Saturday, January 21, 2006

Bridge Blogging to Iran

Rebecca MacKinnon at Harvard Law School's Berkman Center for Internet and Society and regular blogger at RConversation, is doing some fascinating work on promoting and cataloguing the use of global blogging to provide an alternative means of information in repressive regimes. She calls it "bridge blogging." If the government controls the media in a particular country such as China or Iran, then how can locals get unfiltered information? One way is through "bridge bloggers" who write outside the country about events inside the country.

One such bridge blogger that MacKinnon highlights in a recent book interview is an Iranian dissident who lives in Canada named Hossein Derakhshan. Derakhshan writes a Persian/English blog at Hoder.com. Here is an excerpt of a recent interview that Hoder had with a German e-magazine, Jetzt.de, that gives you a flavor of the impact that bridge blogging is having in a country such as Iran:

Do you actually think that blogs have the ability to somehow change a political system as authorical as it is at time in Iran? Yes, but not directly. Masoud Behnoud, a veteran journalist and a blogger once wrote if blogs were around during the revolution and the war, things would've turned out differently. I think the most important function that blogs have in Iran right now is the public sphere they've created, referring to Habermas' concept. Blogs are now this unique space in which a relatively equal, interactive and collective debate could happen out of the government's control, and among a very influential group of people who are, sociologically speaking, reference groups for a lot of people around them.

Can the Iranian Blogosphere count as a realistic reflection for the common opinion of young Iranians? I believe so. Mainly because higher education in Iran is still free and therefore open even to the lower class. A lot of these bloggers are introduced to the concept of blogs in their computer labs and update them from there. Internet access cards and internet cafes are also widely available in even small cities in Iran because they make sense economically. There are now 7.5 million internet users in Iran and it is estimated there are over 700 thousand blogs written by Iranians. I can even say that reading or writing blogs is one of the biggest motives for Iranians for paying for Internet access – obviously after porn. According to a blogger, young people now chat less and blog more.

Nasrin Alavi wrote in her book “We are Iran”, that you were among the first who wrote a weblog in Persian plus giving a short “how to do a weblog”. Do you somehow feel like an Idol? Maybe Internet evangelist is better title. I've spent the past seven years introducing and promoting liberating technologies such as Internet, email, blogs, photoblogs, podcasts, etc. Before leaving for Canada in Dec. 2000, I was writing a daily column called "Internet" in the most popular reformist newspaper, titled "Asr-e Azadegan", which was eventually shut down after a few months.

I'm still getting emails from people who had no idea what Internet was at the time and were just collecting the column to read when they got access to the Internet. I was writing, in a simple and casual language -- language of my generation -- about how Internet could improve people's daily lives. Our newspaper was the first one which started to mention columnists' email addresses due to my persistence and my readers still remember how in my column I was nagging about the fact that some of them were not getting it at the time. Now they all not only have emails, but also they are savvy bloggers. Ask the famous satirist Ebrahim Nabavi.

I did the same thing for blogs. I dedicated the first year of my high-speed Internet access – which obviously happened in Canada where I immigrated to – introducing and promoting blogs.

I made a lot of blogs for people, spent tens of hours helping them with the technical issues, dragged a number of famous journalists to do it in order to give more credibility to it, kept a huge list of all Persian bloggers by the time manually and then later created a website to list them automatically with the help of a friend, etc. And I kept introducing new tools and technologies such as RSS feeds, blogrolls, It's really unfair to say I've only written an instruction.

Is your blog available from Iran? Its main URL (hoder.com) is filtered or blocked for Iranians in Iran by the government. But I've bought some other domain names such as hoder.us, hoder.info, editormyself.com, h0der.com etc. and many people access it through these addresses. But the thing is that it's very difficult to inform the readers about these new domain names. Because if they were too public, the officials would find it and filter it. If it's not public enough, people can't use them.

So it's a very interesting virtual partisanship which invoices a lot of psychological tricks. Such as using 0 (Zero) instead of Os so it still looks like the old address and the official think they've already filtered it. Lots of such small tricks.

However, other than the average of six, seven thousand readers who visit my blog everyday, I have over 11,000 subscribers to the blog through email; which is incredible. Email is the last thing they can block or control and in countries like Iran and China, I believe, email is the best way to get around internet censorship. My nightmare is to lose this extremely valuable list.
And Hoder, who clearly loathes Ahmadinejad, has some surprising opinions for the West. For example, in this open letter to US and EU leaders Hoder argues that "you can't stop Iran from achieving nuclear weapons... so ... instead of putting all your energy on stopping Iran, channel all your resources to make this regime change its behavior.... [I]nstead of promoting inaction and boycott, encourage everyone to participate in the coming elections. The way you did and still do in Iraq."

One can certainly see how bridge blogging has the potential to dramatically impact access to information in repressive regimes such as Iran, as well as offer the outside world insights into the mindset of the common Iranian behind the curtain. Detailed, opinionated information about events relevant to Iran for all the world to read online and thousands of Iranians to read by email.

So what is the future of bridge blogging? Rebecca MacKinnon writes, "It is going to be fascinating to see how this develops and what kind of impact the blogs begin to have on press and politics in various countries. It's still in its very early days but all of these people that I have mentioned are playing historic roles in changing the way political discussion takes place in these countries."

Bridge blogging is one of the more exciting events occuring on the blogosphere. While blog pundits in the United States can make a marginal difference, bridge bloggers in other countries are providing a critical source of fresh, clear, bottom-up communication to their fellow citizens. In countries where the mass media is polluted by government controls, bridge bloggers can quench the thirst for less filtered news.

Friday, January 20, 2006

Translation of Altmann Award for Klimt Paintings

Randol Schoenberg has provided an English translation of the arbitration award by the Austrian arbitral panel regarding the claim by Maria Altmann against Austria for five Gustav Klimt paintings. An English translation is here. I published a post about the decision earlier this week, available here. Here is the dispositive language:
1. The Republic of Austria acquired ownership of the paintings by Gustav Klimt, Adele Bloch-Bauer I, Adele Bloch-Bauer II, Apfelbaum, Buchenwald/Birkenwald, and Häuser in Unterach am Attersee by virtue of the settlement with the representative of the heirs of Ferdinand Bloch-Bauer, Dr. Gustav Rinesch, in 1948.
2. The conditions of the Federal Act Regarding the Restitution of Artworks from Austrian Federal Museums and Collections dated 4th December 1998, Federal Law Gazette 1 No. 18111998 for the return of the five paintings indicated above without remuneration to the heirs of Ferdinand Bloch-Bauer are fulfilled.
3. Pursuant to Section B of the Arbitration Agreement, the Republic of Austria shall bear the costs of the proceedings.

Flipping Youngstown: The DOJ Unveils its Legal Defense of NSA Spying

As the NYT reports, the U.S. Justice Department has released a memo defending the legality of the controversial NSA spying program. The NYT (of course) barely describes the memo and then devotes half of the article to quotes by legal experts who say it is unpersuasive. Dean Robert Reinstein speaks of a scholarly consensus that the NSA program is illegal.

Unbelievably, Marty Lederman of Balkinization has not weighed in yet (I spoke too soon, Marty is on the case here and Orin Kerr is on the case here), so let me rush to be the first to blog about the DOJ's memo, which (contra the NYT and Dean Reinstein) I found to be quite persuasive and far from weak.

Here are the highlights:

(1) Youngstown

The memo invokes the Jackson concurrence in Youngstown, but "flips" the case in favor of the Executive. The President is not acting in Category III, the "lowest ebb," where Congress has prohibited the action by the President. Rather, he is acting in "Category I", or at the "zenith" of his powers because Congress has authorized him to "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Warrantless wiretapping of suspected Al Qaeda callers seems to fit this language, if broadly construed.

The memo then explains that this language ought to be broadly construed by because warrantless wiretapping in pursuit of foreign intelligence, especially in pursuit of foreign intelligence that might prevent a terrorist attack, is an inherent constitutional power allocated exclusively to the President. They even quote Justice Jackson (when he was a wartime Attorney General) in support of this authority.

(2) The Authorization for the Use of Military Force and Hamdi

Moreover, this analysis tracks the rule in Hamdi which teaches that the AUMF should be interpreted to authorize all actions by the President that are a "fundamental incident of the use of military force." The memo cites all sorts of military authorities for the very plausible view that intercepting foreign enemy communications is one of those fundamental incidents.

(3) The Foreign Intelligence Surveillance Act

The biggest obstacle for the DOJ's memo is FISA, the federal statute that prohibits domestic wiretapping without a warrant by a special intelligence court. Here, the memo digs up lots of legislative history that supports the limited scope of FISA. None is definitive, but some does hint that NSA wiretapping of international communications involving Americans was not within the statute's reach. It relies heavily on the exception in FISA for wiretapping "authorized by statute" thus returning to its heavy reliance on the AUMF. It reads this language as allowing warrantless wiretapping without requiring a repeal or specific amendment of FISA.

Most importantly, though, the memo squarely takes on the FISA provision (section111) providing for a 15 day period of warrantless wiretapping following a declaration of war. It suggests that the legislative history does not support reading this provision as limiting warrantless wiretapping when there is no declaration of war. Indeed, the DOJ memo makes the argument I made here: that an AUMF might be broader, or at least, more specific in its authorization of wiretapping than a declaration of war. As the memo states:

As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not.

Indeed, Section 111 should give rise to the opposite inference. While a declaration of war allows only 15 days of wiretapping, Congress left out "authorization for the use of military force" resolutions on the assumption that those resultions would authorize more than 15 days of wiretapping.


***

All in all, the memo strikes me as a fairly persuasive response to the critics of the legality of the NSA program. The critics can rightly point to the pretty broad prohibitions in FISA while the President can rightly point to the pretty broad language in the AUMF.

I guess for me, the question boils down to whether warrantless wiretapping of foreign-domestic phone calls is a plausible "fundamental incident of war powers." Historically, I'm not so sure. But in this war, where the primary goal of the enemy is to launch a terrorist attack inside the U.S., it seems far more likely.

The memo makes (to me) a persuasive analogy between foreign-domestic wiretapping and the President's power to respond to a foreign-domestic attack in the United States without congressional authorization. If, for instance, the President can order an attack on a hijacked American airliner carrying Americans but arriving from a foreign country (which he undoubtedly can), then it seems that he should also be able to wiretap foreigners calling Americans who might be planning to hijack an airliner.

No matter where I come down in the end, I think it is far too early for experts like Dean Reinstein of Temple to declare that this is a "pretty straightforward case" of the President acting illegally. The DOJ memo is not perfect, but it makes a very strong case that this is a hard rather than an easy case.

Thursday, January 19, 2006

Human Rights Watch Issues 2006 Annual Report

Human Rights Watch issued its 2006 annual report yesterday. The press release focused on the United States "conscious policy choice by senior U.S. government officials" to engage in abusive inerrogation. That policy has "hampered Washington’s ability to cajole or pressure other states into respecting international law." “Responsibility for the use of torture and mistreatment can no longer credibly be passed off to misadventures by low-ranking soldiers on the nightshift,” said Roth. “The Bush administration must appoint a special prosecutor to examine these abuses, and Congress should set up an independent, bipartisan panel to investigate.” The press release also sharply criticized Canada, Britain and the rest of the EU for "subordinat[ing] human rights in its relationship with others deemed useful in fighting terrorism."
Kenneth Roth's introduction is even more vitriolic in its criticism, stating that, "The U.S. government’s use and defense of torture and inhumane treatment played the largest role in undermining Washington’s ability to promote human rights. In the course of 2005, it became indisputable that U.S. mistreatment of detainees reflected not a failure of training, discipline, or oversight, but a deliberate policy choice."
There is surprisingly little in the press release about how the actual act of terrorism is a gross violation of human rights. One sentence in the press release noted in passing that "fighting terrorism is central to the human rights cause." Roth's introduction provides a few more details, but then immediately returns to criticism of the West: "Fighting terrorism is central to the human rights cause. Any deliberate attack on civilians is an affront to fundamental values of the human rights movement. And acts of terrorism took an appalling toll in 2005. In Iraq attacks on civilians occurred nearly every day, killing thousands, while other terror attacks claimed the lives of civilians in Afghanistan, Britain, Egypt, India, Indonesia, Israel, Jordan, Nepal, Pakistan, Thailand, and the United Kingdom. But the willingness to flout human rights to fight terrorism is not only illegal and wrong; it is counterproductive. These human rights violations generate indignation and outrage that spur terrorist recruitment, undermine the public cooperation with law-enforcement officials that is essential to exposing secret terrorist cells, and cede the moral high ground for those combating the terrorist scourge."
What is so disappointing to me is that Human Rights Watch admits that "thousands" are being killed by terrorism in over a dozen countries, and yet the overwhelming focus of the press release and Roth's introduction is on interrogation techniques of the United States. Buried in the report is news that two million are displaced in Sudan, and that in that country "killings, rape, torture, looting of civilian livestock and other property took place on a regular basis." Page after page of the annual report discusses the "pervasive" human rights violations of Saudi Arabia, "routine" torture in Iran and Egypt, "serious human rights problems" in Venezuela relating to police violence, torture, and abusive prison conditions, and serious problems with "torture and ill-treatment" in Mexico. The report notes that Russia "slipped deeper into authoritarianism," while China, "remains a one-party state that does not hold national elections, has no independent judiciary, leads the world in executions, aggressively censors the Internet, bans independent trade unions, and represses minorities such as Tibetans, Uighurs, and Mongolians."
Given the state of human rights around the globe, why is it that Human Rights Watch is so laser focused on the United States? If the annual report is intended to catalogue and highlight the globe's human rights problems, shouldn't the introduction and press release be faithful to that catalogue? I know (and share) the traditional argument that the United States and Europe must be held to a higher standard. But does that justify a global human rights organization, whose motto is "defending human rights worldwide," singling out this country for its harshest criticism? Of all the human rights abuses in the world--the extrajudicial killings, the routine tortures, the grave police violence, the former assassins in political power in Iran bent on the nuclear annihilation of Israel, the genocide in Darfur--what deserves the world's greatest attention are events such as the Bush Administration's opposition to the McCain Amendment? Would Transparency International or Freedom House engage in such overtly political reporting in their annual reports? Of course, I'm not excusing the human rights abuses of any country. But I just find it curious. And disappointing.

Arbitrating By Email

Interesting decision by an English court (Queens Bench Commercial Court) that email is sufficient to arbitrate a maritime dispute under the English Arbitration Act 1996. Notice of the arbitration, together with various subsequent communications and briefings, were all done by email. Before rendering the award, the arbitrator noted that "No Defence submissions were received at any time. [But] I was and am satisfied that [defendants] are aware of these proceedings and that they have had a reasonable time to serve Defence Submissions. Accordingly I proceeded to my Award." After receiving a $40,000 adverse award in the mail, attorneys for the defendants argued that clerical staff ignored the emails and queried why no other medium of communication was utilized. Apparently the clerical staff thought the emails were spam and ignored them. Nonetheless, the Court ruled that the email communications were sufficient.

There is no reason why, in this context, delivery of a document by e-mail – a method habitually used by businessmen, lawyers and civil servants – should be regarded as essentially different from communication by post, fax or telex. That is not to say that clicking on the "send" icon automatically amounts to good service. The e-mail must, of course, be despatched to what is, in fact, the e-mail address of the intended recipient. It must not be rejected by the system. If the sender does not require confirmation of receipt he may not be able to show that receipt has occurred. There may be circumstances where, for instance, there are several e-mail addresses for a number of different divisions of the same company, possibly in different countries, where despatch to a particular e-mail address is not effective service. But in the present case none of those difficulties arise. ...

That e-mail and those that followed it, are plain and straightforward in their terms. They bear none of the hallmarks of "spam". On the contrary they called for serious attention. The e-mail of 5th May was sent with High Importance. It referred to a vessel which Bernuth had in fact chartered by the charterparty mentioned in it. It identified Swinnerton Moore as High Seas' London solicitors, which they were, and referred to an outstanding hire claim which had been the subject of earlier correspondence. It purported to initiate arbitration proceedings by calling for agreement as to an arbitrator. I should be surprised if much junk e-mail purports to do that or to emanate, as later e-mails did, from an LMAA arbitrator.

This decision follows on an earlier post about South Korea issuing criminal indictments by text messaging. It appears that civil and criminal procedure is now making serious overtures to the Internet age. But in the abundance of caution, why not, perhaps use traditional mail as well? Just in case?

Is it not just possible that some spam has all the trappings of formal documentation (i.e., Urgent Email from Nigeria: "If you agree to help me, I will send you by courier the ELECTRONIC CARD KEY of my vault so that you can travel to London and open the vault; You will then remove the money total USD4 million and transfer it to your Bank Account. For your help and assistance, you will keep 10% of the money for your self and keep 90% for me in safe custody until I travel to meet you and invest my share.").

Is it not possible that clerical staff might just ignore these email documents? I'm not a technophobe, but it would seem that the arbitrator and the court should have displayed a little greater sensitivity to the procedural concerns of arbitrating exclusively by email.

"I'll Take a Xingbake Double Espresso to Go"

Interesting story coming out of China about the dispute between Starbucks and Xinbake, which is a major Chinese competitor. "Xin" means star and "bake" is pronounced "bah kuh." So Starbucks sued and a Chinese court ordered Xinbake to change its name because it was engaging in "illegitimate competition." (Hat tip: How Appealing)
I love this tidbit at the end of the story: "Starbucks opened its first cafe in China in 1999 and has since spread nationwide, with 50 stores in the capital Beijing alone. At up to $6 a cup, the company's coffee costs more than the average Chinese worker makes in a day." Coffee wars for that huge segment of the Chinese market that will spend a day's wage on a cup of coffee. Forget about breakfast, lunch, dinner, and rent. Just give me a vanilla latte.

Wednesday, January 18, 2006

New Blog: The International Economic Law and Policy Blog

Joel Trachtman of the Fletcher School and Petros Mavroidis of Columbia Law School have started the International Economc Law and Policy Blog. The opening salvo of posts have touched on topics ranging from the trade in caviar and the protection of endangered species, to the governance of cyberspace, to World Bank conditionality and sovereignty, to the judgeing style of the WTO Appellate Body. A great start to what will surely be a great resource. Welcome to the blogosphere!

R.I.P., Professor Arthur von Mehren

Professor Arthur von Mehren, Story Professor of Law Emeritus at Harvard Law School, passed away yesterday at the age of 83. The Harvard statement on his death is here. Professor von Mehren was one of the pioneers in American legal education in the fields of comparative law, choice of laws, international litigation and international commercial arbitration.

Professor von Mehren's achievements as a scholar need no amplification here. Let me just note that he wrote over 210 publications, including 10 books, over a fifty-year career and taught thousands of HLS students. A Harvard symposium in his honor was held in 2002 and described his remarkable academic career here.

"Judicial Outsourcing?" Big Lumber's Challenge to NAFTA Panels Heads to D.C. Circuit

Big Lumber has filed a brief in the U.S. Court of Appeals for the D.C. Circuit further elaborating its attack on the constitutionality of part of the NAFTA review process (which I described briefly here). Their brief is not yet available online (UPDATE: the brief can be accessed here. Thanks to reader Simon Lester for the pointer). I do have to give their PR guys lots of credit for coining the term "judicial outsourcing" to describe the allocation of certain powers to NAFTA tribunals. I wish I had thought of that. That captures very much the political dimension of their case, although I am not yet sure what I think of their legal arguments.

Ninth Circuit En Banc Dismisses Yahoo! Case

Last week the Ninth Circuit en banc issued an important decision in Yahoo! v. LICRA. In a complicated judgment, it concluded that it does have personal jurisdiction over LICRA and UEJF, but that the combination of votes against personal jurisdiction and ripeness required dismissal of the case without prejudice. It is a complex decision with forty-pages of opinion, so I will give only the briefest of summaries.
The case is one of the more important personal jurisdiction cases involving international parties and transnational contact. LICRA and UEJF sued Yahoo! in French courts for permitting the sale on its auction site of "messages, images and text relating to Nazi objects, relics, insignia, emblems and flags, or which evoke Nazism" and "text, extracts, or quotes from 'Mein Kampf' and the '[Protocols of the Elders of Zion]'" A French court order subjected Yahoo! to a fine of 100,000 Euros per day of delay. Since that time Yahoo! has brought its actions into "substantial compliance" with French law and the fines have not been imposed.
In response to this French court action, Yahoo! filed suit against LICRA and UEJF in federal district court, seeking a declaratory judgment that the interim orders of the French court are not recognizable or enforceable in the United States. The district court held that it had personal jurisdiction over LICRA, and the Ninth Circuit reversed.
At issue in the case was whether LICRA and UEJF, both anti-racism groups, were subject to personal jurisdiction based on their contacts in California. Those contacts were the following: (1) cease and desist letter that LICRA sent to Yahoo!, demanding that Yahoo! alter its behavior in California to conform to what LICRA contended were the commands of French law; (2) service of process of Yahoo! in California; and (3) LICRA obtained two interim orders from the French court directing Yahoo! to take actions in California, on threat of a substantial penalty.
The Court applied the three-prong test for specific jurisdiction to the facts of this case and concluded that the third contact satisfied the requirements of specific jurisdiction. Here is an excerpt:

The first two requirements are that LICRA and UEJF "have '(1) committed an intentional act, [which was] (2) expressly aimed at the forum state [.]' "... It is obvious that both requirements are satisfied. LICRA intentionally filed suit in the French court. Indeed, it had previously signaled its intent to file suit in its April 5 letter to Yahoo!. UEJF intentionally joined LICRA's suit ten days later. Further, LICRA and UEJF's suit was expressly aimed at California. The suit sought, and the French court granted, orders directing Yahoo! to perform significant acts in California. It is of course true that the effect desired by the French court would be felt in France, but that does not change the fact that significant acts were to be performed in California. The servers that support yahoo.com are located in California, and compliance with the French court's orders necessarily would require Yahoo! to make some changes to those servers. Further, to the extent that any financial penalty might be imposed pursuant to the French court's orders, the impact of that penalty would be felt by Yahoo! at its corporate headquarters in California.

The third requirement is that LICRA and UEJF's acts "'caus[e] harm that the defendant knows is likely to be suffered in the forum state.' " This requirement is somewhat problematic, for Yahoo! has not shown or even alleged any specific way in which it has altered its behavior in response to the French court's interim orders. Yahoo! changed its policy with respect to Yahoo.com after the French court's orders were entered, but Yahoo! has consistently maintained that the change was unrelated to the orders....

Yahoo!, however, points to the possibility that a substantial penalty will be assessed under the French court's November 20 interim order. It points in particular to the provision in that order specifying that the potential amount of the penalty increases by 100,000 Francs for every day that Yahoo! is in violation of the court's orders. Yahoo! represents to us that even now, after its change of policy, it is acting in plain violation of the orders. It contends that a declaratory judgment determining the enforceability by an American court of the French court's orders will allow it to determine an appropriate course of conduct with respect to the activities in which it continues to engage. ...

Yahoo! contends that it has a legally protected interest, based on the First Amendment, in continuing its current policy with respect to Nazi memorabilia and Holocaust-related anti-semitic materials. Until that contention is endorsed by the judgment of an American court, it is only a contention. But even if the French court's orders are not enforced against Yahoo!, the very existence of those orders may be thought to cast a shadow on the legality of Yahoo!'s current policy. It is a close question whether LICRA and UEJF are subject to personal jurisdiction in California in this suit. But considering the direct relationship between LICRA and UEJF's contacts with the forum and the substance of the suit brought by Yahoo!, as well as the impact and potential impact of the French court's orders on Yahoo!, we hold that there is personal jurisdiction.

Thus, in an eleven-member en banc panel, there were eight votes for personal jurisdiction and only three votes against. But matters became far more complex on ripeness, which I will not summarize here. Suffice it to say that on ripeness there were five votes for ripeness, three votes against ripeness, and three members of the Court who did not reach the question. In a strange twist, the Court held that because a three-judge plurality concluded that the suit was not ripe, "[w]hen the votes of the three judges who conclude that the suit is unripe are combined with the votes of the three dissenting judges who conclude that there is no personal jurisdiction over LICRA and UEJF, there are six votes to dismiss Yahoo!'s suit." Very unusual and complex result.

The importance of the case is that when Internet companies engage in questionable conduct that arguably comports with our First Amendment freedoms, but is nonetheless a violation of the anti-racism or anti-semitism laws of other countries, Yahoo! opens the door for a declaratory judgment against public interest groups that seek to enforce foreign penalties and fines in the United States. But in the end LICRA won this battle against Yahoo! by forcing it to take greater cognizance of the French requirements that Nazi propoganda not be available for sale on Yahoo! auction sites in France. With the specter of huge fines imposed daily, Yahoo! had little choice but to brings its action into compliance with French law. But going forward, the Ninth Circuit's holding in Yahoo! on personal jurisdiction will give greater leverage to Internet companies to sue in the United States the next time such a conflict occurs.

Tuesday, January 17, 2006

Keeping Tequila Free: Mexico and U.S. Reach (All Important) Tequila Agreement

To the relief of margarita drinkers all over the U.S., the United States and Mexico signed an agreement Tuesday that will allow continued bulk shipments of tequila from Mexico into the United States. Since 2003, Mexico has been threatening to require all tequila from Mexico to be bottled in Mexico, thus threatening U.S. bottling company jobs (and that ever important supply of cheap tequila). The agreement (summarized here) seems to be a complete surrender by Mexico, which has completely given up its tequila plan. Maybe the Spanish version is different?

It Only Took 12 Years! Nigeria and Cameroon Agree to Implement ICJ Decision

Nigeria announced today that it had finally reached an agreement with Cameroon to implement a 2002 ICJ decision demarcating part of the boundary between the two countries.

To put it bluntly, it is about time. The original case was filed in the ICJ in 1994 and the final judgment was issued in 2002. Even after this judgment on the merits, the two countries have been haggling over the interpretation of that judgment for the past four years.

Although the ICJ probably could have moved faster on this case (but I'm not returning to that dead horse today), the final outcome is a reminder of why international tribunals can be useful.
It is also a lesson in their limitations. The ICJ provided a more less neutral mechanism for resolving a very complicated, longstanding territorial dispute. It took a long time, but they got a result.

On the other hand, in the end of the day, the ICJ's judgment still required the joint political cooperation of the governments involved to achieve final implementation. This is not to say the ICJ judgment is meaningless, but it is important to keep in mind that even after the ICJ issues a judgment, the resolution of a dispute still requires lots and lots of diplomatic cooperation and political will.

Welcome "Truth on the Market"

Opinio Juris welcomes "Truth on the Market" to the law prof blogosphere. My friend and colleague Thom Lambert, along with Geoff Manne, Bill Sjostrom, Keith Sharfman, Josh Wright, and one anonymous blogger, will be blogging about "law, business, economics and more." We wish them a successful launch and happy blogging!

Supreme Court Denies Cert. in Holocaust Vatican Bank Case

Still more news today on Holocaust litigation. The U.S. Supreme Court denied certiorari in the Ninth Circuit case of Alperin v. Vatican Bank. The order list is here. The Ninth Circuit ruled earlier this year that the property claims by plaintiffs should not be dismissed under the political question doctrine but that the "war objective claims" should be dismissed. The Alperin case is arguably the most important outstanding Holocaust litigation case.

But more broadly, the Ninth Circuit decision is a complicated one that deserves serious consideration regarding the scope of the political question doctrine under ATS litigation.

Dan Collins at Munger, Tolles & Olson was on the brief for the Vatican Bank. My colleague Lee Boyd of Pepperdine was counsel of record for the plaintiffs. I don't mean to be pushing our book yet again, but Lee Boyd has a chapter in Holocaust Restitution discussing the Alperin case.

Altmann Wins Battle for Klimt Paintings

An Austrian arbitration court has ordered the return of five multi-million dollar paintings by Gustav Klimt to the rightful owner, Maria Altmann. The best coverage is from the L.A. Times, which has interviews of Maria Altmann and her attorney Randol Schoenberg, both of whom reside in Los Angeles. Another report stated that the world-renowned 1907 portrait of Altmann's aunt, Adele Bloch-Bauer, is the "the most important painting that has ever been restituted (in a Nazi art case)".

The Altmann case gained notoriety after the U.S. Supreme Court ruled in Austria v. Altmann that the case could go forward, notwithstanding the government claims of sovereign immunity.

Schoenberg has a chapter in our book Holocaust Restitution, entitled Whose Art is It Anyway? He explains in the chapter how the parties in May 2005 agreed to resolve the dispute through binding arbitration rather than trial. "The agreement calls for each party to choose an arbitrator, with the two arbitrators then selecting a third arbitrator, and this panel of arbitrators will render a decision binding upon the parties. All three arbitrators will be Austrian nationals, and the panel will decide the case under Austrian law." Schoenberg concluded the chapter with the following: "Holocaust-related litigation is incredibly difficult and time consuming, and the prospects of success, even in exceptional cases such as Mrs. Altmann's, are very low. Nevertheless, in cases concerning Nazi-looted artworks, there is a glimmer of hope." Indeed.
UPDATE: Randol Schoenberg has sent me an English translation of the arbitral award, available here.

The Megaphone of Blogging

If you read Larry Solum's thoughtful post on the importance of blogging, you understand why young legal academics are embracing the medium. Among other things, Solum suggests that blogs provide a new method for legal research. "Ask anyone under 25 how they do research. Frankly, I'd be surprised if there were more than a tiny fraction of frank answers that failed to include Google." But this comment is incomplete, for the "Google effect" is far more significant than this.

The best analogy is not that Google provides students a shiny new spade to dig for legal information. The better analogy is that Google provides information providers a giant megaphone to express their ideas. Successful bloggers can have a disproportionate impact through Google that is far greater than is appreciated in the legal academy. As Robert Scoble put it in a recent book interview, "The more you blog, the greater chance you have of being recognized--and listened to. So Google is paying back the blogosphere for adding content to it. It's a virtuous circle."

Let me give you an example. Take a common name, like Michelle, Ann, Lawrence, Joshua, Glenn, Roger, or Andrew. Now ask yourself, who is the most important person in history who has had that first or last name? If you take a minute in your own mind (or are lazy and go to Wikipedia) you quickly come up with a list of truly famous and deserving people like Saint Anne, Queen Anne,
Michelle Pfeiffer, D.H. Lawrence, Joshua (as in the Book of Joshua), John Glenn, Roger Moore, Roger Sherman, Roger Clemens, Saint Andrew, or Prince Andrew.

But if you go to Google and type in Michelle, Ann, Lawrence, Joshua, Glenn, Roger, or Andrew, here is what you find at or near the very top of the search: Michelle Malkin, Ann Coulter, Ann Althouse, Lawrence Lessig, Joshua Michael Marshall, Glenn Reynolds, Roger L. Simon, and Andrew Sullivan. Google searches are based on links, and successful bloggers have far more inbound links than truly historic figures that Google should be noticing. Amazing as it may sound, Google actually thinks Ann Coulter and Ann Althouse are more important than Queen Anne or Saint Anne. Amazing as it may sound, Google actually thinks Lawrence Lessig is more important than D.H. Lawrence. And not, of course, because he is Lawrence Lessig of Stanford Law School, but because he is Lawrence Lessig of the popular Lessig Blog. (Needless to say, legal luminaries named Larry (Larry Tribe, Larry Sager, Larry Friedman, Larry Zelenak, Larry Helfer) don't begin to have the Google impact of Larry Lessig).

Google gives successful law bloggers a giant megaphone for all the digital world to hear. By contrast, to the broader public the medium of the typical law review provides professors the platform of a dandelion from which they can shout "We are here! We are here! We are here! We are here!"

If a law professor has something useful to say, like Lawrence Lessig, blogging provides a remarkable new medium for expressing those ideas.
Or to take an example a little closer to home, opinio juris is a doctrine that dates back centuries. To Google it is a law blog established just over a year ago by a few law professors.

So the "Google effect" of blogging is to provide a new tool for information consumers and a giant megaphone for information providers. Thus, if a particular subject strikes your fancy, say Roper v. Simmons and international law, a search on Westlaw will identify over one hundred articles to read, starting with the most recent. If you go that route, I would suspect you will start with four recent articles in the Harvard Law Review. But if you do the same search on Google, this post from Opinio Juris referencing my article in the UCLA Law Review ranks at or near the very top.
As this example suggests, through blogging authors can highlight their scholarship. It is not coincidental that four of the top eleven law authors on SSRN have law blogs. Sure these authors are very good, but should they rank right up there with Cass Sunstein?

The old saw that no one really reads what law professors write was perhaps once true. Not anymore, provided they have the proper platform. It's not just the message that matters anymore. It is also the medium.

Thanks to Geoffrey Corn

Geoffrey Corn is signing off as a guest blogger today and we at Opinio Juris are very grateful for his posts. He has excelled at providing deep insight on numerous matters pertaining to the laws of war. As a new second-career law professor we welcome you to the club and look forward to reading your articles. Thanks Geoffrey!

Monday, January 16, 2006

Elie Wiesel's "Night" Amazon's Number One Bestseller

The announcement that Oprah Winfrey has selected Elie Wiesel's Night as its book of the month has catapulted it to Amazon's number one bestseller. I am thrilled that Oprah Winfrey has chosen this book, which was one of the most significant literary experiences of my young adulthood.
According to this article in the New York Times, "Winfrey said she plans to travel with Wiesel to Auschwitz next month, and her show will have a high school essay contest on Wiesel's book. Fifty winners will be flown to Chicago, where her show is based, for a taping with the author, Winfrey said."
Kudos to Oprah Winfrey. Her book selection will change lives, with millions introduced to a first-hand account of the horror of the Holocaust.

MLK Jr. and a Just World Order

Last year I wrote a short piece on Martin Luther King Jr. and international justice; I copy the main part of it here:

...But why talk about Dr. King on a blog about international law? King’s voice was not the voice of the international lawyer, but of the pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers.

Quite simply, Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice. This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologoies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to "appreciate the reciprocal": think of how the world would look from the standpoint of the average man or woman living in Vietnam. Towards the end of his speech, he expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a "Just World Order." He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life's roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life's highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: "This is not just." It will look at our alliance with the landed gentry of Latin America and say: "This is not just." The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

A true revolution of values will lay hands on the world order and say of war: "This way of settling differences is not just." This business of burning human beings with napalm, of filling our nation's homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

While full of references to the problems of the day (the Communist threat; whether to seat Red China in the U.N.), Dr. King still gives us a lesson for our day. He argues that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openess to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others. And, at the end of the day, he put more faith in the possibility transformative discourse than in supposed pragmatism of regime change.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t subsumed by international law but encompassed it.

Martin Luther King Day allows us to remember the battles fought in the past: Freedom Marches, lunch counter sit-ins, and facing Bull Conner’s dogs. To a certain extent it allows us Americans to pat ourselves on the back and say “Look how far we’ve come.” But King’s message goes beyond Alabama in the mid-1960’s and is still radical, challenging, and of global relevance today. As an international lawyer, I read his words and think not only about how far we’ve come, but about how far we have to go.

The Military Commission: An Inauspicious beginning for a"Full and Fair " Process

This past week, Military Commission proceedings were "fired up" again in Guantanamo. In two cases, one against Canadian detainee Omar Khadr, the other against Yemeni detainee Ali Hamza Ahmad Sulayman al Bahlul, military defense lawyers confronted the challenge of dealing with a process long ago repudiated by the Uniform Code of Military Justice, and by all accounts distinguished themselves (see here). This move signaled the Bush administration's determination to move forward with the Commission process. It also, however, highlighted why this tribunal has been the subject of widespread criticism.

In what must be considered an inauspicious beginning to a process the government continues to assert is "full and fair", one detainee was initially denied his choice of detailed military defense counsel (see here), while the other detainee was forced to accept representation he did not want (see here). In the case against Khadr, the detailed military defense counsel was forced to essentially state he could not effectively represent his client in order to convince the Presiding Officer to grant his client's request that a much more experienced Marine Corps attorney be detailed to the case. Only after relentless assertions of this position did the Presiding Officer finally relent, but only after subjecting the defense counsel to extensive criticism. In the case of al Bahlul, the Commission rejected his request to represent himself and ordered his detailed military defense counsel to continue to perform in that capacity (which itself raises significant ethical concerns).

This ironically inverse application of the customary standards related to selection of counsel raises serious questions about just how "full and fair" this process can be. It also exposes one of the most significant concerns members of the defense team have noted from the inception of this process - the power of the Commission Presiding Officer. These officers need not be detailed from the military trial judiciary (although to date the officers selected for these duties have been current or retired military judges). In both these cases, unlike courts-martial, it was not a military judge who was vested with the authority to rule on these requests, but the senior member of the Commission, the Presiding Officer (see here). While the duties of the Presiding Officer are similar to that of a military judge, their appointment by the same authority responsible for prosecuting detainees reflects a fundamental difference with the independent military trial judiciary.

Observers familiar with the pre-1951 revision of the U.S. military justice system (see here) might recognize similarities in this procedure. Prior to this date (when the Uniform Code of Military Justice was adopted by Congress), the senior member of a military court ruled on all legal and evidentiary issues. Instead of serving as a military judge, the legal officer was designated as a "law officer", with the limited role of providing advice to the presiding lay members. With the procedural construct of the Military Commission reflecting what might best be described as a "hybrid" version of the old and modern military justice stystems, it seems worth recalling that one of the most significant changes in the military justice system made by Congress more than fifty years ago was the creation of a truly independent trial judiciary, providing an independent military judge vested with authority to make all legal rulings in a court-martial, none of which are subject to voting member "override" as is the case with the Commission.

While confronting a tribunal that lacks the legal and procedural guarantees traditionally associated with the modern military justice system is no doubt challenging enough, a basic inequity in resources is apparently compounding this challenge. The obvious imbalance between government and defense resources was exposed by the officer in charge of the Military Commission defense team (see here), who noted the nearly four to one ratio of prosecutors to defense counsel. While the government defended these numbers, it would certainly seem that a genuine commitment to a "full and fair" process would compel providing for a more robust defense capability. The mere fact that a senior military officer charged with supervising this function would take the unusual step of making his "request" through the media suggests that behind the scenes efforts to reinforce his team have been ineffective. This again reflects a fundamental divergence between the Commission process and our normal military justice practice, where equity between prosecution and defense resources is a cornerstone of legitimacy.

None of this is intended to suggest that the members of the Military Commission are not attempting to perform their duties properly. There should be little doubt that they realize the gravity of their responsibilities, and are attempting to execute those responsibilities to the best of their abilities. The more profound question is whether the procedural construct of this tribunal will disable their ability to provide the "full and fair" adjudication promised by the government. If this past week is an indicator, their challenge is significant.

Martin Luther King and Civil Disobedience

Today the nation celebrates Martin Luther King Jr. I studied Martin Luther King extensively prior to law school and have always admired him greatly. One of the most important legal questions King raised in his struggle for civil rights was the appropriate means to secure just ends. In particular, King was more than willing to defy laws if he deemed them to be unjust. He was sharply criticized for this and defended his tactics in his famous Letter from a Birmingham Jail. Here is an excerpt:

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may won ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there fire two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all."

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distort the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.... Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. Paul Tillich said that sin is separation. Is not segregation an existential expression 'of man's tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state's segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

What is most interesting about King's defense is that he places all laws below a "higher law" of morality. He then defines that higher law based on his theology of separation, and concludes that segregation is a manifestation of separation, and therefore must be unjust. Notably, he does not say what we would typically say today: "That all laws are unjust if they violate constitutional rights." We would subject laws to a constitutional order. He subjects it to a higher moral order. Indeed, King refers to the Constitution only three times in this letter, all in passing.

Nor does King address how you determine what is higher law. I doubt many will be willing to read Paul Tillich, Karl Barth, or Reinhold Niebuhr and subject all laws to their theology. To suggest that unjust laws may be disobeyed if they do not accord with "higher law" places a premium on determining what is the higher law. For example if sanctity of life is a higher law you may well oppose the death penalty as unjust, but if another principle is the higher law you might well defend it.

The third aspect of his letter that is so fascinating is that he openly admits that in defying the law he should be punished. Disobedience and punishment are the vehicle to social change. By going to jail, he hopes to arouse the conscience of the community. Here is King's cycle of justice: (1) unjust laws are disobeyed, (2) punishment is imposed in respect for the law, (3) our consciences are pricked, (4) legislative corrections are proposed, (5) the laws are changed, (6) society is transformed.

Of course, in King's case the conscience of society was pricked and laws were quickly enacted to create a better society. But today many who engage in civil disobedience to protest what they, in good faith, understand to be unjust practices will disobey a law and be subject to punishment. But as they languish in jail, their behavior does not significantly impact our collective conscience. Those who use themselves as "human shields" to protest the Iraq war are an example.

The other aspect of King's tactics is that they are not for everyone. The cycle of justice makes sense for a "prophet" like Martin Luther King. But it is not the way a lawyer, judge, or politician should or would try to create a more just society. We would work within the system, near the end of King's justice cycle, focusing on legislative change or judicial challenge. It is hard to imagine a lower court judge saying, "sentencing guidelines are wrong and unjust and therefore I will disobey them." We all agree that a judge should not do that, just as a judge in Alabama or a politician in San Francisco should not openly defy the law. So we recognize that there is a role in society for some people, sometimes to engage in civil disobedience. But we also recognize that those who are sworn to uphold the Constitution and the laws of this country do not enjoy that privilege. King was right. But King's tactics are not right for everyone.

Sunday, January 15, 2006

Iran to Host Holocaust Conference

Iranian President Mahmoud Ahmadinejad has called for an international conference on the Holocaust. A Iranian Foreign Ministry spokesman said, "Iran's Foreign Ministry has decided to hold a conference on the Holocaust to assess its scale by scientific means and discuss its consequences." The event will be sponsored by Iran and the Organization of the Islamic Conference "in consultation with other countries to pursue this issue." The goal will be to examine scientific evidence supporting the Holocaust.

Given that he has already publicly declared the Holocaust a myth, any guess what conclusions Ahmadinejad will reach at the end of the conference? We can only faintly hope that moderate Muslim states will use this conference as a vehicle to condemn Iran's efforts at Holocaust denial.

UPDATE: Niall Ferguson has an interesting article on the Great War of 2007 that compares the parallels of the 1930s to today. Here is a taste: "The devastating nuclear exchange of August 2007 represented not only the failure of diplomacy, it marked the end of the oil age. Some even said it marked the twilight of the West. Certainly, that was one way of interpreting the subsequent spread of the conflict as Iraq's Shi'ite population overran the remaining American bases in their country and the Chinese threatened to intervene on the side of Teheran. Yet the historian is bound to ask whether or not the true significance of the 2007-2011 war was to vindicate the Bush administration's original principle of pre-emption. For, if that principle had been adhered to in 2006, Iran's nuclear bid might have been thwarted at minimal cost. And the Great Gulf War might never have happened."