Saturday, February 04, 2006

Iranian Nuclear Sabres Rattle

Iran's decision to resume uraniam enrichment is precisely what it threatened before the IAEA Board meeting last week. In a letter dated February 2, 2006, Iran firmly requested that the case not be submitted to the Security Council. It included the threat that "I am afraid to warn that if the interlocutors of Iran want to put pressure on the [IAEA] Board to report the issue to the UN Security Council and this pressure be affective, and the [Security] Council would be involved in any way with the Iranian peaceful nuclear activities, it would be the final blow to the confidence of the Islamic Republic of Iran and will totally destroy it."

The threat was issued with the expectation that the IAEA would back down. It did not. To its credit, the IAEA Board displayed surprising conviction with a vote of 27-3 to refer the matter to the Security Council. (The "yes" votes included two Muslim nations, Egypt and Yemen; the "no" votes were Cuba, Syria, and Venezuela; the five abstensions were Algeria, Belarus, Indonesia, Libya, and South Africa). The full text of the IAEA Resolution referring the matter to the Security Council is available here.

It appears that Nobel Peace Laureate Al Baradei is backing up his lofty Nobel words with tough deeds. Here is what he stated in his Nobel Peace Prize Lecture only a few weeks ago: "[W]e must ensure – absolutely – that no more countries acquire these deadly weapons... Are these goals realistic and within reach? I do believe they are. But then three steps are urgently required. First, keep nuclear and radiological material out of the hands of extremist groups.... Second, tighten control over the operations for producing the nuclear material that could be used in weapons.... Third, accelerate disarmament efforts. "

We now have a nuclear crisis on our hands. But better to have a crisis with Iran than a crisis of confidence within the IAEA.
UPDATE: There is an interesting insight from Hoder who is suggesting that the Iranian people do not have the stomach for this fight and that Ahmadinejad is pushing his agenda in poor, remote villages because they "can't mobilize enough people in Tehran who'll be willing to show any support for this man."

Friday, February 03, 2006

African Embassy Bombing Case Goes Forward

Last week the D.C. District Court ruled that the claims against Sudan for materially supporting the embassy bombings in Tanzania and Kenya may go forward. In Owens v. Sudan, the court ruled that there were sufficient allegations that Sudan materially supported the terrorist attacks to overcome a motion to dismiss. The concise holding is that if you finance terrorism, in a properly pled case plaintiffs can pursue claims to hold you accountable in United States courts.

The decision will be significant for future terrorist cases as it addresses concerns such as the sufficiency of the allegations of material support, the jurisdictional requirements of causation, and joint-tort theories. I think the joint-tort theory is particularly significant. It is not necessary to directly commit the terrorist attacks. A claim of aiding and abetting is sufficient. (No mention in the case about the extraterritorial application of state tort laws discussed here).

Hunton & Williams was on the case for the Government of Sudan. The law firms of Fay & Perles and Karp Frosh, were on the case for the plaintiffs.

"Death to Denmark!"

The flap over cartoons continues to rock the Muslim world. The BBC has great coverage with a dozen articles addressing the topic. The issue is particularly sensitive and reflects deep cultural and religious differences between Western values of freedom of expression and Islamic values of the holiness of the Prophet Muhammad.
Obviously Western media should be more sensitive to depictions that are idolatrous to Muslims. To their credit the American mainstream media has shown great discretion, refraining from reproducing the images. The European press displayed callous indifference to the religious convictions of Muslims, with the Koran widely interpreted as prohibiting images of Allah and Muhammad. (Of course, the Ten Commandments have a somewhat analogous prohibition against using the name of the Lord in vain.) A depiction of Muhammad with a bomb in his turban is offensive at multiple levels. Can you imagine an equally offensive cartoon tolerated in the Western press that played into gross stereotypes of blacks or gays?
But obviously Muslims should avoid violent reactions that will play directly into the prejudices of non-Muslims. Many in the West are astonished and even bemused at the outrage. Cartoons are greeted with chants of "Death to Denmark!" but in many Muslim quarters the murder of innocent civilians is greeted with silence and even celebration? Where are the chants of "Death to Terrorists!" Where's the outrage when President Ahmadinejad calls for the annihilation of Israel and denies that six million Jews were murdered in the Holocaust? The silence of moderate Muslims when radical Islam embarrasses the faith is deafening. Vicious cartoons distort the faith, but so too does radical Islam.
By chance today I will moderate a panel at this conference on Muslim-Christian dialogue regarding peacemaking and conflict resolution. It seems the timing could not be more propitious.

The Next UN Secretary General: Holbrooke Surveys the Field

Kofi Annan will step down as UN Secretary General this December. The campaign season for his replacement is heating up. By tradition of regional rotation, it's Asia's "turn" to supply the Secretary General (though the region is defined rather broadly to include the Middle East). Richard Holbrooke's op-ed in today's Washington Post reviews the potential candidates:

· Surakiart Sathirathai, Thailand's deputy prime minister, has been running openly since last year and has visited dozens of capitals around the world. He has the formal endorsement of the Association of Southeast Asian Nations, a solid base from which to launch a candidacy.

· Ban Ki Moon, South Korea's impressive foreign minister, has excellent relations with both Washington and Beijing. But would China accept a secretary general from a treaty ally of the United States, and a diplomat who is deeply engaged in sensitive six-party talks on North Korea's nuclear programs?

· Jose Ramos-Horta is foreign minister of East Timor -- the newest nation in the world and, until recently, itself a war-torn half-island in the South Pacific administered by the United Nations. Ramos-Horta is a Nobel Peace Prize laureate and is well known internationally, but his country is tiny, with only 800,000 people.

· Jayantha Dhanapala, a respected Sri Lankan, served as U.N. undersecretary general for disarmament and as ambassador to the United States. He has been openly campaigning for over a year, but some question the selection of another U.N. bureaucrat right after Kofi Annan.


Holbrooke notes that other possible candidates include former prime minister Goh Chok Tong of Singapore, Prince Zeid Raed Hussein, the current Jordanian ambassador to the UN, and Kemal Dervis, who is Turkish and the current head of the UN Development Program.

Does the outcome matter?

A weak S-G means a weaker United Nations, and although that may please some die-hard U.N.-haters, the United Nations has been an important part of American foreign policy on many issues since the end of the Cold War. Right now, for example, the Security Council is about to become a major focal point for the Iranian nuclear issue. The secretary general can play an important role on such issues, and it is in the American interest, more often than not, to have a strong secretary general exerting pressure on reluctant or rogue states. The same may not be true of China. The drama coming up, especially between Beijing and Washington, will be interesting to follow, and will tell us a lot about both the future of the United Nations and the long-term intentions of China on the world stage.

Thursday, February 02, 2006

Bolton Scolds Tardy Security Council

I couldn't resist this news item about today's events at the Security Council. Apparently, some Perm Reps believe in the German university "Akademische Viertel" (academic quarter) rule of promptness: so long as you arrive within fifteen minutes of a scheduled meeting, you are on time. US Ambassador John Bolton, perhaps taking the lead from his President who is known for arriving early for meetings, lives by a different, more accurate, clock. Bolton was more than a bit irked to find an empty room when he tried to open a meeting of the Council this morning:

"I brought the gavel down at 10. I was the only one in the room," Bolton said. ..."I believe in discipline. I think daily briefings constitute a form of intellectual discipline. Starting on time is a form of discipline," Bolton told reporters. "I failed today." "I took a list of when they (council members) came in," Bolton said. "We started just before 10:15."

Let's hope this isn't an omen (or metaphor) of things to come for US efforts at UN reform.

The Legitimacy of Western Views of Human Rights: The Barnes Symposium at the University of South Carolina

I will speaking tomorrow at the Barnes Symposium held at the University of South Carolina Law School. The symposium as a whole will discuss the legitimacy of western views of human rights and will have participants from all over the world, both in person and via video conference (a list of speakers is found here). I myself will focus on my little piece of this conversation - the use of international human rights treaties to interpret the U.S. Constitution. If we have any (friendly) readers in the USC community, I would love to meet you during my visit tomorrow.

Brazil and Canada Triumph: U.S. Repeals Anti-Dumping Laws and Scraps Cotton Subsidies

The U.S. Congress last night brought the U.S. in compliance with two WTO decisions. First, it essentially scrapped the U.S. program of subsidies for cotton farmers. The proximate cause of this decision was Brazil's victory last year in the WTO finding that such subsidies violated WTO obligations. The other proximate cause, of course, is the renewed emphasis in Congress on reining in domestic spending.

Second, the U.S. Congress repealed the much-hated Byrd Amendment, which transferred dumping duties on foreign companies to their domestic competitors. Canada in particular has been grousing about this particular law.

As a policy matter, the removal of the Byrd Amendment is a good thing and the removal of subsidies for cotton is a even better. As a legal matter, of course, it demonstrates that yes, the U.S. does sometimes comply with international tribunal decisions, as long as there is political will to do so.

Case of the Month: United States v. Clark

My vote for the most important international law case in January is the Ninth Circuit's decision in United States v. Clark. The case represents a rare and important instance of a court attempting to grapple with the scope of the Foreign Commerce Clause.

Michael Clark was convicted of traveling to Cambodia to engage in commercial sex with a minor in violation of federal law. The relevant statute, 18 U.S.C. § 2423(c), provides that "... Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both."

Clark first argued that the statute violated international law principles of prescriptive jurisdiction. The Ninth Circuit recognized the presumption against extraterritoriality, but concluded that this statute is explicit as to its application outside the United States. Moreover, the statute complied with international law principles in that it applied to U.S. nationals, which clearly is recognized under the nationality principle. Although not addressed in the case, an open question is whether the same would be true if Clark were a permanent resident rather than a U.S. citizen.

More significant, Clark argued that Congress exceeded its power under the Foreign Commerce Clause in enacting § 2423(c). The statute is problematic under the Foreign Commerce Clause in that it regulates "illicit sexual conduct," which embraces both non-commercial and commercial sex with minors. The Court offered an extensive analysis of the Interstate Commerce Clause, the Indian Commerce Clause, and the Foreign Commerce Clause to determine the scope of congressional authority to regulate foreign commercial sexual acts.

The Ninth Circuit distinguished Interstate Commerce jurisprudence and focused on the sweeping powers granted to Congress to regulate foreign commerce and the absence of traditional federalism concerns under this Clause. "Born largely from a desire for uniform rules governing commercial relations with foreign countries, the Supreme Court has read the Foreign Commerce Clause as granting Congress sweeping powers.... The Court has been unwavering in reading Congress's power over foreign commerce broadly.... There is no counterpart to Lopez or Morrison in the foreign commerce realm that would signal a retreat from the Court's expansive reading of the Foreign Commerce Clause." Applied to Clark's conduct, the Ninth Circuit concluded that "[t]raveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which Clark pled guilty.... Congress did not exceed its power 'to regulate Commerce with foreign Nations' ... in criminalizing commercial sex acts with minors committed by U.S. citizens abroad."

In dissent, Judge Ferguson argued that the conduct of Clark did not constitute commerce with foreign nations and therefore was beyond the scope of congressional regulation. "[A]n act of paid sex with a minor that takes place overseas is not an act of commerce with other nations. Under the interpretation of the majority, the purchase of a lunch in France by an American citizen who traveled there by airplane would constitute a constitutional act of engaging in foreign commerce."

It is remarkable how little attention is paid to the Foreign Commerce Clause in constitutional Commerce Clause analysis. Clark offers a useful perspective on the scope of congressional authority to regulate commercial and non-commercial sexual conduct that occurs abroad. The case was relatively easy because Clark was a U.S. citizen who paid for sex with a minor in a foreign country. But the statute was not limited to commercial sex, regulating any illicit sex with a minor in a foreign country that would be a violation of U.S. law had it occurred within the United States. The broadest application of that statute could raise interesting issues about the authority of Congress to regulate non-commercial foreign acts pursuant to the Foreign Commerce Clause.

It is simply astonishing that in 2006 the Ninth Circuit can begin a case by stating "we are confronted with a question of first impression regarding the scope of Congress's power under the Foreign Commerce Clause." Clark is well worth a close read by any scholar interested in that question.

Wednesday, February 01, 2006

UN Watch: New and Improved Website and Blog

My friends at UN Watch have relaunched a completely revamped and upgraded website. It is a great resource for information about NGO activities at the UN human rights organs and UN democratic reform efforts more generally. UN Watch Executive Director Hillel Neuer has even started a blog section. (Click here for his comments on MLK JR day.)

If you want to see Hillel in action against the Zimbabwean ambassador to the UN, check out this clip from CNN's Diplomatic License (a great news program which, sadly, the CNN broadcast in my area does not carry.)

The FBI Has a File on You, So Now What?

If the FBI had a file on you, what would you do? Prominent international criminal law professor Cherif Bassiouni faced precisely such a dilemma. So what did Bassiouni do? Bassiouni, who teaches at Depaul School of Law and is well known in ICC circles, requested a copy of the files, found errors in the 50-page report, and demanded that they be corrected. When the FBI refused, he made a federal case out of it and took it all the way to the Seventh Circuit. The FBI admitted that Bassiouni was not a member of a terrorist organization, but refused to reveal why it was keeping a file on him, stating that that information was classified.

Last week, the Seventh Circuit in Bassiouni v. FBI, ruled that no corrections were needed. Here is an excerpt:
The FBI notes its ongoing investigations into the threats posed by terrorist groups, specifically those originating in the Middle East.... Because of the nature of these investigative activities, and because of the breadth of Mr. Bassiouni's contacts with the Middle East, the FBI anticipates that it will continue to receive information about Mr. Bassiouni. ... The Bureau's file on Mr. Bassiouni will provide context for evaluating that new information.... We believe that the purposes identified by the Bureau fall within "authorized law enforcement activity" conducted by the FBI. We note ... that the realm of national security belongs to the executive branch, and we owe considerable deference to that branch's assessment in matters of national security. Furthermore, although the Privacy Act certainly does not authorize collection and maintenance of information of private citizens on the "off-hand" chance that such information may someday be useful, it does not require law enforcement agencies to purge, on a continuous basis, properly collected information with respect to individuals that the agency has good reason to believe may be relevant on a continuing basis in the fulfillment of the agency's statutory responsibilities.
It is a short opinion, and worth a read. Sounds like a case of six degrees of separation.

SOTU: "Freedom Is On The March"

The key foreign relations component of President Bush's State of the Union speech last night was the global march of democracy. It is now beyond dispute that this issue is the key to his foreign relations agenda for the second term. As he put it, "Every step toward freedom in the world makes our country safer, and so we will act boldly in freedom’s cause."

Two sections in particular are worthy of note. First, is the historical progress of democracy in recent decades:
Far from being a hopeless dream, the advance of freedom is the great story of our time. In 1945, there were about two dozen lonely democracies on Earth. Today, there are 122. And we are writing a new chapter in the story of self-government – with women lining up to vote in Afghanistan … and millions of Iraqis marking their liberty with purple ink … and men and women from Lebanon to Egypt debating the rights of individuals and the necessity of freedom. At the start of 2006, more than half the people of our world live in democratic nations.
The other related to the messy state of affairs of the movement toward democracy in the Middle East:
The United States of America supports democratic reform across the broader Middle East. ... The great people of Egypt have voted in a multi-party presidential election – and now their government should open paths of peaceful opposition that will reduce the appeal of radicalism. The Palestinian people have voted in elections – now the leaders of Hamas must recognize Israel, disarm, reject terrorism, and work for lasting peace. Saudi Arabia has taken the first steps of reform – now it can offer its people a better future by pressing forward with those efforts. Democracies in the Middle East will not look like our own, because they will reflect the traditions of their own citizens. Yet liberty is the future of every nation in the Middle East, because liberty is the right and hope of all humanity. The same is true of Iran... [O]ur Nation hopes one day to be the closest of friends with a free and democratic Iran.
This portion of the speech is particularly revealing. Bush is clearly willing to take serious short-term risks in the Middle East in the hopes of long-term democratic reform.

There was one aspect of the speech that caused a definite disconnect for me. He clearly expressed a willingness to contextualize the spread of democracy in the Middle East, for democracy there must "reflect the traditions of their own citizens." But then he took the unusual step of sharply criticizing radical Islam. He stated that "No one can deny the success of freedom, but some men rage and fight against it. And one of the main sources of reaction and opposition is radical Islam – the perversion by a few of a noble faith into an ideology of terror and death.... They seek to impose a heartless system of totalitarian control throughout the Middle East, and arm themselves with weapons of mass murder."

The same disconnect was evident in his discussion of Iran. Bush tried to speak directly to the people of Iran, over the heads of the Iranian leaders, without pausing to recognize that it was an election that elevated the madman Mahmoud Ahmadinejad to the position of President of Iran.

Of course, what we may see in the Middle East is a heartless system of democratic control, with elected leaders espousing radical Islam and arming themselves to the teeth with weapons of mass murder. The Arab street may yearn for freedom, but we may not warmly greet freedom's manifestation there. President Bush is trusting that the end result will be worth the risk.

Tuesday, January 31, 2006

One Final Alito Post (Really)

As Roger noted a couple of weeks ago, my colleague Nora Demleitner testified on behalf of newly-confirmed Justice Samuel Alito during his confirmation hearings. Nora, a criminal and immigration law expert and a former Alito clerk, has suggested that Alito will be quite progressive on certain immigration law-related issues. Here are some of her further thoughts on Alito's decision in the Fatin case, which involved a political asylum claim based on fear of gender-based persecution. Her analysis provides a bit more insight into Justice Alito's thinking about immigration but also on treaty interpretation. It will be interesting to see how this plays out in the next few years.

Why has the Fatin case featured so little in the discussion?

One reason is that it fits poorly into the ideological picture painted of Judge Alito. This is a very progressive opinion on gender-based asylum. In whose interest would it be to discuss it??? Republicans have barely used the case since it wouldn’t play too well with their base, and Democrats have narrowly focused on its holding rather than the overall framework it develops. Ultimately, the panel opinion denied Ms. Fatin her asylum claim since she couldn’t make out a case under the framework Judge Alito developed. In written questions to the Judge, Senator Durbin focused particularly on that point, without acknowledging any of the rationale on which the decision is based.

What did the Fatin case do?

Ms. Fatin was an Iranian asylum-seeker who based her asylum claim, among others, on the argument that she holds Western feminist thoughts that would be unpalatable to Ayatollah Khomeini’s regime. Ms. Fatin claimed asylum based on her political opinion and her membership in a social group. The latter phrase was never defined in the Refugee Convention, and Congress didn’t define it either when it enacted the Refugee Convention into the INA.
Based on BIA decisions, Judge Alito outlined different membership groups based on which Ms. Fatin could possibly claim asylum. He recognized gender itself as a social group. If gender were a social group, it would no longer be necessary to add it as a distinct asylum ground, as many commentators have demanded. However, in most cases women aren’t persecuted solely because they are women. Usually they share some other characteristic, e.g., membership in a minority religion or ethnic group.

Ms. Fatin could not show that the Khomeini government would persecute her based on her gender alone. In fact, she claimed to belong to a narrower group: "‘Iranian women who refuse to conform to the government’s gender-specific laws and social norms.’" The problem with the weak lower court record in this case was that Ms. Fatin had never indicated that she would actually refuse to conform to such laws. Therefore, Judge Alito developed a third membership group: "Iranian women who find their country’s gender-specific laws offensive and do not wish to comply with them." He found there to be an insufficient showing of persecution as Ms. Fatin hadn’t indicated that compliance with gender-specific laws was so abhorrent to her that it could be called persecution.

Some commentators have argued that Judge Alito set the bar too high, that he would never require such a showing in cases of religious persecution. While that may be true, the issue may be with the category - social group -- and the implicit assumptions about it. Judge Alito’s opinion, published in 1993, long before Kasinga, was surprisingly liberal and progressive. It was written by a judge who tried to make the best he could of the lower court record which didn’t give him much to work with. Maybe you can call that judicial activism - but it’s not the type of activism liberals (including myself) usually complain about.

Also note that Judge Alito got a Nixon appointee to sign on to his opinion as well as one of the most respected and thoughtful district court judges in the country, Judge Pollack. One wonders what that may mean for his coalition building on the Court.

It's Official: Antarctica Is (Not) a Foreign Country

If you earn income on a research expedition in Antarctica, can you claim a tax exemption for foreign earned income? The tax regulations allow an exclusion from gross income for any foreign earned income, but the latter term is defined as residency for a qualified period in a "foreign country."

The United States Tax Court ruled this week in Arnett v. United States that Antarctica is not a foreign country and therefore income earned there is fully taxable. "The term "foreign country" when used in a geographical sense includes any territory under the sovereignty of a government other than that of the United States.... As Antarctica is not a foreign country for purposes of the Code, we conclude that petitioner is not entitled to exclude the wage income he earned in Antarctica."

But wait! In 1993 the Supreme Court ruled in Smith v. United States that Antarctica is a foreign country for purposes of the Foreign Tort Claims Act. It seems the FTCA precludes tort claims against the United States if the claim arises in a foreign country. In Smith the spouse of a construction worker sued the United States for wrongful death arising out of a project with the National Science Foundation. The Supreme Court in Smith held "that the FTCA's waiver of sovereign immunity does not apply to tort claims arising in Antarctica."

No matter, the Tax Court in Arnett distinguished Smith by noting that that holding applied solely to cases arising under the FTCA.

So I guess the rule is fairly clear: Antarctica is a foreign country if you are suing the United States, but is not a foreign country if the United States is suing you.

Stein on Stein on Supporting Our Troops

Joel Stein has a piece in the L.A. Times this week entitled "Warriors and Wusses" that takes to task anyone who supports our troops in Iraq. Here is an excerpt: "I'm not for the war. And being against the war and saying you support the troops is one of the wussiest positions the pacifists have ever taken — and they're wussy by definition.... [B]laming the president is a little too easy. The truth is that people who pull triggers are ultimately responsible, whether they're following orders or not.... I'm not advocating that we spit on returning veterans like they did after the Vietnam War, but we shouldn't be celebrating people for doing something we don't think was a good idea. All I'm asking is that we give our returning soldiers what they need: hospitals, pensions, mental health and a safe, immediate return. But, please, no parades."

Ben Stein has responded with this piece in the American Spectator entitled "Saints in Armor." Here is an excerpt: "The most heroic, ethically courageous, morally resolute men and women in the world today are the Americans, British, and other forces fighting in Iraq and Afghanistan. They are fighting the most evil men and women currently on the world scene.... The men and women who wear the uniform fought, bled, and died to rid the world of the most dangerous man on the planet in the most flammable place on the planet.... Do I support men and women who are fighting Nazis who call themselves insurgents or Islamic militants? ... I support them, pray for them, am humbled just to be on the same planet with them."

It seems Joel Stein and Ben Stein represent opposite extremes of possible attitudes about the war in Iraq and support for our troops fighting there. I would be curious what our readers' perspectives are. Scroll down and vote.







When It Comes to the War in Iraq and Supporting Our Troops:
I'm With Joel Stein: Oppose The War and Tolerate Our Troops
I'm With Neither: Oppose The War but Support Our Troops
I'm With Ben Stein: Support The War and Support Our Troops




Free polls from Pollhost.com

Monday, January 30, 2006

Treaties, Private Rights of Action, and Comity: An Internationalist Critique

The Supreme Court is poised to decide one of the most important cases involving the enforceability of treaties in the last few decades (indeed, maybe the last century). In Sanchez-Llamas v. Oregon, the Supreme Court will consider whether the Vienna Convention on Consular Relations gives such aliens the private rights of action as well as the remedy of suppression for any evidence gathered against them in violation of their treaty rights.

Professor Paul Stephan of UVA Law, joined by eight other law professors (including me), has filed an amicus brief in support of the respondent state governments. I can't really do the arguments justice here. Suffice to say they offer a unique and often overlooked point of view. When a court aggressively interprets treaties to incorporate international court judgments and to create wide-ranging domestic rights, the court may actualy be discouraging U.S. participation in treaty systems and in international dispute resolution.

The brief has three main arguments, which I paraphrase below:

(1) The VCCR does not create a private right of action. There is no evidence that the drafters of the treaty intended for the treaty to create a private right of action, and the President's interpretation warrants substantial deference. Most importantly, the Court should avoid finding a private right of action in a treaty unless it is plainly expressed in the text of the treaty, especially since overbroad interpretations of treaties will discourage future U.S. participation in treaty regimes.

(2) Neither comity nor a policy of uniform treaty interpretation compels this Court to regard the Vienna Convention as creating a private right of enforcement. The International Court of Justice, the only tribunal that has reached such a conclusion, is not a national court but an international agency with clearly delimited authority. It lacks the characteristics of a domestic agency that invite judicial deference.

(3) Finally, a decision that the Vienna Convention authorizes private enforcement will disrupt rather than promote uniform treaty interpretation, as no other state has reached such a conclusion.

Avian Flu and Traveling Greenbacks

Ever wonder how disease spreads? Apparently not unlike the way currency travels. As reported here and here, scientists are modeling the anticipated spread of the Avian Flu based on how currency changes hands. On this website you can track the movement of money in your pocket. For example, this particular dollar has travelled 4,191 Miles in 3 Yrs, 12 Days, 17 Hrs, 25 Mins at an average of 3.8 Miles per day.

As noted in this AP story, "By analyzing the movement of money - and human travel - over different distances, the scientists found that the money followed a predictable pattern. The method could be used to create more realistic disease models that track the spread of germs and perhaps prevent outbreaks." As Conglomerate put it, "Somehow, I feel the need to go wash my hands."

The Hamas Party Platform

There is substantial commentary on the Internet and in mainstream media that is expressing cautious optimism about Hamas' victory in Palestine. The essence of these sentiments is that Hamas in power will not be the same as Hamas in opposition. I hope they are right.

Before expressing optimism about what might be, let's look at what is. As the New York Times rightly suggests this weekend, the Hamas party platform, articulated in the 1988 Hamas Charter, provides a useful prism to understand the mentality of Hamas (a.k.a. The Islamic Resistance Movement). Just read the Hamas Charter and it will leave you utterly depressed about the prospects for Middle East peace.

Here are some of the lowpoints:

  • Hamas is an arm of the Muslim Brotherhood (Art. 2);
  • Hamas' goal is Jihad and the death of Jews (Art. 7);
  • Jihad is the path of Hamas, and death for Allah its most sublime belief (Art. 8);
  • The land of Palestine is an Islamic inheritance (Art. 11);
  • All Muslims are duty-bound to commit Jihad against Israel (Art. 12);
  • Peace is not an option (Art. 13);
  • Muslims everywhere are duty-bound to liberate Palestine (Art. 14);
  • Muslims must study the enemy, looking for weak spots (Art. 16);
  • Western culture is a Zionist plot to distance women from Islam (Art. 17)
  • Women must train their children to become Jihad fighters (Art. 18);
  • Enemies rule the world through intermediaries such as the United Nations (Art. 22);
  • The PLO is too secular (Art. 27);
  • All Arab states must support Jihad (Art. 28);
  • All Muslim leaders must support Jihad (Art. 30);
  • Hamas cares about human rights and religious toleration, provided all other religions live in the shadow of Islam (Art. 31);
  • Peace accords are treacherous schemes of Zionists (Art. 32);
  • Jihad will not end until liberation is complete (Art. 33); and
  • Palestine is the navel of the earth and Jihad is our answer to the Christian Crusades (Art. 34).
Excerpts of these articles are below:

Art. 2 The Link Between Hamas and the Association of Muslim Brothers

The Islamic Resistance Movement is one of the wings of the Muslim Brothers in Palestine. The Muslim Brotherhood Movement is a world organization, the largest Islamic Movement in the modern era. It is characterized by a profound understanding, by precise notions and by a complete comprehensiveness of all concepts of Islam in all domains of life: views and beliefs, politics and economics, education and society, jurisprudence and rule, indoctrination and teaching, the arts and publications, the hidden and the evident, and all the other domains of life.

Art. 7. The Universality of Hamas

Hamas is one of the links in the Chain of Jihad in the confrontation with the Zionist invasion.... But even if the links have become distant from each other, and even if the obstacles erected by those who revolve in the Zionist orbit, aiming at obstructing the road before the Jihad fighters, have rendered the pursuance of Jihad impossible; nevertheless, the Hamas has been looking forward to implement Allah's promise whatever time it might take. The prophet, prayer and peace be upon him, said: "The time will not come until Muslims will fight the Jews (and kill them); until the Jews hide behind rocks and trees, which will cry: O Muslim! there is a Jew hiding behind me, come on and kill him!"

Art. 8. The Slogan of the Hamas

Allah is its goal, the Prophet its model, the Qur'an its Constitution, Jihad its path and death for the case of Allah its most sublime belief.

Art. 11. ... Palestine is an Islamic Waqf

The Islamic Resistance Movement believes that the land of Palestine has been an Islamic Waqf [inheritance] throughout the generations and until the Day of Resurrection, no one can renounce it or part of it, or abandon it or part of it....

Art. 12. Hamas in Palestine: Its View on Homeland and Nationalism

Hamas regards Nationalism ... as part and parcel of the religious faith. Nothing is loftier or deeper in Nationalism than waging Jihad against the enemy and confronting him when he sets foot on the land of the Muslims. And this becomes an individual duty binding on every Muslim man and woman; a woman must go out and fight the enemy even without her husband's authorization, and a slave without his masters' permission. This [principle] does not exist under any other regime, and it is a truth not to be questioned....

Art. 13. Peaceful Solutions...

[Peace] initiatives, the so-called peaceful solutions, and the international conferences to resolve the Palestinian problem, are all contrary to the beliefs of the Islamic Resistance Movement. For renouncing any part of Palestine means renouncing part of the religion... From time to time a clamoring is voiced, to hold an International Conference in search for a solution to the problem.... Those conferences are no more than a means to appoint the nonbelievers as arbitrators in the lands of Islam. Since when did the Unbelievers do justice to the Believers?... There is no solution to the Palestinian problem except by Jihad....

Art. 14. The Three Circles

...Palestine is an Islamic land where the First Qibla and the third holiest site are located. That is also the place whence the Prophet ... ascended to heavens... In consequence of this state of affairs, the liberation of that land is an individual duty binding on all Muslims everywhere.

Art. 16. ... Jihad for ... Palestine is an Individual Obligation [cont'd]

... It is ... necessary to study conscientiously the enemy and its material and human potential; to detect its weak and strong spots, and to recognize the powers that support it and stand by it. ...

Art. 17. The Role of Muslim Women

... The enemies ... realize that if they can guide and educate [the Muslim women] in a way that would distance them from Islam, they would have won that war. Therefore, you can see them making consistent efforts [in that direction] by way of publicity and movies, curricula of education and culture, using as their intermediaries their craftsmen who are part of the various Zionist Organizations which take on all sorts of names and shapes such as: the Freemasons, Rotary Clubs, gangs of spies and the like. All of them are nests of saboteurs and sabotage. Those Zionist organizations control vast material resources, which enable them to fulfill their mission amidst societies, with a view of implementing Zionist goals and sowing the concepts that can be of use to the enemy. Those organizations operate [in a situation] where Islam is absent from the arena and alienated from its people. Thus, the Muslims must fulfill their duty in confronting the schemes of those saboteurs. When Islam will retake possession of [the means to] guide the life [of the Muslims], it will wipe out those organizations which are the enemy of humanity and Islam.

Art. 18. The Role of Muslim Women [cont'd]

The women in the house and the family of Jihad fighters, whether they are mothers or sisters, carry out the most important duty of caring for the home and raising the children upon the moral concepts and values which derive from Islam; and of educating their sons to observe the religious injunctions in preparation for the duty of Jihad awaiting them.

Art. 22. The Powers Which Support the Enemy

The enemies have been scheming for a long time, and they have consolidated their schemes, in order to achieve what they have achieved. They took advantage of key elements in unfolding events, and accumulated a huge and influential material wealth which they put to the service of implementing their dream.... They collected material gains and took control of many sources of wealth. They obtained the Balfour Declaration and established the League of Nations in order to rule the world by means of that organization.... They inspired the establishment of the United Nations and the Security Council to replace the League of Nations, in order to rule the world by their intermediary.

Art. 27. The Palestinian Liberation Organization

... [T]he PLO has adopted the idea of a Secular State, and so we think of it. Secular thought is diametrically opposed to religious thought. Thought is the basis for positions, for modes of conduct and for resolutions. Therefore, in spite of our appreciation for the PLO ... we cannot substitute it for the Islamic nature of Palestine by adopting secular thought.... When the PLO adopts Islam as the guideline for life, then we shall become its soldiers, the fuel of its fire which will burn the enemies....

Art. 28. The Palestinian Liberation Organization [cont'd]

... The Arab states surrounding Israel are required to open their borders to the Jihad fighters, the sons of the Arab and Islamic peoples, to enable them to play their role and to join their efforts to those of their brothers among the Muslim Brothers in Palestine. The other Arab and Islamic states are required, at the very least, to facilitate the movement of the Jihad fighters from and to them....

Art. 30. National and Religious Associations...

Men of letters, members of the intelligentsia, media people, preachers, teachers and educators and all different sectors in the Arab and Islamic world, are all called upon to play their role and to carry out their duty in view of the wickedness of the Zionist invasion... Jihad means not only carrying arms and denigrating the enemies. Uttering positive words, writing good articles and useful books, and lending support and assistance, all that too is Jihad

Art. 31. The Members of Other Religions...

Hamas is a humane movement, which cares for human rights and is committed to the tolerance inherent in Islam as regards attitudes towards other religions. It is only hostile to those who are hostile towards it, or stand in its way in order to disturb its moves or to frustrate its efforts. Under the shadow of Islam it is possible for the members of the three religions: Islam, Christianity and Judaism to coexist in safety and security. Safety and security can only prevail under the shadow of Islam...

Art. 32. The Attempts to Isolate the Palestinian People

World Zionism and Imperialist forces have been attempting, with smart moves and considered planning, to push the Arab countries, one after another, out of the circle of conflict with Zionism, in order, ultimately, to isolate the Palestinian People. Egypt has already been cast out of the conflict, to a very great extent through the treacherous Camp David Accords, and she has been trying to drag other countries into similar agreements in order to push them out of the circle of conflict. Hamas is calling upon the Arab and Islamic peoples to act seriously and tirelessly in order to frustrate that dreadful scheme and to make the masses aware of the danger of coping out of the circle of struggle with Zionism. Today it is Palestine and tomorrow it may be another country or other countries. For Zionist scheming has no end, and after Palestine they will covet expansion from the Nile to the Euphrates. Only when they have completed digesting the area on which they will have laid their hand, they will look forward to more expansion, etc. Their scheme has been laid out in the Protocols of the Elders of Zion...

Art. 33. The Attempts to Isolate the Palestinian People [cont'd]

... [I]n accordance with Allah's will, its supporters and partisans who extend assistance to it and provide it with reinforcement after reinforcement, until the Decree of Allah is fulfilled, the ranks are over-swollen, Jihad fighters join other Jihad fighters, and all this accumulation sets out from everywhere in the Islamic world, obeying the call of duty, and intoning "Come on, join Jihad!" This call will tear apart the clouds in the skies and it will continue to ring until liberation is completed, the invaders are vanquished and Allah's victory sets in.

Art. 34. Confronting Aggressors Throughout History

Palestine is the navel of earth, the convergence of continents, the object of greed for the greedy, since the dawn of history.... Multitudes of Crusades descended on it, carrying their faith with them and waving their Cross.... This is the only way to liberation, there is no doubt in the testimony of history. That is one of the rules of the universe and one of the laws of existence. Only iron can blunt iron, only the true faith of Islam can vanquish their false and falsified faith.


KAFTA: The Next Big Free Trade Agreement

The Washington Post reports that the U.S. and South Korea will likely announce the opening of talks to sign a comprehensive free trade agreement. For the U.S, such an agreement would represent the most economically significant free trade agreement since the implementation of NAFTA in 1994.

As Roger has noted, the U.S. free trade strategy under President Bush has been to negotiate bilateral free-trade agreements with the most important U.S. trading partners (Singapore, Australia, Chile, Central America, etc). From a free trade perspective, this is better than nothing, but many trade scholars prefer worldwide free trade schemes to these regional or bilateral pacts.

One interesting question for the U.S. and South Korea is whether the two parties will include a dispute resolution system as aggressive and comprehensive as NAFTA (so aggressive that it has sparked this lawsuit challenging its constitutionality). That seems unlikely, largely because it seems unnecessary, but something to keep an eye on.

Sunday, January 29, 2006

Jack Goldsmith at OLC

Having personally known and admired Jack Goldsmith for years, I always suspected that there was more than meets the eye in his very short-lived tenure at the Office of Legal Counsel. We now have one public version of what transpired with Goldsmith at OLC in a Newsweek article entitled "Palace Revolt." The story appears to be based almost totally on anonymous sources and key players--including John Ashcroft, David Addington, Jack Goldsmith, James Comey, Daniel Levin, and Patrick Philbin--all refused to comment. So it is difficult to know how accurate it really is. But it is worth reading the whole thing. It certainly puts Goldsmith in a favorable light. Hat tip Volokh.