts in this country. And what it says is "all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority." So that really gives us the scope under Article III, Section 2. And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.

COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that's exactly what Article III, Section 2, says. And so there's no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, "Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law." So the question I have for you, and I couldn't get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don't think it is proper for the Supreme Court to use foreign law. And I personally believe that that's an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice. And I just wondered if you had any comments on that comment.

ALITO: Well, I don't think that we should look to foreign law to interpret our own Constitution. I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.

ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time. They wanted them to have the rights of Americans. And I think we should interpret our Constitution -- we should interpret our Constitution. And I don't think it's appropriate to look to foreign law. I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it's often difficult to understand exactly what you are to make of foreign court decisions. All countries don't set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues. When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you'd have to understand the jurisdiction and the authority of the foreign courts. And then sometimes it's misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it's located. If you focus too narrowly on that, you may distort the big picture. So for all those reasons, I just don't think that's a useful thing to do.

More on Alito and Foreign and International Sources

There is a bit more on foreign and international sources at today's hearings. This from the SCOTUSBlog live blog:

10.43 Coburn says that reference to foreign law undermines democracy and a violation of the Constitution. He thinks its use violates the "good behavior" qualification for judges.

10.41 Alito doesn't think foreign law is relevant either. The framers would be "stunned" to know that the Bill of Rights was to be interpreted by counting what the rest of the world does. The Bill of Rights was meant at the time to give Americans more rights than the rest of the world. There are also a host of practical problems with the use of foreign precedent.

10.40 Coburn doesn't like judicial reference to foreign law, and doesn't think the majority of American like it.

For reference, here are is a rough typology for application of foreign and international law sources in constitutional interpretation, which appears to be the limited context Coburn and Alito are discussing here:

1) Reference to foreign laws in death penalty cases (i.e., what is the standard for determining "cruel and unusual" under the 8th amendment, and should we include non-U.S. trends);

2) Reference to standards and norms created under international treaties to which the U.S. is not a party, or to which the U.S. has appended reservations (e.g., do the treaties tell us anything about what other "cruel and unusual" might mean?); and

3) Reference to the reasoning of international courts or foreign judicial opinions in interpreting constitutional questions (e.g., how have other judges interpreted the meaning of "cruel"?).

They are not talking about in this narrow context questions about the binding nature of certain U.S. treaty obligations, which branch gets to interpret the scope of a U.S. treaty obligation, or whether some treaties create enforceable individual rights. These are very important questions, often implicit in the exchanges at the hearing on questions of executive power.

We have discussed the appropriateness of references and citation to foreign and international law within the 3-part typology on Opinio Juris in the past. These posts have some useful background about the contours of the debate:

Earlier in the year, Julian and I discussed the Scalia-Breyer debate on foreign sources here, here, and here. And our guest Justice Richard Goldstone posited here that Scalia's objection to foreign and international references is one of originalism v. modernism. We also discussed in some detail the Roper v. Simmons case, in which the Court struck down the juvenile death penalty, and the extent to which Justice Kennedy's references in that opinion to foreign practice and international treaties was helpful (Julian here, and my response and reflection on the effect of international and foreign trends on US death penalty jurisprudence here.) Roger discussed the "insidious wiles" here and I responded here; our debate continued here and included a response from Professor Eugene Kontorovich here.

I'll post the full transcript of this excerpt when it becomes available.

Update: In a rare, near simultaneous post, Roger has posted the full transcript in his post above.

Alito and Presidential Authority under Youngstown

Peggy has already posted on one of the most important international law aspects of the Alito hearings today. But there was also some very useful discussion of executive authority under the Jackson trilogy of Youngstown. Here is an exchange between Senator Leahy and Alito that addresses torture and presidential authority:

"LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture. They tried to redefine torture, and they asserted, I quote, "that the president enjoys complete authority over the conduct of war," close quote. And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional." They seem to say that the president could immunize people from any prosecution if they violated our laws on torture. And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public. Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy.

LEAHY: What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?

ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States. Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.

LEAHY: Well, let's go into one of those specifics. Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?

ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point.

ALITO: And I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up. And very often there they don't make their way to the judiciary or they're not resolved by the judiciary; they're resolved by the other branches of the government.

LEAHY: But, Judge, I'm a little bit troubled by this because you said yesterday -- and I completely agreed with what you said -- that no one's above the law; no one's beneath the law. You're not above the law. I'm not. The president's not. But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law? I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was saying, "But that won't apply to me or people that I authorize." Doesn't that place not only the president but anybody he wants above the law?

ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president -- and it's set out expressly in the Constitution -- is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States. But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.

LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?

ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.

LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?

ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.

LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?

ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.

LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?

ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue."

Judge Alito's response seems a little unusual. First, he describes the third prong as the "twilight zone," which actually is the second prong of congressional silence. But more importantly, he suggests that in a third prong case, the President can never override a congressional statute. He says, "Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional." But the third prong in Jackson's concurrence in Youngstown says,
"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."
So does Alito have a narrower view of executive authority than is traditionally attributed to that branch under the third prong? I know Leahy wanted Alito to presume the statute was constitutional, which presumably meant Congress was acting within its enumerated powers. To which Alito responded that in such a case the President must comply with the statute. Is that correct? Even on matters that are part of inherent (not delegated) executive authority but overlap with concurrent authority of the legislative branch? I always thought this meant what it said, that the President's power is at "its lowest ebb," but not non-existent. I would be curious what others who are Youngstown experts think.

Tuesday, January 10, 2006

ICJ Watch: Djibouti Sues France

Sure, Judge Alito is getting grilled by the Senate, but let's turn to really important stuff. Like the news today that the Republic of Djibouti has filed an application with the International Court of Justice against France alleging France violated its treaty obligations to provide judicial assistance in a Djibouti criminal investigation.

This looks like a fairly tedious and unimportant case. The only interesting aspect (to me, anyway) is whether France refuses to accept the ICJ's jurisdiction. France famously withdrew from the compulsory jurisdiction of the ICJ back in 1996 (those unilateralist Frenchies, so disrespectful of international courts!) and this case can only go forward with France's consent. If France refuses to accept ICJ jurisdiction, even here in this fairly minor case, it will be a slap at the ICJ's authority and credibility.

(By the way, I know many of our readers are savvy well-educated, well-travelled internationalists. But how many of you really know where Djibouti is? How many of you knew it is located in between Somalia and Eritrea and the location of the main U.S. military base in that region? C'mon, you can admit it if you didn't know...I certainly didn't. )

Alito Responds to Senator Kyl on Use of Foreign Law: Siding with the Anti-Internationalists?

SCOTUSBlog's live blogging from the Alito hearings includes this exchange between Senator Kyl and Judge Alito on the appropriateness of foreign and international law in U.S. jurisprudence:

12:58: Sen. Kyl asks when it is appropriate to focus on foreign law. Alito says it is not helpful to interpret the constitution. The structure of our government is unique to our country. As for the protection of individual rights, we should look to our own constitution and precedents. It is legitimate to look to foreign law in some situations, i.e. interpretation of a treaty. In such a case, foreign law would not be controlling, but could be "useful to look to." Sometimes in private litigation, the rule of decision may be governed by foreign law. But generally, it is not helpful to interpret the constitution.

Sounds similar to Chief Justice Roberts' response to the same line of questioning from Kyl (see the post here.)

I'll post the transcript excerpt when it is available

Update: Here is the transcript excerpt:

KYL: Thank you. Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it's obvious from my question that I do not support the use of foreign law as authority in United States court opinions. I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer's 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer's repeated appeals -- appeals brought by the convict -- should be considered cruel and unusual punishment.
KYL: I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self-government and it's utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it's needlessly disrespectful of the American people as seen through the widespread public criticism of the trend. Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?

ALITO: I don't think that foreign law is helpful in interpreting the Constitution. Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights. The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did.

ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.

There are other legal issues that come up in which I think it's legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that's been entered into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn't say that that's controlling, but it's something that is useful to look to.

In private litigation, it's often the case -- I've had cases like this -- in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, "This contract is to be governed by the laws of New Zealand or wherever." Of course, there, you have to look to the law of New Zealand or whatever the country is. So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don't think it's helpful in interpreting our Constitution.

Humane Treatment and the Protection of U.S. Forces

During this last week, while enjoying participating in the dialogue on this website, I have made several references to the humane treatment obligation imposed by the law of war (or, as known to many, international humanitarian law). I believe it is essential that the United States express uncompromising commitment to this norm, and ensure that it is understood and implemented by our armed forces (and other government agencies conducting operations related to the War on Terror).

In this final post, I would like to address why I believe so strongly that this norm is truly a "first principle" of the law of war. The answer, quite simply, is that any compromise to this principldestabilizees the careful balance between military necessity and humanity, a balance that I believe guides interpretation of all other provisions of the law of war. Preserving this balance is essential for the protection of our forces.

Many may assume that by protection I am referring to the encouragement of reciprocity. Not necessarily. Reciprocity is no doubt an essential benefit of compliance with the law of war, and therefore is considered a primary rationale for compliance with this law. However, in the context of the modern battlefield, this rationale may no longer be as persuasive as in the past. In fact, for at least a decade, U.S. military strategists have studied the concept of "asymmetrical warfare", which is characterized by an enemy seeking to exploit U.S. commitment to compliance with the law of war to gain a tactical advantage. This is exactly the dynamic our forces confront in Afghanistan and Iraq. Asserting encouragement of reciprocity as the primary rationale for compliance with the constraints of the law of war is a hard sell to soldiers confronting such an enemy.

The protection I refer to is the protection of the moral and psychological well-being of the men and women called upon to fight our wars. In such a brutal endeavor, these men and women need a legal framework to facilitate distinctions between right and wrong. The law of war through the necessity/humanity balance - provides this framework. When the balance between this first principles is distorted to fit the needs of mission accomplishment, the accordant loss of clarity for the force compromises their ability to maintain these distinctions. History provides compelling evidence that the consequence of such distortion is a breakdown of military discipline. Military leaders have historically understood this truism, which explains why it is possible to trace the roots of the contemporary law of war to influences and decisions of great military minds. It is also why so many highly respected veterans from our armed forces strongly object to Bush administration interpretations of this law.

During the last four years, this purpose of the law of war has been significantly stressed, particularly in relation to the humane treatment obligation. Much of the debate over the Bush administration approach to the War on Terror has focused on decisions that appear to violate this obligation (which the administration does not even acknowledge as an obligation). Necessity has been the primary justification for these decisions. This aggressive interpretation of what is and what is not humane has surprised not only outside observers of our government, but many career military and civilian lawyers serving our armed forces. Most of these professionals believe humane treatment is in fact an fundamental obligation, and that compliance can best be achieved by applying traditionally endorsed standards. This requires no list of what is and what is not humane. Instead, a simple but highly effective test is applied to any decision guided by this obligation: if an opponent were about to do this to one of my troops, would I consider it wrong.

While this might appear overly simplistic, the key to why it is effective is the protective instinct military leaders feel towards subordinates. Note that this is not a pure "do unto others" test. Such a test would be ineffective, for most military personnel, if asked to consider what they could endure, will accept great hardship. However, military leaders are taught from the outset of their careers that "taking care of your people" is second only to mission accomplishment as a priority. This protective instinct was perhaps best expressed by General Robert E. Lee, who is noted to have said that the hardest thing about being a General is that you must order the destruction of the thing you love most, referring obviously to his soldiers.

A military leader who projects a detainee treatment decision to his or her own force will be guided by this protective instinct. This in turn will result in decisions with the greatest probability of complying with the humane treatment obligation. Consider just a few examples. No matter what type of conflict, or what type of opponent, U.S. leaders would expect their subordinates, if captured, to receive adequate food, water, shelter, and medical care; to be removed (when feasible) from the area of immediate conflict; to have the opportunity to communicate with an impartial relief organization so that the world knows of the detention; not to be physically harmed; not to be publicly humiliated. They would, however, fully expect their soldier to be interrogated, and that the interrogation would involve the use of manipulation, rewards and incentives, and trickery. As for the most difficult questions related to the line between permissible and impermissible interrogation techniques, this standard should help to maintain a perspective consistent with the "spirit" of this obligation.

Does such an approach eliminate all uncertainty? No. However, it does create a decisional framework based on good faith adherence to the underlying spirit of the law of war. That spirit is clear: participants in conflict are all potential "victims of war", and therefore when captured, they should be treated no better, but certainly no worse, than the capturing commander would expect his forces to be treated. In short, detained enemy personnel do not cease to be human beings. In the end, this spirit protects not only enemy detainees under U.S. control, but provides U.S. forces with the ability to reconcile the brutality of war with their own sense of right and wrong, which is essential for their own protection.

Monday, January 09, 2006

Prominent U.S. Law Scholars Reject Legality of NSA Spying

A group of prominent law scholars and attorneys has issued a letter rejecting the U.S. government's legal justification for the NSA spying program (the legality of which Professor Weinberger and I debated here and here). This is not your typical letter by the liberal law professoriate (although the usual suspects like Harold Koh, Laurence Tribe and Kathleen Sullivan appear). The list of those signing also includes Richard Epstein, the famously libertarian U. Chicago law scholar and Curtis Bradley, a leading centrist Duke U. international law professor.

The letter critiques the Department of Justice's legal justifications for the NSA wiretapping program, in particular, the U.S. government's reliance on the Sept. 11 Resolution authorizing military force, to circumvent or avoid the restrictions created by the Foreign Intelligence Surveillance Act (FISA). Of course it is well-crafted, reasonable, and persuasive. It takes a couple of unnecessary shots at John Yoo, I think, but it is still very sensible in focusing on the statutory rather than constitutional arguments. But while I am halfway persuaded, I do wonder if the law prof letter relies too heavily on a FISA provisions limiting wiretaps to 15 days after the declaration of war.

Here is the key graf:

[E]ven where Congress has declared war—a more formal step than an authorization such as the AUMF—the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization. [footnote omitted] Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA’s terms. The DOJ letter remarkably does not even mention FISA’s fifteen-day war provision, which directly refutes the President’s asserted "implied" authority.

As I've argued earlier, it is not entirely obvious to me that an authorization for the use of military force (the "AUMF") must be understood as transferring less authority to the executive branch than a declaration of war. The AUMF could easily be read (certainly this AUMF) to authorize very broad activities by the executive branch in that in some cases exceed the powers it could exercise in a declared war against another government. The nature of the conflict with Al Qaeda (relying heavily on intelligence to identify the location of the enemy, which does not operate consistently in another state) seems to call for just such a reading.

If I'm right (a very big "if" given the intellectual firepower on the other side of this question), then the "declaration of war" provision of FISA is not quite the silver bullet the law profs suggest it is. Of course, they still have a very strong case, but I'm not sure it's a winner.

The Afghanistan Detainee Transfer Challenge

Recent news reports indicate that the U.S. is pressing ahead with plans to build a high security prison in Afghanistan (see here and here). According to these reports, this is in preparation for transferring hundreds of "enemy combatants" from U.S. to Afghan custody. These detainees are currently held in U.S. operated detention facilities in both Afghanistan and Guantanamo Bay.

While the construction of a high security prison and the training of an Afghan guard force may remove the primary practical impediments for such transfer, this concept raises significant legal questions. Virtually all of the detainees that will in theory be transferred to Afghan control were captured by the U.S. armed forces during combat operations in Afghanistan. Because the President determined that captured Taliban fighters were conclusively not qualified for Prisoner of War status under the Third Geneva Convention, and this treaty did not apply to the conflict between U.S. forces and Al Qaeda operatives, none of these individuals are classified as Prisoners of War. Instead, they are generally regarded as "enemy combatants", a term of convenience created by the Department of Defense to refer to members of armed organizations opposing U.S. forces who do not qualify for Prisoner of War status.

Since the inception of Operation Enduring Freedom in Afghanistan, the U.S. has been criticized for failing to articulate a legal basis for these detentions. The primary response has been a general military necessity theory - that the U.S. has authority to deprive these "enemy combatants" of the ability to rejoin the ongoing conflict. Presumably, the U.S. will attempt to convince the Afghan government to adopt the same theory for the continued detention of this population. Or, perhaps the Afghan government will establish an alternate legal basis for their continued detention.

Even assuming the establishment of an acceptable legal basis for continued detention after transfer, many other issues will need to be addressed. Will the Afghan government simply accept the "continued threat" determination of the U.S.? Or, will an independent mechanism be established to review such determinations. If so, will it be a military or civilian review entity, and what procedures will it utilize?

If such a review process is established, what criteria will it create to justify continued detention? Will a potential threat of rejoining dissident Taliban forces justify detention without charge? Or, will these detainees be subject to a criminal process for their combatant activities prior to capture? If so, will the desire to "prosecute or release" lead to charging war crimes before an Afghan version of the Military Commission? Finally, and perhaps most significantly, what will be established as the "termination point" for these detentions.

While the prospect of a large scale transfer of detainees from U.S. to Afghan control may seem troubling, the commitment of the U.S. to build this detention facility is clear evidence that such a policy is almost certainly going to be implemented. It is almost just as certain that the U.S. will provide substantial legal support to the Afghan's in order to help "set the conditions" for this process. Based on the lessons of the last few years, look for the U.S. military and civilian lawyers tasked with providing this support to seek out inter-agency, academic, and NGO expertise to answer these questions and set these conditions as effectively as possible.

Courts-Martial v. Military Commissions

Thanks Professor Ku for raising some great questions in response to my Courts-Martial v. Military Commission post. I will try and clarify some of my views.

First, my discussion of this alternate tribunal was directed more towards Chancellor Merkel's comment that some alternate means must be developed to deal with the detainees at GTMO. I agree with you that use of courts-martial would probably not eliminate the need for a detention/confinement facility like the one at GTMO. I am not sure if original use of courts-martial would have impacted the need for a detention facility at GTMO. What I do know is that the President has made a determined effort to prohibit judicial review of cases brought before the Military Commission. This was explicit in the Military Order that created the Commission. However, it might have also motivated the choice of GTMO as the detention center because of the administration belief that federal court jurisdiction did not extend to that location.

I do, however, believe that the detention operation at GTMO and the Military Commission concept are linked in the minds of many observers and critics of U.S. policy. I believe the creation of a "special" tribunal for the sole purpose of dealing with the type of individuals detained at GTMO, under plenary executive branch authority, contributed to the perception that the entire GTMO operation was of dubious legality. While it is pure speculation, I also believe that if the U.S. had originally decided to use the courts-martial process to hold detainees accountable for alleged war crimes, it would have enhanced the perception that the U.S. was making a good faith effort to address the challenges associated with these detainees within the limits of the law. Even at this late stage, I think it would have a positive effect.

I also agree with you that most critics are looking for a civilian process. However, it would have been much easier for the U.S. to make the case that use of courts-martial reflected a reasonable balance between the desire to treat offenders as "war criminals" by allowing them to be judged by members of the military profession and the need to uphold basic principles of justice. Would I support civilian process? If the prosecution can properly allege a war crime, I believe any tribunal that satisfies basic principles of justice vested with jurisdiction to try such offenses is appropriate. My personal preference would be for a military court, because I believe the use of such courts to hold individuals accountable for violations of the law of war contributes to the validity of that law. But I also recognize that prosecution in an Article III court for violation of the War Crimes Act would be equally appropriate.

Finally, contrary to what my original post may have suggested, I do not believe the current Military Commission is a valid tribunal. Even assuming the acts of detainees at GTMO can be properly characterized as violations of the law of war, I do not believe the current Commission structure satisfies minimum standards of justice necessary to qualify as "a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples" (see here for Common Article 3). The most obvious deficiencies, as I mentioned in my original post, include the plenary authority of the President and Secretary of Defense over the process, and the lack of any meaningful judicial review. In short, I believe the U.S. must accept the "bitter with the sweet." It cannot legitimately invoke the authority of the law of war to create a Military Commission and charge violations of that law without affording the judicial guarantees required by that same source of law. I believe a General Court-Martial satisfies these requirements.

Would it make a difference to the Germans or other critics? Maybe not, but I believe it would be an alternative that would, over time, earn far more respect than our current approach.

Most Popular Law Blogs

There is great commentary today at Prawfsblawg, Concurring Opinions, and Tax Prof Blog on the topic of law blogging. In light of that discussion, I thought it might be interesting to know what are the most popular law blogs based on traffic reports available here.

I am excluding blogs by law professors that are not true law blogs (e.g., Instapundit (#4), Hugh Hewitt (#34), Althouse (#85)), as well as those blogs that straddle the fence (e.g., Is that Legal? (#880)).

But I do not distinguish between law blogs by professors or practitioners because I suspect that law blog consumers do not make that distinction. I also include the ranking of the blog among all blogs on the Internet.

This list includes all the law blogs that are in the top 2,500 of all blogs on the Internet. There may be a few blogs that almost certainly should be on this list (Becker-Posner Blog, SCOTUSblog, The Right Coast, Legal Theory Blog), but traffic information is not available. If I missed a law blog that should be included please let me know.

Here are the results:

1. The Volokh Conspiracy (#46)
2. How Appealing (#146)
3. Balkinization (#189)
4. Professor Bainbridge (#192)
5. Sentencing Law and Policy (#367)
6. TaxProf Blog (#371)
7. (#420)
8. Conglomerate (#448)
9. PrawfsBlawg (#475)
10. Concurring Opinions (#524)
11. ACSBlog (#762)
12. Leiter’s Law School Rankings (#765)
13. Appellate Law and Practice (#1083)
14. Southern California Law Blog (#1084)
15. Opinio Juris (#1183)
16. Ideoblog (#1194)
17. ContractsProf Blog (#1225)
18. CrimLaw (#1378)
19. Business Law Prof Blog (#1820)

UPDATE: I will update this list today and tomorrow as I receive comments and corrections. Here are the changes from the original post so far:

a. In the original post I inadvertently placed The Right Coast and the Legal Theory Blog on the list at #8 and #11, respectively, based on link ranking. They do not have a traffic ranking. The list has been corrected.

b. In the original post was omitted. It is now included.

c. One prominent law blogger currently on this list emailed and suggested Conglomerate should be included as a law blog and not a straddler. It is now included and the ranking has been updated.

d. In the original post Sentencing Law and Policy was omitted. It is now included.

e. In the original post Ideoblog was omitted. It is now included.

UPDATE: Another email comment from a prominent law blogger suggested that TLB traffic ranking is imperfect because of RSS feeds which never register on the traffic reports. I agree, but do not know of a better way to roughly gauge how many people are actually reading the law blogs, unless the numbers for TLB traffic rankings and RSS feed readership estimates can be combined together. If there is an easy way to access and combine those two groups of readers in traffic estimates for all the major law blogs I would like to know.
UPDATE: TaxProf Blog has modified this ranking and excluded law blogs by practitioners (How Appealing, ACS Blog, Appellate Law and Practice, Southern California Law Blog, CrimLaw). The ranking of the most popular law blogs by law professors is available here.

Court-Martials v. Military Commissions

I just wanted to jump in with a quick response to Geoffrey Corn's excellent post in favor of general court martials over military commissions. If I read his post correctly, he is criticizing the Guantanamo detention centers and the use of military commissions on pragmatic foreign policy grounds rather than on purely legal ones. In other words, he is not contesting the legality of such tribunals under domestic or international law, but he is arguing for different procedures in order to satisfy the concerns of foreign allies.

I think this is a very strong criticism, and one I partially share. But I do have a couple of questions:

(1) Is there any reason to believe that allies like Germany would be satisfied by the use of general court martials instead of military commissions? I realize that there are certain procedural differences that may seem significant to military law experts, but to an outsider, it still looks like a rather stacked process against the detainees. Aren't critics of U.S. policy really looking for a civilian judicial process, either international or domestic? And would Geoffrey support such a civilian process?

(2) Most importantly, would the use of general court martials have obviated the need for a Guantanamo bay or Guantanamo Bay-like facility to detain combatants that may or may not be charged with crimes? Isn't it quite likely that allies like Germany would have protested any U.S. military detention center seeking to hold detainees no matter where it is located?

Anyway, just a quick response. I would be curious to hear Geoff's thoughts.