JURIST - Forum

Arizona Legalizes Racial Profiling

2010-04-27T15:56:00.005-04:00

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says that Arizona's new immigration legislation - requiring law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers - demeans us all by effectively legalizing racial profiling...

The conservative “states’ rights” mantra sweeping our country has led to one of the most egregious wrongs in recent U.S. history. New legislation in Arizona requires law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers. What constitutes “reasonable suspicion”? When asked what an undocumented person looks like, Arizona Governor Jan Brewer, who signed SB 1070 into law last week, said, “I don’t know what an undocumented person looks like.” The bill does not prohibit police from relying on race or ethnicity in deciding who to stop. It is unlikely that officers will detain Irish or German immigrants to check their documents. This law unconstitutionally criminalizes “walking while brown” in Arizona.

Former Arizona attorney general Grant Woods explained to Brewer that SB 1070 would vest too much discretion in the state police and lead to racial profiling and expensive legal fees for the state. But the governor evidently succumbed to racist pressure as she faces a reelection campaign. Woods said, “[Brewer] really felt that the majority of Arizonans fall on the side of, ‘Let’s solve the problem and not worry about the Constitution.’” The polls Brewer apparently relied on, however, employed questionable methodology and were conducted before heavy media coverage of the controversial legislation. No Democrats and all but one Republican Arizona legislator voted for SB 1070.

Undocumented immigrants in Arizona now face six months in jail and a $500 fine for the first offense – misdemeanor trespass – and an additional $1,000 fine for the second offense, which becomes a felony.

By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders.

SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.

The bill also makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver impedes the normal flow of traffic, albeit briefly. How many New York taxi drivers impede the flow of traffic when they pick up fares? The law also criminalizes the solicitation of work by an undocumented immigrant in a public place, who gestures or nods to a would-be employer passing by. This part of the legislation is also unconstitutional as courts have held that the solicitation of work is protected speech under the First Amendment.

The new law effectively compels Arizona police to make immigration enforcement their top priority. Indeed several law enforcement groups oppose SB 1070. The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported. The Arizona Association of Chiefs of Police also criticized the legislation, saying it will “negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner;” the group believes the immigration issue is best addressed at the federal level.

Many civil rights and faith-based organizations also oppose SB 1070.
The Mexican American Legal Defense & Educational Fund (MALDEF) called the law “tantamount to a declaration of secession.” The National Coalition of Latino Clergy and Christian Leaders Legal Defense Fund - which represents 30,000 evangelical churches nationwide - as well as MALDEF, the National Day Laborer Organizing Network (NDLON), and the American Civil Liberties Union (ACLU), are preparing federal lawsuits challenging the constitutionality of SB 1070.

Cardinal Roger M. Mahony of Los Angeles called the ability of officials to demand documents akin to “Nazism.” Former Arizona Senate majority leader Alfredo Gutierrez said, “This is the most oppressive piece of legislation since the Japanese internment camp act” during World War II. Representative Raul M. Grijalva (Dem.-AZ) called for a convention boycott of Arizona. The American Immigration Lawyers Association (AILA) complied. AILA is moving its fall 2010 conference, scheduled for Arizona, to another state.

Even though SB 1070 will not take effect for at least 90 days, undocumented immigrants in Arizona are terrorized by the new law. A man in Mesa, Arizona looked around nervously as he stood on a street corner waiting for work. “We shop in their stores, we clean their yards, but they want us out and the police will be on us,” Eric Ramirez told the New York Times.

Ironically, expelling unauthorized immigrants from Arizona would be costly. The Perryman Group calculated that Arizona would lose $26.4 billion in economic activity, $11.7 billion in gross state product, and approximately 140,324 jobs if all undocumented people were removed from the state.

“This bill does nothing to address human smuggling, the drug cartels, the arms smuggling,” according to Democratic Senator Rebecca Rios.

“And, yes, I believe it will create somewhat of a police state,” she added. “Police in Arizona already treat migrants worse than animals,” said Francisco Loureiro, an immigration activist who runs a shelter in Nogales, Mexico. “There is already a hunt for migrants, and now it will be open season under the cover of a law.”

SB 1070 is the latest, albeit one of the worst, racist attacks on undocumented immigrants. The federal program called 287(g) allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities. But a report released earlier this month by the Department of Homeland Security Office of Inspector General found a lack of oversight and training without adequate safeguards against racial profiling.

We can expect SB 1070 to be replicated around the country as the ugly wave of immigrant-bashing continues. Lawmakers from four other states have sought advice from Michael Hethmon, general counsel for the Immigration Reform Law Institute, who helped draft the Arizona law.

“SB 1070 is tearing our state into two,” said Phoenix Mayor Phil Gordon, who called the bill “bitter, small-minded and full of hate.”

He thinks “it humiliates us in the eyes of America and threatens our economic recovery.” More than 50,000 people signed petitions opposing SB 1070 and 2,500 students from high schools across Phoenix walked out of school and marched to the state Capitol to protest the bill before it passed. On Sunday, about 3,500 people gathered at the Capitol, chanting, “Yes we can,” “We have rights,” and “We are human.”

President Obama criticized SB 1070 as “misguided,” saying it will “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact federal immigration reform.

But Isabel Garcia, co-chair of the Coalition of Human Rights in Tucson, told Democracy Now! that there have been more deportations under the Obama administration than in any other administration. “This administration continues to follow the flawed concept that migration is somehow a law enforcement or national security issue,” she noted.

“And it is not. It is an economic, social, political phenomenon.” She mentioned that NAFTA has displaced millions of workers in Mexico who flood into the United States.

Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that targets non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

Let us join the voices of compassion and oppose the mean-spirited actions that aim to scapegoat immigrants. Laws like SB 1070 demean us all.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. See www.marjoriecohn.com

The Iraqi High Court's Understated Rise to Legitimacy

2010-04-23T01:20:00.001-04:00

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a look at recent decisions by Iraq's Federal Supreme Court illustrates the court's growing authority as an independent and legitimate voice in matters of constitutional interpretation....

There has been much attention recently devoted to the Iraqi elections and the government that will result from them. Unfortunately, the elections have detracted from a more interesting salutary legal development that has made the entire political process run much more smoothly. This is the growing independence of the Federal Supreme Court and its ability to solve what would be rather intractable problems in a manner that has been broadly accepted as legitimate.

Any number of cases come to mind, but perhaps the two which stand out most prominently are the Court’s recent decision, No. 25 of 2010, as well as an earlier decision issued in December, No. 76 of 2009. The latest decision issued by the Court, concerning Article 76 of the Iraqi Constitution, was probably the more important. While Rod Nordland of the New York Times reported recently that until the Court’s ruling, the meaning of Article 76 was not contested, in fact almost the reverse was true. The provision had been deeply and seriously debated in legal and political circles for months. The provision requires the President to choose a prime minister-designate from the “representative bloc with the highest number,” who would have first opportunity to form a government. The phrase, however, is hardly clear in that it might refer to an election list—in which case the list that had done the best in the elections would have first opportunity—and it might refer to a post election coalition. Ironically, throughout 2009 it was the Sunni coalitions—and most pointedly the Vice Chair of the Legal Committee, Selim Al-Jibouri—who had advanced with some passion the latter interpretation, and it was Maliki’s men, Ali Allaq and Abbas Bayati, who had insisted that the phrase had to mean the winning pre-election list. The reasons they held to these positions seemed rather clear from considerations of self interest—everyone assumed until rather early in 2010 that Maliki was most likely to win the plurality of seats in the election. After the election, which a Sunni coalition had won, and in which Maliki came a close second, the positions of the two groups on the question of Article 76 were precisely reversed, precisely in keeping with their self interest.

For those of us following Iraqi politics, this matter of Article 76 was of serious concern because of the rather fierce nature of the debates concerning its interpretation for some time. Given that the politicians themselves had flipped on the matter, they clearly had no credibility or authority to impose a sensible interpretation of the Article. It seemed as if the matter has to be resolved by the Federal Supreme Court, but that even if it did make a ruling there was a real risk the Court itself would be maligned by one side or the other. Fortunately, the Court ruled and the criticisms were muted. The Court, in a tersely worded one-page opinion, indicated that as the term “bloc” does not necessarily seem to reference any pre-electoral coalition, and as the sequence of events pursuant to which the government is formed is careful and detailed, the natural conclusion is that the bloc did not have to be a pre-election coalition. As contested as the continuing political wrangling has become, this particular decision, of potentially enormous consequence, has been accepted by the major parties. The Court had thus used the law to defuse a potentially violent debate.

The second important decision came last year just as the Iraqi Council of Representatives was getting ready to approve a resolution concerning the interpretation of an Amended Electoral Law, as demanded by Vice President Hashimi if he was not to veto the law. Some parliamentarians, however, argued that the ten-day deadline to veto the law had already passed and that Hashimi’s veto threat was therefore empty. Again, the matter was referred to the Federal Supreme Court for clarification. The narrow legal issue was whether Article 138 of the Constitution, which required a veto within ten days, included only business days, or whether all calendar days were included. Analogizing from similar provisions in the Civil Procedure Code, the Court concluded that in fact the days did not include any holidays, but that if the last day of the ten-day period fell on a non-working day, then the period extended until the next working day. Applying this rule, the Court ruled that the veto would not expire until Sunday, December 6. Again, the decision was followed without objection from the legislature, which did in the end issue a resolution that avoided a veto before the deadline.

To be clear, Iraq’s Federal Supreme Court is hardly able to defuse all political crises within Iraq that have a legal component, and if it were to attempt to do so, its credibility could be damaged. This may well be why the Court has wisely avoided attempting to deal with the thorny constitutional issues concerning ownership and management of oil and gas, or the fate of Kirkuk. But this limitation of judicial authority in the realm of the political is true of all judicial institutions, including our own Supreme Court, which—when it has entered into highly charged political debates, whether those concern the election of a President in this century, or the institution of slavery in an earlier one—seems to have lost some credibility in the process.

The remarkable fact is not therefore the limitations of the Iraqi High Court, but rather its rising authority as an independent and legitimate voice in matters of constitutional interpretation. We can only hope that this encouraging trend will continue.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at http://muslimlawprof.org.

Is Health Care Reform Constitutional?

2010-04-21T12:12:00.001-04:00

JURIST Guest Columnist Sallie Sanford of the University of Washington School of Law says that although challenges to the constitutionality of the Patient Protection and Affordable Care Act are valuable for inspiring dialogue within and outside the legal community, they are unlikely to succeed in the face of decades of Supreme Court case law....

The ink had barely dried on the president’s signature when the lawsuits commenced. Three lawsuits filed in federal court now challenge the constitutionality of key provisions in the new health care reform law.

If a court does reach the merits in these lawsuits, it will almost certainly uphold the constitutionality of the Patient Protection and Affordable Care Act. Under existing case law, Congress has appropriate authority under either its power to regulate interstate commerce or its power to tax and spend for the general welfare. To find otherwise would require a significant shift in Constitutional jurisprudence.

The Individual Mandate

The primary challenge in each of the lawsuits is to the “individual mandate” – the requirement in the new law that most citizens have health insurance or pay a tax penalty. There are several statutory exemptions, including for religious objections, for financial hardship, and if the least expensive plan would cost more than 8% of household income.

Unless an exemption applies, however, each citizen will be required to have health insurance, either through Medicare, Medicaid, an employer-sponsored plan, or individual purchase; premium and cost-sharing subsidies will be available for those with incomes below 400% of the federal poverty level. People who are required to have insurance and do not will be taxed, with the tax rate ratcheting up over time to reach $695 per person or 2.5% of household income, whichever is greater.

Commerce Clause and Tax and Spend Authority

Under our system of government, Congress may exercise only those powers that are specified by the Constitution or that are “necessary and proper” for exercising those express powers. Among the express powers is the regulation of interstate commerce.

In the 1942 case of Wickard v. Filburn, the US Supreme Court considered a challenge to the federal government’s authority to regulate, under a Depression-era price-stabilization law, wheat grown for a farmer’s own personal use. The court concluded that this wheat production, though not for sale, did impact interstate commerce because it reduced the amount the farmer would buy and, considering the activities of similar-minded farmers, would impact the total amount grown.

Following this decision, a variety of federal laws have been upheld as authorized under this power to regulate activities that “arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” In the Heart of Atlanta Motel case, for example, the Court held that a motel owner’s decision not to allow black people to rent rooms impacts interstate commerce and thus could be prohibited by the Civil Rights Act of 1964. Even the federal Partial-Birth Abortion Ban was grounded in Congress’ interstate commerce powers.

Health care constitutes a huge portion of our nation’s economy, currently constituting more than 17% of the GDP. Both health care and health insurance indisputably impact interstate commerce.

Two modern cases have, on a 5-4 basis, overturned federal laws as beyond the scope of the Commerce Clause. In the 1995 case of United States v. Lopez, the Court struck down a law mandating a gun-free zone around public schools because it was “a criminal statute that by its terms had nothing to do with ‘commerce’ or any sort of economic enterprise.” The court wrote that there must be a distinction between Congress’ authority and the general police powers retained by the states, between “what is truly national and what is truly local.” Utilizing a similar rationale, and also on a 5-4 basis, the Court’s 2000 decision in United States v. Morrison invalidated part of the Violence Against Women Act.

In 2005, however, a 6-3 Supreme Court decision, Gonzales v. Raich, once again affirmed an expansive view of the Commerce Clause. The Court held that the federal government has the power to supersede state law, and to prohibit marijuana cultivation, even if grown at home for personal medical use and not for sale.

Writing for the majority, Justice John Paul Stevens wrote that: “We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Congress could rationally conclude that medical marijuana might find its way into interstate commerce, and, as with Farmer Filburn’s wheat, that growing one’s own could impact the overall market, particularly considering the cumulative impact of numerous growers.

Justices Anthony Kennedy and Antonin Scalia formed part of the Raich majority. Justice Scalia’s concurrence explains that this case differed from Lopez and Morrison (in which both he and Kennedy had voted to limit Congress’ authority) and that Congress may in the appropriate circumstance regulate non-economic intrastate activity.

In his Raich concurrence, Justice Scalia maintains that “the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” Under the structure of the new health reform law, the requirement to have insurance is integral to Congress’ overall approach to regulating insurance practices and attempting to stabilize the insurance market.

The Inactivity Argument

The plaintiffs in the pending lawsuits argue, however, that the individual mandate is different because it attempts to regulate inactivity. By definition, they maintain, a person who declines to purchase health insurance is not engaging in commerce at all.

A gamble to remain uninsured does, however, impose economic costs in at least two ways. The first is when an uninsured person seeks medical treatment. Because of a federal emergency care law, state legal requirements, hospital mission obligation, and actions rooted in medical ethics, that care is sometimes mandated and is often provided. Particularly when the patient comes in through the emergency room, as is not infrequently the case, costs are substantial and often go unpaid, either because of a decision at the outset to provide “charity care” or because the patient does not pay the bill.

Findings in the new law estimate the costs of providing uncompensated care at $43 billion in 2008. While many of these costs are ultimately borne by federal, state, and local governments (in the form of subsidies to hospitals and clinics), a substantial amount is shifted to insured patients. Findings in the new law estimate that $1,000 of the cost of an employer-provided family insurance premium (out of an average of about $13,000) is attributable to uncompensated care.

The second way that being uninsured imposes economic costs is by shifting the insured risk pool. Among the approximately one in seven United States citizens who lack insurance, a significant percentage is young and healthy. By not participating in the insurance market, by gambling that they will not need expensive health care (or that if they do, someone else will pick up the tab), they skew insurance pools towards an older and sicker population, raising the premium costs. Thus, this sort of inactivity or non-participation does have an economic impact, and certainly a far more substantial economic impact than the growing of marijuana for personal, medical use.

The plaintiffs also argue that unlike with state requirements to have car insurance, one cannot avoid the requirement by declining the activity. One can avoid a state’s requirement to purchase car insurance by not driving. Unless an exemption applies, however, one cannot avoid the requirement to have health insurance, as it is attached simply to the condition of being a citizen.

There is no direct precedent for a federal law requiring purchase of a private product without the option to not engage in the triggering activity. Businesses can in theory avoid federal requirements to install (privately purchased) environmental or safety equipment by not engaging in the business. Those of us who did not want to buy a new television or sign up for cable service to maintain realistic access after the recent conversion could simply not watch television at home.

More to the point, though, the health reform law does offer a choice. Rather than purchasing health insurance (though an employer-sponsored plan or on the individual market) one can choose to pay the tax. The tax has been criticized by many, in fact, as being too low to act as an incentive. These critics raise the policy concern that some will choose to pay the tax until they get expensively sick or injured and then, based on other, inexorably linked provisions in the new law, insurance companies will be obligated to sell them a plan without pre-existing condition limits or cost adjustments.

The Supreme Court has long upheld the ability of the federal government to regulate behavior through taxation. In a 1937 case, the Court noted that “[e]very tax is in some measure regulatory. . . . But [it] is not any less a tax because it has a regulatory effect[.]” Congress’ taxation power cannot burden a fundamental right, but there is no fundamental right to be uninsured. Some have argued that if this is not really a behavior-encouraging and revenue-raising tax but more of a pure penalty, then there needs to be a separate source of authority, such as the power to regulate interstate commerce.

The Current Court

Even if that is true, the Supreme Court, as described above, has recently reaffirmed a broad interpretation of the commerce clause. The two most recent justices to join the court replaced two dissenters, and thus if they change the calculus it would be to add support to the view that the law is constitutional. Justice Scalia, however, who concurred in the judgment in Raich, has long advocated an “originalist” or more limited view of federal power. It is conceivable that he might find that the health care reform’s individual mandate goes beyond the reach of federal powers and into the state’s police power domain.

That potentially leaves Justice Kennedy as the swing vote. And, of course, the author of the Raich opinion has just announced that he will retire at the end of the current term. The loss of Justice Steven’s persuasive force might have an impact on the court’s analysis.

Medicaid Expansion and Insurance Exchanges

The Florida Attorney General’s lawsuit, which a dozen other attorneys general have joined, also contends that the new law encroaches on state sovereignty by creating state-based insurance exchanges and by expanding Medicaid eligibility. Both of these provisions, they argue, will impose on the states increased costs and expanded administrative burdens and, generally, will “commandeer” them into the service of the federal government.

These arguments have even less of a chance of success than do those related to the individual mandate. The states are not required to set up the exchanges. Under the terms of the law, if a state does not do so, the federal government will. To encourage states to use their regulatory and administrative powers to set up these exchanges, the law offers some funding.

Similarly, states are legally free to drop out of the Medicaid program and to forego the matching dollars that accompany it. Medicaid is a joint federal-state program in which the federal government sends financial support to state programs that, in compliance with federal guidelines, provide health care to low-income people. Wealthier states have a baseline 50/50 match, meaning that for every dollar they spend, the federal government contributes at least a dollar. The less well-off states have at least a 25/75 match.

It is true that, as a practical matter, states are heavily reliant on the matching Medicaid dollars to care for their poorest citizens and to support key safety-net health care providers. It is also true that Medicaid funding is a significant part of most states’ beleaguered budgets. The new law expands eligibility by opening the program up to all citizens and legal residents with incomes below 133% of the federal poverty level. This will have the effect of adding many adults to the program. Initially, the federal government will cover all of the costs of providing care to the newly eligible, though this coverage will ratchet down to 90% over a few years.

The Supreme Court has upheld similar conditional-spending arrangements as valid exercises of Congress’ tax and spend authority. In South Dakota v. Dole, for example, the Court upheld a federal law that withheld 5% of highway funds from any state that did not raise its legal drinking age to 21. The Court did recognize in Dole that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’" To date, the Court has not identified such a circumstance.

It is hard to reasonably argue that the new law’s Medicaid expansion inducement reaches the point of compulsion. Congress has changed Medicaid conditions numerous times over the years and, with this new eligibility expansion, the federal government will initially assume most of the costs of the newly eligible. The exchanges present even less of a case for compulsion as they do not yet exist, and the new law provides some administrative funds for their establishment.

Procedural Hurdles

The plaintiffs also face significant hurdles before a court would get to the merits of their claims. One hurdle is ripeness. The challenged provisions do not go into effect for several years. In general, a claim is not ripe for adjudication if it rests upon contingent future events that might not occur; an exception might be made for a purely legal challenge to a law, such as this one, that will require significant advance groundwork. However, with Republican calls to “repeal and replace,” it is not far-fetched to wonder if the challenged provisions will survive. Such was the fate of the Medicare Catastrophic Coverage Act, which, in the late 1980s, was repealed before it went into effect.

Another procedural hurdle is standing. In general, only those who are being, or imminently will be harmed by a law can challenge its constitutionality. The individual mandate, if it were in effect, would certainly harm some individuals. Its harm to the states is less clear, and it is on the states’ behalf that the plaintiffs in the Florida case have filed their complaint.

In a 2007 case, the Supreme Court did grant states standing to challenge the EPA’s inaction on greenhouse gas regulation, finding sufficient injury on the theory that the states were impacted by potential changes to their coastlines and to overall environmental wellbeing. Drawing on this 5-4 decision, perhaps the states could make a not-yet-articulated argument having to do with diverted state tax revenue and population wellbeing, but this seems a stretch. The separate complaint filed by the Virginia attorney general is based on that state’s recent enactment of a law purporting to nullify the individual mandate as to Virginia residents, and the defense of that law perhaps provides a toe-hold into standing. The Thomas More Law Center plaintiffs do include four individual citizens. And of course, if the other complaints survive the ripeness and other challenges, individuals might join as plaintiffs.

Nonetheless, based on decades of Supreme Court case law, the substantive challenges to the constitutionality of the Patient Protection and Affordable Care Act are unlikely to succeed. They are likely, though, to continue to inspire discussions within the legal community and within the general public about the role of government, the nature of health care, and the obligations of citizens. Perhaps that, in itself, is a valuable outcome.

Sallie Sanford is an Assistant Professor of Law at the University of Washington.

Not Child's Play: Revisiting the Law of Child Soldiers

2010-04-13T12:14:00.004-04:00

JURIST Special Guest Columnist Lt. Col. Chris Jenks (USA), Chief of the International Law Branch of the Office of the Judge Advocate General, says that the discussion on child soldiers in general and Omar Khadr in particular should be broadened to move past misperceptions of the applicable law and norms concerning detention and prosecution of child combatants....

In the fall of 2009, Attorney General Eric Holder announced that Canadian Omar Khadr would likely be tried by military commission for, among other offenses, the murder of U.S. Army Sergeant First Class Christopher Speer. Khadr is alleged to have thrown a grenade which killed Speer and wounded another U.S. Army soldier during a 2002 engagement in Afghanistan. Khadr also faces other charges which stem from his alleged participation in: al Qaeda “basic training,” land mine training, the conversion of land mines into improvised explosive devices, and the shooting and killing of two Afghan militia members.

Canada’s announcement that it will not seek Khadr’s repatriation means that not only is Khadr likely to face trial by military commission, he may well be the first to do so under the revised commissions the Obama administration employs.

Much of the attention on Khadr’s case has focused on his age – according to his defense counsel he was 15 years and 10 months at the time of his alleged offenses. Much of the attendant criticism which flows from Khadr’s age when detained, and the authority to hold him criminally responsible, is misdirected if not misplaced. Such critiques overlook well established international norms which provide not only for restricting Khadr’s liberty but also for holding him accountable for any crimes he may have committed. These norms are extant both in the lex specialis, the law of armed conflict (LOAC), and in more general international law writ large. The discussion about child soldiers could, and should, be broader.

Under the LOAC, the Fourth Geneva Convention on civilians discusses the detention of individuals who, like Khadr, don’t qualify as either members of a regular or irregular armed force and thus are not considered prisoners of war under the Third Geneva Convention. Additionally (and more specifically), regardless of whether you characterize the armed conflict in Afghanistan in 2002 as international (IAC) or non-international (NIAC) in nature, the Additional Protocols (AP) to the Geneva Convention clearly envision the detention of “children” who directly participate in hostilities. While the United States has not ratified either of the APs, and one can argue about the applicability of the various Geneva Conventions to the current conflicts, through Department of Defense Directive 2311.01E, the United States policy is to apply the law of war during all armed conflicts, regardless of how such conflicts are characterized. Perhaps more relevant to this discussion, the majority of the world has ratified the APs and detention of individuals like Khadr is consistent with those widely subscribed instruments.

Additional Protocol I, which deals with IAC, discusses the protection of children in art. 77. While art. 77 affords special protections, those protections apply to children under 15. Even then, the special protections do not preclude children, even those under 15, from being arrested, detained, or interned if they take a direct part in hostilities. Under AP I, persons who had not reached 18 years of age when they committed an offense related to armed conflict are not subject to the death penalty. The clear inference is that such individuals may be held criminally responsible for their actions and subject to punishment, just not capital punishment.

Additional Protocol II, which deals with NIAC, describes the care and aid children require in art. 4, and in slightly more detail than AP I. It does so first as applied to children who do not take a direct part in hostilities or who have ceased to take part in hostilities. It then qualifies that the special protections remain applicable to children under 15 who have taken a direct part of hostilities. Again though, the special protections do not include protection or immunity from internment or detention, and wouldn’t apply to Khadr anyway as he was not under 15.

Most of the provisions of the APs reflect current U.S. practice (see Michael Matheson, The US Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, Remarks before Session One of the Humanitarian Law Conference (Fall 1987), 2 AM. U. J. Int'l Law & Pol'y 419 (1987). But to the extent that the APs are considered anachronisms and not indicative of evolving norms against child soldiers, fair enough. Yet the normative evolution focuses on increasing the minimum age for direct participation in hostilities and for recruitment into armed groups--not on preventing prosecutions of those in violation of the norm. The detention provisions of the LOAC should not be viewed as an aberration or radical departure from how the world community otherwise views detention and prosecution of child offenders. They are not.

The international community has struggled to reach consensus on at what age children may be held criminally responsible. The Convention on the Rights of the Child (CRC) defines a child as anyone under 18 and while the CRC provides special protections to children, those protections don’t include immunity from prosecution and punishment (other than capital punishment or life imprisonment without possibility of release). The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) were also not able to agree on an age trigger for criminal responsibility, instead that decision is left to individuals States with the guidance that the age should not be set at too low a level and should reflect emotional, mental, and intellectual maturity. Under the Rome Statute, the International Criminal Court lacks jurisdiction over persons under the age of 18 while the Statute for the Special Court for Sierra Leone allowed for prosecution of children age 15 and older, although no such prosecutions occurred.

The era of the doli incapax rule, an irrebutable presumption that children may not be held criminally responsibly, is over. Even when it existed, it did not extend past the age of 14. This is borne out in international practice, for example in 1993 the United Kingdom found two 11-year-olds criminally responsible for kidnapping and murdering a two year old boy. In reviewing that decision, the European Court for Human Rights, in T and V v. UK, ruled that attributing criminal responsibility to a 10 year old did not in and of itself give rise to a violation of the European Convention on Human Rights and Fundamental Freedoms. The Court also noted that the age of ten cannot be said to be so young as to differ disproportionately from the age-limit followed by other European States.

While aspects of children and criminal responsibility are either unsettled or left to individual nations, at a minimum we should acknowledge that the LOAC provides authority to detain and prosecute individuals like Khadr. Moreover, in the broader sense, there isn’t a norm governing the age of criminal responsibility but if there was (or is), the prosecution of an individual two months shy of their 16th birthday for murder would fit safely within its ambit.

Chris Jenks is a Lieutenant Colonel and Judge Advocate in the United States Army. The opinions expressed above are exclusively those of the author, and not necessarily reflective of any agency of the United States government.

The US-Israel Standoff over Settlements

2010-04-07T00:43:00.011-04:00

JURIST Guest Columnist Victor Kattan of the Centre for International Studies and Diplomacy, School of Oriental and African Studies, University of London, says that morally, legally, and politically the Obama administration is on solid ground in its confrontation with the Israeli government over its refusal to stop constructing settlements in East Jerusalem....

US-Israel relations are reputedly at their lowest ebb in years. Last month, Vice-President Joe Biden visited Israel to bolster peace negotiations with the Palestinians. To shore up Israeli support, he told Prime Minister Netanyahu that the US had an ‘absolute, total, unvarnished commitment to Israel’s security’. He did not expect that on the very same day, Israel’s Interior Minister would announce that a decision had been made to construct 1,600 new housing units that would almost double the size of Ramat Shlomo, an ultra-Orthodox settlement in East Jerusalem. The expansion of the settlement, which is contrary to international law, killed off the proximity talks with President Abbas which were supposed to have begun in earnest that week. Biden reportedly left Israel embarrassed and angry. The rift was not healed when Netanyahu arrived in Washington later that month to speak at the American Israel Public Affairs Committee (AIPAC). The White House imposed a news blackout on the meeting between Netanyahu and Obama. There was no picture of the two men together and no press statement by the White House as is customary on such occasions.

The Obama administration is on solid ground in its confrontation with the Israeli government over its refusal to stop constructing settlements in East Jerusalem morally, legally, and politically. It has been long-standing US foreign policy to oppose Israel’s attempts to alter the facts on the ground by constructing settlements in the occupied territories in an attempt to alter its ethnic and demographic composition. Jerusalem is also home to the Holy Places which are of special significance to the three monotheistic religions. This is why various attempts were made in the past to internationalise the city, to diffuse religious and racial tensions, by having it administered by a third party. However, Israel has historically been opposed to plans to internationalise the city because it views Jerusalem as its ‘eternal and undivided capital’, although this has never been recognised by any other country, and for that reason they locate their embassies in Tel Aviv. Moreover, the eastern part of the city is considered occupied territory, which means it has a distinct and special status under international law. It is a cardinal rule of international humanitarian law that sovereignty does not pass to the occupying power which only has a right of temporary administration over the territory. No state has recognised Israel’s annexation of the eastern half of the city, where the Holy Places are located, and which has been condemned as ‘null and void’ by the UN Security Council.

Disputed or Occupied Territory?

Israel has employed a number of arguments, both legal and political, to justify its four decades long policy of constructing settlements in the occupied Palestinian territories. These arguments all relate to the legal status of the territory that was occupied by Israel in 1967. Under international law when territory is captured in an armed conflict, it is placed under belligerent occupation, regardless of whether the conflict which preceded it was lawful or not. One often comes across the argument that the territories are ‘disputed’ rather than ‘occupied’. Beyond the realm of propaganda, this argument is disingenuous since the Israeli government has in practice always treated the territories as occupied as has Israel’s Supreme Court in a number of rulings. This is why Israel uses military orders to channel Israeli legislation into the occupied territories for the benefit of the settlers, why the Supreme Court considers the norms of belligerent occupation in its assessment of government policy regarding ‘targeted killings’, its construction of the barrier, and the application of legislation from workers rights to human rights. The only issue that Israel contests is the applicability of the Fourth Geneva Convention of 1949. It disputes that the Convention applies in its entirety to the occupied territories, a view no one outside Israel accepts, and which does not affect the status of the territory as occupied. Israel has never contested the application of the Hague Regulations of 1907 concerning the Laws and Customs of War on Land which applies to occupied territory.

The Position under International Law

Article 49 (6) of the Fourth Geneva Convention provides that: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. The authoritative commentary of this convention prepared by the International Committee of the Red Cross states that this prohibition was adopted to prohibit the colonization of occupied territories. It does not distinguish between forcible and non-forcible population transfers and prohibits any and all population transfers from the occupying power to occupied territory. On 9 June 2004, the International Court of Justice ruled unanimously in an advisory opinion that the Fourth Geneva Convention was applicable to the occupied Palestinian territories and that Israeli settlements there are illegal. This included the opinion of Thomas Buergenthal, the US judge at the International Court and who, whilst exercising his discretion to refrain from hearing the case, concurred with the Court’s finding on the illegality of Israeli settlements.

It should be noted that the Israeli government was aware even before it began settling its population in the West Bank in the 1970s that its settlements policy would be illegal. Theodor Meron, a former judge at the International Criminal Tribunal for the former Yugoslavia, and presently Professor of Law at New York University’s School of Law, made this clear in a legal memorandum he wrote when he was the legal adviser to Israel’s Ministry of Foreign Affairs. ‘My conclusion,’ he advised the Israeli Government on 18 September 1967, ‘is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention’. An authoritative English translation of the declassified legal advice is currently available online at the website of the Sir Joseph Hotung Project in Law, Human Rights, and Peace Building in the Middle East at the School of Oriental and African Studies, University of London.

In 1978, Herbert J Hansell, the US State Department’s Legal Adviser concurred with Meron’s reasoning by reaching the same conclusion: Israeli civilian settlement activity in occupied territory is contrary to international law because it breaches Article 49 (6) of the Fourth Geneva Convention 1949. In addition to this legal advice there were a score of UN Security Council resolutions passed in the late 1970s and early 80s condemning Israeli settlement activity. When former President George H. W. Bush was Ambassador to the United Nations in 1971 he expressed his regret that Israel had failed to abide by its obligations to refrain from constructing settlements which he said were, and I quote, ‘contrary to the letter and spirit of the fourth Geneva Convention’. It has recently been reported that the US government may abstain from voting on any draft resolution presented to the Security Council condemning Israeli settlement activity should the disagreement with Israel over the settlements in Jerusalem remain unresolved.

The Missing Reversioner Thesis

In December 2009, Danny Ayalon, Israel’s Deputy Foreign Minister, published an article in The Wall Street Journal in which he claimed that the occupied territories are not occupied but rather ‘disputed’ because the Palestinians ‘had not attained recognised sovereignty before Israel’s conquest’. The argument that the Palestinian Arabs had not attained sovereignty after the Britain relinquished its mandate and before Israel’s conquest in 1948-9 is highly questionable. This is because upon the termination of the mandate sovereignty vested in the population of Palestine as of 15 May 1948 as a whole. The majority of Palestine’s inhabitants on that date viewed themselves as belonging to Palestine’s Arab community to whom sovereignty would vest. The demography of Palestine would vastly change after the war, but an unlawful conquest is no basis to deny them sovereignty to this day. Moreover, Ayalon’s argument is self-defeating because prior to Israel’s conquest of Palestine in 1948-9, no state had recognised Jewish sovereignty over Palestine. As regards the application of the Fourth Geneva Convention, Ayalon advanced the argument that Israel has better title to the West Bank because no one else had a stronger claim to sovereignty over it (apart from the Palestinian Arabs of course) after Britain relinquished its mandate over Palestine on 15 May. This argument has been referred to by legal scholars who have adopted it as ‘the missing reversioner thesis’. It was expounded in a number of legal articles published in Israel and the United States in the 1970s which included an article published by Meir Shamgar, who was then Israel’s Attorney-General. The ‘missing reversioner’ argument was expressly rejected by the ICJ in the Wall advisory opinion. The ICJ ruled that the Convention applies to any armed conflict between High Contracting Parties and that it was irrelevant whether or not territory occupied during that conflict was under their sovereignty. Judge Buergenthal expressly concurred with the opinion of the majority in his separate opinion on this point. This conclusion is also foreshadowed by the Meron opinion, which noted that the international community had rejected Israel’s claim that the territories were not occupied.

Eugene Rostow’s Argument

In 1979, Eugene Rostow, who served as Under Secretary of State for Political Affairs under President Lyndon B. Johnson and who was once Dean of Yale Law School. published a paper in the Yale Studies in World Public Order in which he invoked the history of the British Mandate of Palestine to support Israeli claims to sovereignty over the whole of the Holy Land including the West Bank and Gaza. He attacked the US State Department’s advice on the illegality of Israeli settlements and reached the rather strange opinion that, ‘Jewish rights of immigration and close settlement in the West Bank and Gaza Strip, established by the [British] Mandate, have never been qualified’.

The argument advanced by Rostow is at variance with British law and state practice in the mandatory era which I am familiar with as I wrote a 400-page book on it. This is because on 15 May 1948, the British Mandate was legally terminated by the British authorities in Palestine and Westminster. One cannot rely on an international instrument which no longer exists. Moreover, Jewish rights to settle in Palestine during the mandate were always subject to restrictions from immigration, to land usage, to the political rights of the indigenous Arab population. This was implicit from the terms of the mandate and from the safeguard clauses in the Balfour Declaration protecting the civil and religious rights of the non-Jewish community. Moreover, throughout the mandatory years the British government proposed several Partition Plans that envisaged the creation of an independent Arab state in Palestine. Thus the right of the Palestine Arabs to self-determination and to establish an independent state of their own in Palestine was explicitly recognised even during the mandate era. Continued Jewish settlement in the West Bank conflicts with the right of the Palestinians to self-determination which has since been recognised in numerous international instruments and resolutions. In its 2004 opinion the ICJ referred to the Palestinian people’s right of self-determination as an obligation erga omnes. It is therefore incumbent on the international community to see to it that all efforts are made to secure a democratic, independent, and viable Palestinian state living side by side in peace and security with Israel. This can only emerge once Israel relinquishes control over the occupied territories and ceases settlement activity.

Concluding Remarks

In 1947, the United Kingdom turned over the future destiny of Palestine to the United Nations which voted in favour of the Partition Plan that sought to create a Jewish state and an Arab state in Palestine. Jerusalem was to be placed under some form of international administration as a corpus separatum. Israel accepted that Plan, which is mentioned in its Declaration of Independence. It was also on the basis of Israel’s acceptance of that Plan that many states afforded it recognition in 1948-49. Thus they did not recognise Israeli claims to Jerusalem or to those areas which had been assigned to the Arab state in that Plan. The Arab states opposed the UN Plan because they thought that it was unfair to the Palestinian Arabs who in 1948 still formed a majority of the population and owned most of the land. After several Arab-Israeli wars, including the June 1967 War, when Israel occupied East Jerusalem, the West Bank, and the Gaza Strip, the Palestinians have come to accept that Israel is an accomplished fact. In 1993, Yasser Arafat recognised the state of Israel, in the hope that Israel might one day reciprocate and recognise the right of his people to an independent homeland as well. This has yet to happen. In 2002, the Arab League—comprised of 22 member states including Egypt and Jordan who have already made peace with Israel—offered full normality and diplomatic relations with Israel if it would withdraw from the territories it occupied in 1967, cease settlement activity, and allow the Palestinian to create an independent state. Israel spurned the offer. Instead the party political platform of the Likud that Netanyahu chairs is totally uncompromising. ‘The Government of Israel’, the Platform dictates, ‘flatly rejects the establishment of a Palestinian Arab state west of the Jordan river’. On the question of settlements, the Platform states that ‘the Likud will continue to strengthen and develop’ them, thus further diminishing the prospects for peace in the Middle East.

Victor Kattan is a Teaching Fellow at the Centre for International Studies and Diplomacy at the School of Oriental and African Studies, University of London. Victor is the author of From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (London: Pluto Books 2009). You can read more about Victor here.

Prosecuting Terror Suspects in Federal Court: The Right Choice

2010-04-02T11:15:00.002-04:00

JURIST Guest Columnist Virginia Sloan, president and founder of the bipartisan Washington DC-based Constitution Project, says that US Attorney General Eric Holder should stand by his decision to try Guantanamo Bay detainees in traditional federal court, rather than in military commissions....

Last month, the Constitution Project, working with Human Rights First, brought more than a dozen signatories to Beyond Guantanamo: A Bipartisan Declaration to our nation’s capital to meet with members of Congress and their staffers to advocate for the trial of terrorism suspects in traditional federal court, rather than military commissions. Signatories also cautioned against using a system of indefinite detention to hold suspects without charge or trial. These efforts were particularly timely given recent debate on these issues and pending legislation that could force the administration to pursue prosecutions of terrorism suspects only in military commissions.

For far too long, the national debate around how and where to try suspected terrorists now held at Guantanamo has been incorrectly framed as a partisan dispute. It is simply wrong to believe that the national security debate has to pit Democrats against Republicans, and conservatives against progressives. Beyond Guantanamo is an example of policy experts from across the political spectrum who have come together to support federal court prosecutions for suspected terrorists and to oppose any policy of indefinite detention without charge.

The range of voices that Beyond Guantanamo represents is vast, with former members of Congress, diplomats, federal judges and prosecutors, high-level military and government officials, as well as national security and foreign policy experts, bar leaders, and family members of 9/11 victims having joined the Declaration. At the conclusion of the day’s events, we asked a few of our participants to summarize their thoughts about the full day of meetings and activities.

From Stephen Abraham, retired Lieutenant Colonel in the U.S. Army Intelligence Corps (Reserves):

The choice of trying terrorists in Article III courts or by military commissions is a false choice. This is not a choice between tested and untested forums. Rather, it is a choice between a system of justice that has endured as a light unto the nations for more than 200 years and a process created in haste, borne out of fear. Terrorists seek to weaken our faith in our nation and ultimately ourselves. Affirming our institutions, our laws, and our values is our greatest weapon. Each time we try a terrorist according to our laws, we have won a battle in the struggle against terrorism.

From Bruce Einhorn, former federal judge and former Special Prosecutor and Chief of Litigation at the U.S. Department of Justice’s Office of Special Investigations:

I came three thousand miles to urge our elected officials on Capitol Hill to end the unproductive and so far unconstitutional use of military commissions to try alleged terrorists at Guantanamo or wherever such suspects are found or held. For almost nine years, our government has attempted to employ military commissions without success. In case after case, the U.S. Supreme Court has found the Executive Branch rules and congressional legislation that authorized these commissions to be constitutionally defective. During that period, only three trials of alleged terrorist were actually held before military commissions. In contrast, during that same period, hundreds of such trials have been successfully completed by the federal district courts, and 97% of those prosecutions have resulted in guilty verdicts.

The district courts have a long history of presiding over alleged terrorist cases in a fair and efficient manner, with no violence or security glitches' interfering in the proceedings. Moreover, U.S. Justice Department prosecutors have extensive experience in prosecuting complex cases of terrorism, sabotage, violations of the laws of war, and criminal conspiracy. By contrast, most military prosecutors, while intelligent and industrious, lack the background to handle the unusually challenging and complicated issues associated with the prosecution of alleged Al Qaeda operatives and their terrorist allies.

It is time to stop offending our Constitution and stop wasting taxpayer money on a military commission system that has not worked. I again urge our senators and congresspersons to utilize the finest and most respected civilian court system in the world, which has functioned with minimal revisions and maximum fairness since its inception in 1789.

From Don Guter, retired Rear Admiral in the U.S. Navy:

These guys are not warriors. They are thugs and they deserve to be treated like any other common criminal, not as legitimate soldiers. Our federal civilian courts have a proven track record of delivering the swift and sure justice that Americans expect and deserve. Attorney General Holder made clear that federal courts are [the] best venue to prosecute these cases and the administration should not waiver in its determination to do so.

From Donna Marsh O’Connor, member of September 11th Families for Peaceful Tomorrows:

September 11th Families for Peaceful Tomorrow is proud to partner with the Constitution Project as it works on the Beyond Guantanamo campaign. Knowing that we are surrounded by thoughtful and knowledgeable Americans (distinguished constitutional attorneys, military figures, and leaders of our nation from both sides of the political aisle) makes those of us who lost loved ones and continue to trust in the American rule of law feel supported, validated and energized. In our common goals we believe we will prevail. We support the closure of Guantanamo Bay, the end of indefinite detention and torture and we will work to dignify through its use the United States Constitution and the good citizens of the United States.

From Richard Rossman, former U.S. Attorney for the Eastern District of Michigan and former Chief of Staff for the Criminal Division at the U.S. Department of Justice:

Our American values are based upon equal justice, not making up new rules whenever we are afraid. For over 200 hundred years, our Constitution and our form of justice have served our country quite well. We have, however, strayed from these concepts since 9/11.

We need to get back to our basics. Except for the battlefield combatant captured in a war zone, those persons who commit wrongs against the citizens of the United States should be brought to justice in our federal criminal courts. Guantanamo should be closed immediately and not just moved to Illinois. Those persons who are detained in Guantanamo and anywhere else the military is holding alleged terrorists should be charged with wrongdoing in Article III Courts or released. Until this happens, we will not truly be a nation of ‘Equal Justice Under Law.’

As recent headlines demonstrate, it is far from clear whether Attorney General Holder's decision last November to try five of the 9/11 suspects in federal courts will be overturned. Last month, however, the Constitution Project was proud to enable so many individuals with so much authority and expertise to make their voices heard in support of the Attorney General's original decision. We hope Congress and the White House will listen.

Virginia Sloan is the president and founder of the Constitution Project.

Supervising Intelligence: A Checked and Balanced Approach to National Security

2010-03-22T11:37:00.002-04:00

JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England Law | Boston say that Congress’s effort to gain greater oversight of certain intelligence actions through the Intelligence Authorization Acts for Fiscal Year 2010 is a clear example of a bipartisan effort to exercise the constitutional responsibilities that it shares with the executive branch for national security....

Congress has sought to enhance its capacity to oversee national intelligence operations through the Intelligence Authorization Acts for Fiscal Year 2010. Among other requirements, the House bill would require the President to notify members of Congress about certain intelligence developments. The Senate bill would go further and require every member of the intelligence committees to be informed of the “main features” of certain intelligence activity. In addition, provisions in both bills would amend current law to allow the General Accounting Office to conduct intelligence oversight, by allowing any Congressional committee with some jurisdiction over an intelligence program to request a GAO review.

The White House has announced its opposition to these proposals. On March 15, 2010, the Director of the Office of Management and Budget, Peter Orszag, wrote the chairs of the Congressional intelligence committees to explain that the notification provisions, the GAO provisions, and the provisions concerning funding for the National Intelligence Program were problematic from the administration’s perspective. Indeed, Orszag went so far as to suggest that President’s senior advisers would recommend that he veto any bill containing these provisions.

At least in respect to the notification and GAO provisions, what the administration seems to oppose is any change in the relationship between the President and Congress in respect to the latter’s supervision of the work of the intelligence community. Currently, Congress is informed by proxy of significant intelligence activity — the President limits notification to senior leaders from both parties on the intelligence committees. In the administration’s view, the bills encroach upon “the President’s responsibility to protect sensitive national security information,” according to the Conference Letter prepared by the Office of Management and Budget.

Similarly, the administration argues that the GAO provisions would provide the GAO unprecedented authority. Currently, the intelligence community and the GAO have operated without any formal guidelines to govern their relationship. The administration fears that express GAO authority to engage in intelligence oversight would “alter the long-standing relationship and information flow between the [intelligence community] and intelligence committee members and staff,” as the Conference Letter argues, and "undermine the ability of the committees to contribute to improving the quality of intelligence operations through interaction with “a cadre of knowledgeable and experienced staff.”

The administration’s qualms with these Congressional proposals miss the mark. Neither the notification procedures nor the GAO provisions would undermine the relationship between the Congressional intelligence committees and the intelligence community. Neither proposal would compel the executive to disclose any sensitive national security information. Rather, these proposals would simply enhance the ability of members of Congress to be informed about the nation’s intelligence activities and, if necessary, to review those activities through GAO oversight that appear suspect. What the administration fears, in the end, appears to be a Congress that is better-informed and capable of acting more quickly to investigate executive actions in the area of national security.

Some might suggest Congress is simply operationalizing its constitutional obligation to keep the executive in check. There is no question that the textual allocations of national security authority in the Constitution are divided between both the executive and Congress. The Supreme Court, when called upon to determine where the line should be drawn between the executive and Congress on matters of national security, has held that the Constitution favors active political checks and balances. (See Youngstown Sheet and Tube Co. v. Sawyer, Hamdan v. Rumsfeld, Medellin v. Texas).

Congress’s effort through the authorization acts to gain greater oversight of certain intelligence actions is a clear example of a bi-partisan effort to exercise its shared constitutional responsibilities. One only has to look back a few years to see what can happen when Congress abdicates this responsibility. The intelligence oversight regime in effect back in 2005, which the Obama administration wants to preserve, is a regime that allowed the executive to engage in a multi-year warrantless domestic surveillance program. The full scope and details of this program remain unclear even to this day. It is noteworthy that the oversight — or lack thereof — kept members of Congress in the dark about the very existence of the program until the story broke in the New York Times in December 2005. It was several years after the fact and only after a great deal of legislative effort that Congress was able to exercise some form of regulation and oversight in this area. With the kind of freedom of action that the current oversight regime allows the President, it is small wonder that the Obama administration would be opposed to any change.

This is not an instance in which Congress should defer to the executive or to the intelligence community. Our constitutional structure is premised on the belief of the framers that each of the political branches of government should serve as a check on the excesses of the other, and should push back when the other branch pushes too far. The oversight mechanisms envisioned under the Intelligence Authorization Acts are precisely the kinds of programs that would allow Congress to exercise these constitutional responsibilities. This is not a partisan issue; Congress should not bow to the threat of a presidential veto. These changes should be preserved in the proposed legislation, and Congress should fulfill its constitutional obligations.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England Law | Boston. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate.

Sovereignty, Atrocities and Accountability

2010-03-17T16:35:00.003-04:00

JURIST Guest Columnist Laurie Blank of Emory Law's International Humanitarian Law Clinic says while legal debates about sovereign immunity most often center on principles of comity versus principles of victim access to justice, courts ruling on this issue should not forget about broader policy considerations and national security....

Remarkably, the United States Supreme Court and the International Court of Justice are addressing nearly identical issues at the same time: the application of sovereign immunity in suits for war crimes and other atrocities. Although the two courts may be unlikely to look to each other for guidance, the very existence of parallel cases about still unresolved issues speaks volumes.

It tells us that the notion of jurisdictional immunity for states is no longer automatic. It drives us to think about the role of sovereign immunity as a bar to jurisdiction and, more importantly, about the limited recourse victims of atrocities have to find justice through retribution and restitution. Finally, it spurs us to think about the policy considerations that rarely come to light amid technical discussions of statutory interpretation.

Samantar v. Yousef examines whether the Foreign Sovereign Immunities Act grants a former Defense Minister of Somalia immunity from suit in U.S. courts for torture and extrajudicial killings. In Germany v. Italy, the ICJ will consider whether Italian national courts have violated Germany’s sovereign immunity by awarding damages to Italian victims of Nazi war crimes.

Notwithstanding certain key differences – human rights violations or war crimes, individual state official or the state itself – the fundamental issues are decidedly similar. Does sovereignty immunize a state, or state officials, from accountability for atrocities, whether during armed conflict or during a repressive regime? Should victims lose the opportunity for redress simply because their oppressor is a state (or wears the cloak of state authority)?

Long-standing notions of comity and the desire to avoid one state’s courts sitting in judgment on another state’s conduct, the traditional justifications for sovereign immunity, are important considerations and worthy of great weight in analyzing how to respond to atrocities committed by states and state officials.

However, history and current events have taught us that the state’s capacity to commit atrocities knows no bounds. In the aftermath of repression and conflict, options for justice and compensation are often limited, if not non-existent. Germany’s provision of billions of dollars in war reparations to Italians and other victims of the Third Reich serves as a model – but unfortunately one that is rarely followed in modern times.

Beyond technical legal questions, therefore, lie broader policy reasons that should not be lost in sophisticated discussions of statutory interpretation and international comity. In other words, the resolution of these cases will not only provide excellent teaching materials for the next semester of International Law, but can have powerful ramifications both at home and abroad.

U.S. and international law prohibitions against torture, war crimes and other atrocities risk becoming meaningless without appropriate mechanisms for accountability. As we so often hear, victims of atrocities who find refuge here in the United States no longer have such refuge if the very perpetrators of those atrocities are living with impunity, just down the road.

But enabling perpetrators to find safe haven here has larger implications as well. The U.S. and other nations have important military and national security interests in ensuring accountability for atrocities, whether by domestic or foreign perpetrators. Our military’s long tradition of accountability for violations of the laws of war, dating back to the Revolutionary War, for example, reflects our military’s tradition of honor and adherence to the law.

More importantly, however, adherence to the law and accountability for abuses protect our military. First, our troops deployed overseas (and civilians as well) benefit from the protections of the law not only because all countries have obligations to respect the law of war and human rights law, but because reciprocity means that our adherence to the law demands comparable behavior from others.

Second, impunity for past abuses is a main ingredient in future abuses, which in turn foster the very instability and chaos that lead the U.S. and other nations to intervene in troubled spots to protect civilians and preserve or restore the rule of law. Increased accountability can thus protect our troops by helping to reduce the need to deploy them in such circumstances.

Debates about sovereign immunity most often center on principles of comity versus principles of victim access to justice. Let’s not forget about broader policy considerations and national security as well while we await the courts’ decisions.

Laurie R. Blank is the Director of Emory Law's International Humanitarian Law Clinic. She co-wrote the amicus brief on behalf of Retired Military Professionals in support of Respondents in Samantar v. Yousef.

Roberts' Response: Not Out of Line (Either)

2010-03-16T16:44:00.005-04:00

JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says recent comments by Chief Justice Roberts responding to President Obama's criticism of the Supreme Court's Citizen's United ruling were not disrespectful toward the institutions of Congress or the presidency or toward any particular person....

Chief Justice Roberts’ comments last week concerning President Obama’s controversial criticism of the Supreme Court’s campaign financing decision in his State of the Union address have generated criticism and controversy of their own. Some commentators believe that Roberts expressed excessive sensitivity toward criticism, while others have questioned whether he should have made any remark at all about an essentially political issue. Taken in context, however, Roberts’ remarks were appropriate for exactly the same reason that, as I explained in a JURIST column last month, Obama’s criticism of the Court was proper: the remarks of both Obama and Roberts were fair and reasonable and neither threatened judicial independence or integrity, or breached appropriate boundaries involving separation of powers.

Responding to a question from a student during an appearance at the University of Alabama School of Law on Tuesday, Roberts avoided any direct criticism of the President, whom he did not name. His remarks appear have been directed mostly and perhaps solely at the behavior of members of Congress, many of whom stood and cheered in the shadow of the silent and seated Justices after Obama forcefully criticized Citizens United v. Federal Election Commission, in which the Court by a five to four vote nullified certain limitations on spending by corporations in political campaigns.

After acknowledging that “anybody can criticize the Supreme Court,” Roberts added that “[o]n the other hand, there is the issue of the setting, the circumstances and the decorum.” According to Roberts, “[t]he image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court – according to the requirements of protocol – has to sit there expressionless, I think is very troubling.” Roberts remarked that “[t]o the extent that it has degenerated into a political pep rally, I’m not sure why we’re there” at State of the Union addresses.

The controversy that Roberts’ remarks has generated provides a reminder that judges, especially U.S. Supreme Court justices, need to be very circumspect in their public comments about any subject, particularly public affairs. Judicial conduct codes, including the Code of Conduct for United States Judges, prohibit judges from making public comment about the merits of any matter pending or impending in any court. Canons in these codes also require judges to uphold the integrity and independence of the judiciary and to avoid impropriety and the appearance of impropriety in all activities. These canons imply that a judge should refrain from any public comment that might suggest that they have pre-judged any legal issue, even ones that have not come before their court. They also imply that judges should steer clear of any political controversy in order to avoid any appearance that their decisions are influenced by partisan considerations. The Code of Conduct for United States Judges states that while judges “may speak, write, lecture, and teach on both law-related and nonlegal subjects,” a judge “should not participate in extrajudicial activities that detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality.”

Roberts did not transgress those standards in his remarks this week. Since he spoke only in response to a question than in a prepared statement, he did not deliberately interject himself into the controversy over Obama’s statement about Citizens United. His expressions of irritation did not transgress the bounds of dignity, although they may have teetered on the edge. Just as Obama’s remarks about Citizens United did not express any disrespect for the Court as an institution or encourage any extra-constitutional defiance of the Court’s decision, Roberts’ remarks this week were not disrespectful toward the institutions of Congress or the presidency or toward any particular person.

Moreover, Roberts said nothing that could have raised questions about his partiality concerning any issue that might come before the Court. Indeed, Roberts firmly refused several times during the question and answer session to respond to queries about issues that the Court adjudicates or might adjudicate, including the scope of the Ninth and Tenth Amendments, and problems arising from the spiraling costs of state judicial election campaigns.

Roberts’ appearance this week at the University of Alabama is an example of how Supreme Court justices can educate the public about the judicial process. During recent decades, Justices often have met with students, lawyers, and various civic groups to discuss a multitude of issues and subjects, including methods of constitutional interpretation, the process by which the Court selects and decides cases, and the Court’s history. These public appearances have served an important educative function and almost certainly have enhanced public respect for the Court as an institution.

All of the Justices have exhibited appropriate discretion in the vast majority of their public comments. When confronted with questions that would require them to comment on issues that might come before the Court or to speak about sensitive political issues, the Justices usually have not hesitated to decline to comment.

Roberts’ musing about whether the Justices should continue to attend State of the Union addresses is an example of the interesting issues that judges can raise when they speak in public, and his doubts about the value of such attendance deserve further consideration.

Ever since President Wilson in 1913 restored the custom of delivering the State of the Union address in person to a joint session of Congress, most members of the Court have attended nearly all of the addresses. The most notable exception occurred in 1937, when none of the Justices attended because they knew or anticipated that President Franklin D. Roosevelt would criticize the Court for its invalidation of New Deal legislation. In our own time, Justice Clarence Thomas has absented himself from State of the Union addresses because he contends that they have become too partisan. Justice Antonin Scalia also has avoided them, as did former Justice David H. Souter.

The State of the Union speech provides a unique opportunity for all three branches of the federal government to come together at one place and at one time. This annual convocation of the nation’s principal executive, legislative and judicial officials symbolizes both the unity of the federal government and the separation of its branches. But while there may be good reason to include the Justices in the joint session of Congress, there is no reason why they need to be present.

Indeed, the Constitution seems to pre-suppose their absence. Section 3 of Article II of the Constitution states that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” The Framers therefore contemplated that the President’s message would be a communication between the President and Congress rather than any communication to both the Congress and the Court. Although the language of the Constitution should not bar Congress from extending invitations to the Justices to attend the President’s address, their attendance definitely is not part of their official constitutional roles or duties.

When legislators invite Justices to attend a joint session of Congress, they should not demonstrate disrespect toward the jurists. Although Obama properly used the “bully pulpit” of his State of the Union address to call attention to his objections to a very important judicial decision and to encourage Congress to enact legislation to ameliorate some of its effects, members of Congress did not need to pop out of their seats and erupt into applause in the presence of six Justices, including several who voted to strike down the campaign finance provisions. It is understandable that Roberts did not welcome the boisterous “pep rally” that Obama’s remarks provoked among members of Congress.

Since presidents rarely criticize Supreme Court decisions in their State of the Union addresses, there is little reason for Roberts or other Justices to fear that they will suffer again any time soon the discomfort that they may have experienced during this year’s State of the Union address. Indeed, their absence from next year’s address in the wake of this year’s controversy could suggest that they were unduly sensitive toward criticism or stir rumors that they bore some kind of animosity against Obama. Let’s therefore hope that Roberts and some Associate Justices attend the State of the Union address again at least one more time.

William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include various studies of extra-judicial speech, separation of powers, and the relationship between the Supreme Court and public opinion. His website is www.williamgeorgeross.com.

A Better Course: More on the Court-martial Alternative to Military Commissions

2010-03-15T11:54:00.005-04:00

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that no matter how much the military commission system for trying detainees is modified, it will never match the legitimacy of a General Court-Martial...

I write to offer a brief supplement to Professor Paust’s provocative JURIST editorial Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees (and note that we both trace our roots back to the Army JAG Corps and now find ourselves planted in Houston!).

Like Professor Paust, I also believe that trial by court-martial is a viable alternative to trial by military commission for Guantanamo detainees. In fact, I vividly recall the day that the Department of Defense announced that it would be creating the original military commissions. I had just returned from a meeting in Bonn with our German Bundeswher counterparts to discuss cooperative security efforts in response to the threat of terrorism against U.S. forces in Germany. When my Colonel told me the news, my initial reaction was “why don’t we just try them by court-martial?” I explained to him and others in the office how the UCMJ had always vested General Courts-Martial with jurisdiction over any person who was subject to trial by military tribunal pursuant to the law of war. I also explained that while the question of whether international terrorism could properly be characterized as violations of the laws and customs of war would be complex, the answer would be dispositive to jurisdiction of either tribunal. Why, therefore, would it be in the national interest to create a new tribunal instead of relying on the well established General Court-Martial?

I was told to draft an extensive memorandum addressing these points that my Colonel submitted to The Judge Advocate General of the Army. A reply was quickly received: ‘thanks for the ideas; already considered and rejected.’ I was perplexed. Then President Bush issued Military Order #1 creating the military commissions. That cleared things up quite quickly: the last thing the Administration sought to achieve was a regularly constituted tribunal with meaningful trial procedures, rules of evidence, or appellate process.

Nine years later, much has changed. Judicial and subsequent legislative interventions have substantially enhanced the legitimacy of the military commissions. Indeed, these enhancements prevent me from concurring with Professor Paust that the current commissions are fundamentally invalid. Nonetheless, I continue to believe, as I did from the day the commissions were announced, that trial by General Court-Martial would be a better course of action for any Administration determined to rely on military courts to try these detainees, and I applaud Professor Paust for suggesting this alternative. In support of his suggestion, I offer this one observation.

Professor Paust cites two provisions of the UCMJ as potential sources of jurisdiction over detainees: Article 2(10) and Article 18. Article 18 defines offenses subject to the jurisdiction of General Courts-Martial. The first prong of that article relates back to Article 2 of the UCMJ, which defines those individuals who are “subject to the Code.” This simply means that General Courts-Martial have jurisdiction over any person Congress subjects to the proscriptions of the UCMJ in Article 2. Accordingly, trial pursuant to prong one of Article 18 would be for a violation of the domestic US military code - the UCMJ itself. In addition, the second prong of Article 18 subjects any person who violates the laws and customs of war to trial by General Courts-Martial. This jurisdiction is triggered not for a violation of the UCMJ (U.S. law), but for a violation of international law. Through the second prong of Article 18 Congress has simply provided a forum for adjudicating such violations; the same forum established for adjudicating violations of the domestic military code (the UCMJ).

There is a fundamental and critical distinction, however, between these two grants of jurisdiction. In the first instance, the accused will be tried for violation of U.S. law, and therefore must be subject to that law at the time of the offense. This is why Article 2 of the UCMJ defines who is in fact “subject to the Code.” In the second, because the accused is tried for a violation of international law, there is no requirement that he or she be “subject to the Code” at the time of the offense. Article 2 is therefore the conduit that links an individual to the proscriptive jurisdiction of the UCMJ itself.

Unsurprisingly, Congress has limited individuals “subject to the Code” to individuals with some link to the U.S. military. The most obvious category is members of the regular armed forces. But Article 2 also includes some other interesting categories, such as “persons serving with or accompanying an armed force in the field." Civilian who accompany the U.S. armed forces in the field and provide support have always been subject to the U.S. military code, a tradition traced back to the British Articles of War. When Congress enacted the UCMJ, it continued this tradition through Article 2(10). This category does not, however, provide a court-martial with jurisdiction to try civilians accompanying an opposition armed force. These individuals have no connection with the U.S. armed forces prior to capture, and therefore were not intended to fall within this category. This does not mean Congress is prohibited from extending U.S. law to such individuals for pre-capture misconduct, but that intent must be clear. There is absolutely no indication Article 2(10) was intended to have such reach. Instead, there is ample evidence that only civilians supporting the U.S. armed forces fall into this category. This was reinforced in 2006 when Congress amended the provision to eliminate an implied “declared war” qualifier, a change intended to ensure accountability for civilian contractors, not to provide jurisdiction over enemy civilians.

Does this that individuals associated with enemy forces are immune from court-martial jurisdiction? No. This is where prong two of Article 18 becomes controlling. Pursuant to Article 18, there is a critical condition precedent to the exercise of court-martial (and in my view any military) jurisdiction for pre-captured misconduct of a detainee: the U.S. must allege a violation of the laws and customs of war. This is logical, as there is no issue of the U.S. projecting its law upon individuals not yet connected to the UCMJ. It is international law – law that proscribes the conduct of all participants in armed conflict – that provides the proscriptive jurisdiction applied by the General Court-Martial.

Fidelity to the distinction between the two categories of jurisdiction established by Article 18 is essential to future legitimacy. The UCMJ includes dozens of statutory criminal proscriptions, including offenses it would be absurd to apply to an enemy operative or enemy civilian prior to capture (for example, could such a captive be tried for desertion if he surrenders to U.S. forces?). Congress did not intend those statutory proscriptions to apply to captured personnel prior to capture (although upon capture they are subject to the UCMJ); instead, it merely provided a regularly constituted and legitimate forum for adjudicating allegations of pre-capture war crimes.

I therefore agree with the outcome of Professor Paust’s calculation, although I question the ingredients. One conclusion is, however, without dispute: no matter how much the military commission is modified, it will never match the legitimacy of a General Court-Martial.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.

Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees

2010-03-12T12:55:00.006-05:00

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says regularly constituted military courts-martial could be a plausible third option for federal prosecution of members of al Qaeda and the Taliban outside of federal district courts or US military commissions.....

Where should we be trying members of al Qaeda and the Taliban? Although there has been a great deal of attention to the Obama Administration’s alleged choice between a federal district court and a suspect military commission, there has been no noticeable public discussion of the third forum for federal prosecution of members of al Qaeda and the Taliban and its advantages over military commissions – a military court-martial.

Clearly, trial in a federal district court can be useful for prosecution under various extraterritorial federal laws, such as those that cover murder of U.S. nationals abroad, attempts or conspiracy to kill a U.S. national, and serious bodily injury to a U.S. national under the Antiterrorism Act; anti-hijacking legislation; aircraft sabotage legislation; and any of the federal laws that formed the basis for the indictment in absentia of bin Laden in 2000 in the Southern District of New York. Federal district courts can also be used to prosecute offenses against the laws of war under two sets of federal legislation (1) 10 U.S.C. § 818 (which the Supreme Court has recognized with respect to similar language in its predecessor has incorporated all of the laws of war by reference as offenses against the laws of the United States) coupled with 18 U.S.C. § 3231 (which assures federal district court jurisdiction over all offenses against the laws of the United States), and (2) the War Crimes Act (which merely incorporates some law of war offenses).

Clearly also, prosecution in federal district courts would allow the United States to comply with a number of U.S. obligations under customary and treaty-based international law that the President has a constitutionally-based duty to faithfully execute and that the Supreme Court has already recognized in Hamdan v. Rumsfeld are required under international law, including the need for use of at least minimal due process guarantees under human rights law and applicable laws of war in order to have a fair trial. Fair trials would also serve short and long-term U.S. foreign policy interests and serve fundamental American values that must not be thrown aside.

Federal district court prosecutions would also allow U.S. nationals to avoid criminal and civil liability here and abroad for violations of international law that can pertain with respect to use of present military commissions. It is important to recall in this regard that Article 23(h) in the annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War recognizes the customary and treaty-based war crime of declaring “abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.” Why would the Obama Administration want to set up possible war crime responsibility for military commission judges, military and civilian judges who might review military commission proceedings, and certain members of Congress who had the relevant mens rea when creating the Military Commissions Act? Since international law is a two-way street and can shift with changing patterns of practice and opinio juris, why would the Administration potentially place our soldiers and civilians in harm’s way by approving use of military commissions that simply cannot meet present human rights and law of war standards and might simply be copied in Syria, Iran, or some other country that might obtain jurisdiction over a U.S. national in the future?

As documented in an Amicus Brief of the Human Rights Committee of the American Branch of the International Law Association before the United States Court of Military Commission Review and a prior JURIST ope-ed a military commission operating under the Military Commissions Act is actually not a lawful alternative. The military commissions are not “regularly constituted” or “previously established in accordance with pre-existing laws” and are therefore without jurisdiction under relevant international laws. The military commissions at GTMO are also not constituted within a theatre of war or war-related occupied territory and are therefore without lawful jurisdiction.

The majority opinion of Justice Stevens in Hamdan v. Rumsfeld recognized that common Article 3 of the Geneva Conventions “is applicable ... and ... requires that ... [a detainee] be tried by a ‘regularly constituted court affording all the judicial guarantees’” recognized under customary international law. As Justice Stevens noted, Article 14 of the International Covenant on Civil and Political Rights, among other instruments, sets forth “basic protections” regarding due process. Justice Stevens also noted that “regularly constituted” courts include “‘ordinary military courts’ and ‘definitely exclud[e] all special tribunals’” and that regularly constituted means “‘established and organized in accordance with the laws and procedures already in force.’” Justice Kennedy confirmed that common Article 3 applies as “binding law,” that a “regularly constituted” court “relies upon ... standards deliberated upon and chosen in advance,” and that a violation of common Article 3 is a war crime. Justice Kennedy added: “[t]he regular military courts in our system are the courts-martial” and they “provide the relevant benchmark.”

As noted in the Amicus Brief and in my book Beyond the Law, a military commission created post hoc and as a special military tribunal under the Military Commissions Act (which was not “already in force” or “chosen in advance”) simply could not meet the “regularly constituted” test and would necessarily violate common Article 3. The Amicus Brief and my book document why under venerable Supreme Court doctrine Geneva treaty-based law, other treaty law, and customary international law have primacy as law of the United States over subsequent federal legislation such as the MCA. Even if this was not the result, the type of violations of international law recognized already in Hamdan would still exist, making the United States a law violator, and would subject several of our nationals to possible criminal and civil liability abroad. Additionally, any tribunal that would only prosecute aliens would necessarily violate bilateral treaties with the state of nationality of the detainees that require equality of treatment, create a “denial of justice” for aliens under customary international law, and violate human rights law (treaty-based and customary) that requires “equality before the law” and “equal protection of the law” as well as the prohibition of national origin discrimination.

The third forum that can provide a lawful alternative in time of war over some members of al Qaeda, certain other civilians, and prisoners of war is a court-martial. Prior to 2006, 10 U.S.C. § 802(a)(10) (which is within the Uniform Code of Military Justice (UCMJ)) allowed courts-martial jurisdiction “in time of war” over “persons serving with or accompanying an armed force in the field.” In 2006, the subsection was changed to limit “time of war” to a circumstance of “declared war or a contingency operation.” Perhaps interpretation of the statutory phrase “declared war” could be stretched to include a congressionally-authorized war such as those in Afghanistan and Iraq, and the phrase “contingency operation” might be interpreted to reach military operations in those countries. This would be relevant to the reach of § 802(a)(10) after 2006, but courts-martial would be regularly constituted under previous federal law vis-a-vis members of al Qaeda or the Taliban detained after October 7, 2001 (when the U.S. was at war with the Taliban in Afghanistan) that could reach even farther prior to 2006 – to “time of war” as such. Another choice to be made would involve interpretation of the phrase “an armed force.” If it can include a Taliban armed force, some members of al Qaeda could have been serving with or accompanying such an armed force. Courts-martial also have jurisdiction over prisoners of war under § 802(a)(9) and (13) – which should include members of the regular armed forces of the Taliban, since membership is the only criterion for pow status under Article 4(A)(1) or (3) of the Geneva Prisoner of War Convention.

There are a panoply of offenses that can be tried in courts-martial under the UCMJ, including violations of the laws of war under § 818 which provides a basis for jurisdiction independent of § 802 with respect to prosecution of “any person who by the law of war is subject to trial by a military tribunal”. With respect to non-prisoners of war who are U.S. or foreign nationals, perhaps Ex parte Milligan (U.S. 1866) and Reid v. Covert (U.S. 1957) can be distinguished if merely violations of the laws of war by “enemies” are prosecuted. See Reid, 354 U.S. 1, 34 n.61 (1957); see also Ex parte Mudd (milt. comm. 1868) and United States v. Tiede (U.S. Ct. for Berlin 1979, distinguishing several Supreme Court cases). Courts-martial would be regularly constituted by previous law set forth in the UCMJ, would not present the procedural improprieties that can arise in a military commission under the MCA, and are the type of tribunal that can allow prosecution of U.S. as well as foreign nationals and avoid violations of international legal requirements of equality of treatment and equal protection of the laws.

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

Keeping America in the Dark

2010-03-10T10:42:00.002-05:00

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says a recent effort by a conservative advocacy website to besmirsch the reputations of current DOJ lawyers who previously represented detainees should not distract the US government from criminally prosecuting DOJ lawyers from the past administration who made torture possible....

I recently came across an effort by a group calling itself Keep America Safe to pressure DOJ lawyers who once represented detainees by outing them as the “Al Qaeda 9”. This new twist smacks of the “Cully” Stimson's effort in the last administration to “pressure” law firms that had lawyers working pro bono for the defense on those cases. After an uproar, Stimson resigned.

Keep America Safe and its surrogates appear to be conducting a thinly veiled effort to question the patriotism of those lawyers who represented detainees in resisting violations of the Geneva Conventions and bringing to light, in FOIA requests and litigation, the torture in the prior administration.

This kind of chilling effect on dissent from outrageous policy is nothing new under the sun. Its natural impact is to attempt to intimidate both those who take on these cases and those who would hire such people after they take on these cases, especially those entering the government to serve the public trust. Too much “controversy” about them.

A further twist is an open letter in “support” of the lawyers, recently described here. Among the signatories are a laundry list of persons who in the prior administration’s time were strong advocates for torture (whatever the euphemism used at the time). Of course, the zen of this letter is to try to put the current DOJ lawyers who defended detainees on the same level as the former DOJ lawyers who advocated for torture and thus rehabilitate the former DOJ lawyers.

Sorry folks, even here in Toledo we can see that game and it will not work. The former DOJ lawyers clearly advocated for a crime to be committed (though the OPR report glaringly did not even look at that canon of ethics in any meaningful sense). The current DOJ lawyers advocated for the defense in adversarial proceedings. These are fundamentally different animals and no effort at equivalence should be allowed to succeed to keep Americans in the dark.

Look, my fellow Americans, you either resist torture or you acquiesce to it. There is no middle ground. If you are so fearful that you are willing to think torture is OK, then you are just joining a long line of Americans in our history who in moments of hysteria were willing to give up everything. If you are, like the top military JAG officers in that time, willing to see the detrimental consequences of torture for America and that a state crime was committed, then I would ask that you stand with people like me and seek the criminal prosecution of the DOJ lawyers from the past administration so we can wash our very dirty laundry here at home rather than in some court overseas in Spain.

I recognize the effort to get you to acquiesce to torture is sophisticated and relentless. That is what people who advocate for torture do to avoid a day of reckoning in court. And those who you do not see named are the high-level civilians who were pushing for torture in the NSC Principals, the White House, and Congress. These persons have a stake in Americans not being aware of what they really did and also in not having what they did – whether Democrat or Republican – brought out for the world to see. I would even wager that there are leaders or former leaders of other countries that helped us who do not want to see their efforts to support torture come out in the public.

But so what for the egos and reputations of these people? They besmirched their reputations by putting torture in place, by perverting our soldiers to do their bidding, and then letting the grunts at the bottom take the fall when the Abu Ghraib scandal erupted.

They are perfectly willing to instrumentalize anything, anything to prevent themselves from being prosecuted. Do not let yourself be kept in the dark. Ask for light to be brought in the cold brilliance of a court room. It may not be good politics for this or that administration, but it would be a good thing for America. When it comes out we will all know who was quiet and who took a stand against torture. And that is the choice each American has to make when the forces are attempting to spin the problem into something else so that we sweep this all under the rug.

This is not going under a rug. Not if I can help it.

Benjamin Davis is a professor at the University of Toledo College of Law

Panic Legislation: The Wrong Response

2010-03-08T10:50:00.011-05:00

JURIST Guest Columnist Amos Guiora of the University of Utah College of Law says that the McCain-Lieberman military detention bill recently introduced in the Senate is yet another unfortunate instance of US national security legislation being driven by panic instead of principle.....

The "Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010," introduced last Thursday by Senator John McCain and Senator Joseph Lieberman, is but the latest example of panic-based legislation. As the debate over where to try terrorists intensifies in the wake of the attempted Detroit airplane bombing and the Obama Administration’s announcement that it is going to reconsider its decision to try those responsible for 9/11 in federal court, it is clear that panic is once more driving policy.

The proposed bill mandates that any person detained on suspicion of terrorist acts or material support for terrorism be placed in military custody. The detainee will not be entitled to Miranda rights and will remain in detention – and can be interrogated – while the Executive Branch makes a status determination. If determined to be an unprivileged enemy belligerent, the detainee will be held until the end of hostilities. Needless to say, unlike the POW in the war paradigm, for detainees, end of hostilities in the terrorism paradigm is a euphemism for ‘indefinite detention’.

The legislation’s panic response can be seen not only in the due process and rights denied, but in the categories of persons it addresses. By encompassing those suspected of material support for terrorism – a federal crime indeed but never part of the law of war – the bill subjects an extraordinarily broad group of persons to indefinite detention.

The proposed legislation’s impact would be a fundamental miscarriage of justice created by the unconstitutional denial of the right to counsel, the right to remain silent, the right to be free from arbitrary, let alone indefinite detention, and the right to a day in court.

Past practice in the US and abroad demonstrates, unfortunately, that panic and the desire to respond plays a dominant role over legitimate national security interests, respect for constitutional and international law considerations and careful analysis of the threat posed. That is, the response becomes what is important; its legitimacy and justification take a back seat. While terrorism poses a threat, that threat does not justify throwing our principles out the door in panic.

After the December 13, 2001 attack on the Indian parliament, the Prevention of Terrorism Act (POTA) created an overly broad definition of terrorism, and provided for detention of suspects for up to three months without charge. On September 17, 2004, the new elected Indian government of Prime Minister Manmohan Singh announced that it would honor its election pledge to repeal the POTA, which dispensed with the presumption of innocence, allowed the compulsory denial of bail, and enabled the admissibility of confessions despite the rampant use of torture and coercion by police and security forces.

In the aftermath of the Passover eve bombing in Netanya, Israel, considered one of the worst terrorist attack in the nation’s history, Israel extended the time for detention of Palestinians suspected of involvement in terrorism to 18 days without judicial review. In striking down the law, the High Court of Justice made two key observations. First, the legislation was a classic example of a short-term response that did not address the long-term impact or issues of morality and legality. Second, democracies must adopt self-imposed restraints, recognizing that they must fight terrorism with “one arm behind their backs.”

Republicans and Democrats alike have failed to articulate, create and implement a lawful interrogation, detention and trial regime for post-9/11 detainees. That is shameful and reflects negatively on two Presidents, the Congress and the Supreme Court.

The real issue runs deeper: how does American society define itself in the context of terrorism – by the rule of law or the rule of fear? The proposed McCain-Lieberman bill suggests a problematic stop-gap measure that significantly violates the rights of suspects. The examples from India and Israel highlight the danger of panic legislation, ultimately overturned.

Although we must address - and resolve – the trinity of detention, interrogation and trial, discarding core principles is not the way. I have proposed the establishment of national security court in conjunction with Miranda guarantees for detainees. A protectionless interrogation regime predicated on indefinite detention does not contribute to counterterrorism. All it does is reflect panic. That has not worked before – why should it work now?

Amos N. Guiora is Professor of Law at SJ Quinney College of Law, the University of Utah; his latest book is Freedom from Religion: Rights and National Security (Oxford University Press, 2009).

The Qom Enrichment Facility: Was Iran Legally Bound to Disclose?

2010-03-05T10:50:00.005-05:00

JURIST Guest Columnist Daniel Joyner of the University of Alabama School of Law says that, reflective of the central tension between nonproliferation and peaceful use, Iran has not clearly violated any legal obligations incumbent upon it in the timing of its disclosure of the existence of an intended uranium enrichment facility at Qom....

Since Iran’s disclosure of the existence of its intended uranium enrichment facility at Qom in September 2009, one of the points of debate among international observers has been whether in the timing of this disclosure, Iran violated its obligations under its legal agreements with the International Atomic Energy Agency (IAEA).

Iran argues that its disclosure was perfectly consistent with its legal obligations under its Safeguards Agreement with the IAEA (INFCIRC/214), as implemented through a Subsidiary Arrangements agreement which Iran entered into with the IAEA in 1976.[1] Under the provisions of this Subsidiary Arrangements agreement known as “Code 3.1,” Iran argues that it is only obligated to disclose the existence of new enrichment facilities “normally not later than 180 days before the facility is scheduled to receive nuclear material for the first time.”

In an opinion piece on the Carnegie Endowment’s website, however, James Acton has made the case that Iran did in fact violate its international obligations by not disclosing the existence of the Qom facility earlier.[2] He argues that Iran agreed by exchange of letters with the IAEA in 2003 to a new and revised set of Subsidiary Arrangements, known as “modified Code 3.1,” which provide that preliminary design information on new enrichment facilities is to be provided “as soon as the decision to construct or to authorize construction has been taken, whichever is earlier.”

The crux of the dispute regarding which of the versions of Code 3.1 is applicable to Iran’s actions in and around September 2009 centers on Iran’s March 29th, 2007 letter to the IAEA in which Iran declared its intention to “revert” to the original 1976 Code 3.1 formulation. The IAEA Legal Advisor's office issued an opinion in March 2009 in which it rejected Iran’s unilateral declaration of reversion, and maintained that the agreed modified Code 3.1 provisions remained in force between Iran and the IAEA. As the Legal Advisor’s office concluded:

The implementation of the provisions of Subsidiary Arrangements can only be amended or suspended with the agreement of both parties to them. . . The provisions cannot be amended or suspended unilaterally by the state. Thus Iran’s failure to provide design information in accordance with the modified Code 3.1 as agreed to by Iran in 2003 is inconsistent with Iran’s obligations under the Subsidiary Arrangements to its Safeguards Agreement.

This statement by the IAEA Legal Advisor's office is generally in harmony with Articles 54-58 of the 1969 Vienna Convention on the Law of Treaties, which address the termination or suspension of treaties. Pursuant to these rules, a bilateral treaty without an explicit termination or suspension provision normally cannot be terminated or suspended unilaterally by one party to it.

However, all of this analysis by the IAEA Legal Advisor’s office, and by commentators like James Acton, assumes that the Subsidiary Arrangements agreement is in fact a treaty, or a legally binding agreement in and of itself, and is thus on par with the Safeguards Agreement. But this is not clearly the case.

Article 39 of Iran’s Safeguards Agreement with the IAEA provides that “The Government of Iran and the Agency shall make Subsidiary Arrangements which shall specify in detail, to the extent necessary to permit the Agency to fulfill its responsibilities under this Agreement in an effective and efficient manner, how the procedures laid down in this Agreement are to be applied.” From this mention alone, it is not at all clear that the subsidiary arrangements to be subsequently concluded between Iran and the IAEA in order to implement the Safeguards Agreement are conceived of by the parties as constituting a treaty.

While terminology is not per se dispositive of legal character, the term “arrangements” is not one of the terms commonly employed by international lawyers to denote a legally binding treaty. It is more commonly used to refer to non-binding international accords, such as the Basel I & II standards issued by the Basel Committee on Banking Supervision, or the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe.

The dispositive test for determining whether an international agreement is a legally binding treaty is found in Articles 11-17 of the 1969 Vienna Convention on the Law of Treaties. Essentially this test boils down to the intent of the parties. If the parties to an agreement intend that agreement to constitute a legally binding treaty, and if that intention is manifest through the forms and procedures for concluding the agreement, then the agreement is legally binding. However, if that intent cannot be found manifest in the forms of concluding the agreement, the agreement is not legally binding, and is simply an accord or understanding between two parties.

Looking at the provisions of Iran’s Safeguards Agreement, it is manifestly clear that the Safeguards Agreement itself was intended to be a treaty. Its entry into force as a legally binding instrument is expressly contemplated by the parties in Article 25 of the agreement. As Article 25 states:

This Agreement shall enter into force on the date upon which the Agency receives from the Government of Iran written notification that Iran’s statutory and constitutional requirements for entry into force have been met.

Furthermore, amendments to the Safeguards Agreement are provided in Article 24 only to enter into force upon conclusion of the same procedure, i.e. upon notification that the amendment has been accepted by the domestic lawmaking authorities in Iran. This formal process involving the acceptance of the agreement by domestic authorities is consistent with a manifestation of intent by Iran and the IAEA that the Safeguards Agreement itself is to be considered a legally binding instrument. Indeed, according to Article 77 of Iran’s Constitution, "International treaties, protocols, contracts, and agreements must be approved by the by the Islamic Consultative Assembly." Mindful of this limitation on their domestic authority, Iranian negotiators would have been sure to require this domestic approval as a prerequisite for the entry into force of any legally binding treaty or amendment thereto.

However, with regard to Subsidiary Arrangements, the Safeguards Agreement states in Article 39 that “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of the Agreement.” While Article 40 of the Safeguards Agreement mentions the entry into force of the Subsidiary Arrangements, it gives no specifications on the process by which such entry into force is to be accomplished. This absence of specification regarding the process for entry into force of the Subsidiary Arrangements, in light of the detailed specification of the process for entry into force of the Safeguards Agreement and amendments to it, including the constitutionally required consent of the Iranian domestic lawmaking institutions, is probative textual evidence that Iran did not intend for the Subsidiary Arrangements to be legally binding per se. Rather, the Subsidiary Arrangements would appear to be more accurately characterized as agreed guidelines or understandings for implementation of the Safeguards Agreement by the parties, of a non-binding legal character.

Again, not all international agreements are treaties. States and other holders of international legal personality very frequently choose to conclude international agreements on a non-legally-binding basis. This is particularly true when the subject of the agreements is detailed and technical, and/or subject to foreseeable change over time in light of technological and other circumstantial dynamics. States do this for many reasons, including so that they do not have to seek the consent of their domestic lawmaking authorities for changes to such relatively minor agreements whenever they are needed.

It is, unfortunately, not possible for international observers generally to analyze either the Subsidiary Arrangements agreement between Iran and the IAEA, or the 1976, 2003, and 2007 letters exchanged between Iran and the IAEA relative to the Subsidiary Arrangements, as these documents have not been made public by the parties. This is unfortunate because these documents would provide important additional evidence regarding the intent of the parties. However, the text of the Safeguards Agreement between Iran and the IAEA seems to indicate that the Safeguards Agreement itself, which established the broad contours of the agreement between Iran and the IAEA, was intended to be a legally binding treaty, but that the Subsidiary Arrangements which were to follow by agreement between Iran and the IAEA were likely intended, at least by Iran, to comprise non-binding guidelines for implementation of the treaty, which could be modified by simple agreement between Iranian officials and IAEA officials without the requirement of consent from Iran’s domestic lawmaking authorities.

If this analysis is correct, neither Code 3.1 nor modified Code 3.1 of the Subsidiary Arrangements would constitute an international legal obligation. Thus, it would not be possible for Iran to have breached any such obligation by the timing of its disclosure regarding the existence of the Qom facility.

If the various Subsidiary Arrangements agreements between Iran and the IAEA were in fact non-legally-binding in character, the only legal obligation with regard to the disclosure of design details for enrichment facilities incumbent upon Iran would be the provision in Article 42 of its Safeguards Agreement which states that “such information shall be provided as early as possible before nuclear material is introduced into a new facility.”

It is uncontested that no nuclear material had, as of September 2009, been introduced into the Qom facility. Indeed, no centrifuges had at that time been installed in the facility. Thus, again if the analysis presented herein is correct, Iran’s September 2009 disclosure of the existence of the facility to the IAEA would indeed have been consistent with all applicable legal obligations contained in its agreements with the IAEA.

It is likely impossible for general international observers to make a final determination of the legality of Iran’s disclosure of the Qom facility due to the closed source nature of several of the primary documents relevant to this analysis. However, from an analysis of the sources that are open to general review, and in particular the Safeguards Agreement itself which is the only source clearly comprising legal obligations for Iran regarding the disclosure of enrichment facilities, it is not at all clear that Iran violated any legal obligations incumbent upon it in the timing of its Qom declaration.

So what does this legal analysis mean for the relationship between Iran and the West/Israel going forward? It may serve as an illustration of the intelligence and diplomatic savvy of Iranian leaders, and their ability to go right up to the line of Iran’s treaty obligations without clearly crossing over it, and thereby deny the members of the Security Council, and Israel in particular, clear justification to significantly increase economic pressure on Iran or act militarily against it. If Iran continues this strategy of legal brinksmanship, it could even potentially achieve a viable nuclear hedging position without formally breaching its Non-Proliferation Treaty (NPT) and Safeguards Agreement legal obligations.[3]

If this is Iran’s intention, the fact that it can do so within its nonproliferation treaty obligations is a cause for concern.[4] Indeed, some have termed this ability of NPT Non-Nuclear Weapon States parties to achieve a nuclear breakout capability, while remaining formally compliant with the NPT and their Safeguards Agreement obligations, a “loophole” in the NPT normative regime.[5] In the end, however, this “loophole” has much more to do with the fundamentally dual use nature of fissile materials, and the complex reflection of this reality in the grand bargain codified by the NPT, than with poor drafting of the NPT itself. This central tension between nonproliferation and peaceful use, as well as the related tensions between these principles and the principle of disarmament, make for a thoroughly bedeviling issue area for international legal regulation. But that is the nature of the nuclear beast.

Notes

[1] "IAEA: Iran Broke Law by Not Revealing Nuclear Facility,” CNN.com, September 30, 2009

[2] “Iran Violated International Obligations on Qom Facility.” Available at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=23884

[3] Nuclear hedging means having the capacity to produce a sufficient amount of weapons grade fissile material, and the knowledge and capability to manufacture the warhead hardware of a nuclear weapon, possibly in a matter of weeks once the political decision to construct a weapon has been made. See Ariel Levite, Never Say Never Again: Nuclear Reversal Revisited, INTERNATIONAL SECURITY, Volume 27.3, Pgs. 59-88 (2002-2003).

[4] Iran is currently in violation of U.N. Security Council resolutions, including Resolution 1696 which ordered Iran to cease its uranium enrichment activities. For more on this aspect of the legal situation, see Daniel H. Joyner, INTERNATIONAL LAW AND THE PROLIFERATION OF WEAPONS OF MASS DESTRUCTION, Pg. 50 (2009).

[5] Joseph Pilat, Introduction, in Joseph Pilat, ed., ATOMS FOR PEACE: A FUTURE AFTER FIFTY YEARS?, Pg. 4 (2007).

Daniel Joyner is an Associate Professor at the University of Alabama School of Law, where he writes and researches in the area of proliferation studies. He is the author of International law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009)

Defining Democracy in Iraq

2010-03-04T15:50:00.004-05:00

JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that while democracy in Iraq may look one way in second Iraqi general election on Sunday, it may evolve to look very different when the next election cycle rolls around and the American troops are gone...

American Ambassador Christopher Hill said this coming Sunday’s general election in Iraq will “determine the quality of Iraqi democracy.” His frank statement in an interview with NPR’s Tom Ashbrook begs the question: who exactly determines the quality of Iraqi democracy? Is there a fixed standard? Not to my knowledge. True, the general election in Iraq will seat a new government that is selected by the people at large. In that sense, democracy is achieved. The level of violence that accompanies the process and the degree of public acceptance of the results is probably what Ambassador Hill is referring to – less violence and more acceptance equals higher quality of democracy. So stability seems to be a key benchmark for determining a democracy’s maturity. This is only Iraq’s second general election. Isn’t that a bit unrealistic? The country is still occupied by U.S. forces and remains largely split along sectarian lines (Sunni Kurds, Sunni Arabs and Shiite Arabs).

Webster’s authoritatively defines democracy as “a: government by the people; especially: rule of the majority b: a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” The Oxford English Dictionary offers a more egalitarian version: “Government by the people; that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them. In modern use often more vaguely denoting a social state in which all have equal rights, without hereditary or arbitrary differences of rank or privilege.”

Those who seek to define “democracy” face the same inherently inescapable dilemma as those who seek to define “terrorism.” Experiential and perspective-laden differences yield a general lack of agreement. How, then, can we prescribe democracy as the antidote for what ails all societies? As Iraqis go the polls on Sunday, the casual observer might pause to ponder that question. The U.S. was roundly criticized for attempting to deliver democracy to the Middle East at the end of a rifle barrel – both in Iraq and Afghanistan. The corrupt government of Hamid Karzai in Afghanistan, recently re-elected, but supported by drug money and warlords, is hardly a poster-child for democracy. Yet the impulse to provide for self-determination of peoples, noble as it is, remains strong.

So which version of democracy is right for a complex society like Iraq? They currently use a parliamentary democratic structure within a nominally federal system. Power distribution runs along ethnic/religious lines so that the president, the prime minister and the speaker are never of the same ethnic/religious sector. The current distribution places a Sunni Kurd as president, a Shiite Arab as prime minister, and a Sunni Arab as speaker. The models that states can use for democracy are varied – from presidential to parliamentarian. And they can exist within unitary or federal structures. Indeed, recent history has seen the advent of new descriptors such as “-style” democracies: western-style democracy rests atop a foundation of civil society and the rule of law, Latin-style democracy is more fluid yet subject to sudden economic and military disruptions, African-style democracy is chaotic, tribal, and often relies on local strongmen, and of course Russian or Chinese-style democracy isn’t democracy at all.

Western states argue that what’s missing from these less stable forms of democracy is the healthy degree of civil society and respect for the rule of law that buttresses Western systems. And they have a point. But those societies place a high priority on such values. Inculcating similar priorities in dissimilar societies is problematic. Without such values, democratic elections can produce non-democratic results (e.g. the national socialists in Germany – 1933, or Hamas in Palestine – 2006, or Russia today) – proving Fareed Zakaria’s central point in The Future of Freedom: Illiberal Democracy at Home & Abroad that elections, in and of themselves, do not democracies make.

So is this a reflection of who is ready for democracy and who is not? According to many international law scholars and the human rights community, democracy is a right accorded to everyone on the planet. That’s a fine ideal, and one that I certainly sympathize with. People should have the right to self-determine in both the systemic sense and the larger Wilsonian sense. But the real world offers divergent and sometimes discouraging examples. Was the Belgian Congo ready for democracy when King Leopold quit the Dark Continent in 1960? Or India and Pakistan when King George VI withdrew from the British Raj in 1947? No. Massive social cleavages sometimes result and no one can predict when and whether democracy will take root, let alone in what form or for how long. India has since become a model of democratic ideals, Pakistan much less so. Congo remains a disaster.

Moreover, while democracy in Iraq may look one way in this second general election on Sunday, it may evolve to look very different when the next election cycle rolls around and the American troops are gone. Democracy is not static. It is perhaps more situational. Prime Minister Nouri al-Maliki complained this week about massive amounts of foreign money coming into the campaigns from Iran and Saudi Arabia in an attempt to influence the outcome of the election. Perhaps this same dynamic will play out in the United States in our November 2010 mid-term elections, given the Supreme Court’s recent ruling in Citizens United freeing up corporate campaign contributions, with Exxon and Microsoft playing the role of the Iranians and Saudis? Ambassador Hill will be watching the Iraqi elections on Sunday to “determine the quality of Iraqi democracy,” but many will also likely have to do a bit of navel-gazing here in the U.S. come November.

Michael J. Kelly is Professor of Law and Associate Dean for Faculty Research & International Programs at Creighton University in Omaha, Nebraska. He served as Chair of the Association of American Law Schools Section on National Security Law in 2009-2010, and is the author of Ghosts of Halabja: Saddam Hussein & the Kurdish Genocide (2008).

Japanese Whaling: When Diplomacy Fails, Call the ICJ

2010-03-03T09:38:00.000-05:00

JURIST Guest Columnist Don Rothwell of Australian National University College of Law says that in the context of unpromising diplomatic negotiations between Japan and Australia with regard to Japanese whaling in the Southern Ocean area, the Australian government will likely be left with no choice but to file suit against Japan in the International Court of Justice....

After more than 20 years of diplomatic confrontation over Japan’s Southern Ocean whaling program, Australia has finally set a deadline for the Japanese to cease all whaling by the start of the 2010-11 whaling season or otherwise prepare to front up to the International Court of Justice (ICJ). Australia’s position was outlined by Prime Minister Kevin Rudd when on 19 February he stated on national television that “what we’re putting to the Japanese is to take where they are now, which is the slaughter of some hundreds of whales each year and reduce that to zero. If we don’t get that as a diplomatic agreement … we’ll be going to the International Court of Justice.” Rudd set the deadline for a Japanese reduction of the whale catch to zero by November 2010, just before the start of the annual Japanese Southern Ocean whaling season.

How has it come to this? To a degree, the seeds for the current dispute were sown in 1977 when the Liberal Coalition Government of Malcom Fraser took the then courageous step of banning all commercial whaling in Australian waters. Australia then commenced an international campaign alongside other conservation minded countries to halt commercial whaling and found success in the International Whaling Commission which endorsed a moratorium on commercial whaling that took effect in 1985-86. In response Japan commenced its first scientific whaling program in the Southern Ocean – known as JARPA – which ran until 2005 and which focused on an annual take of between 300-450 minke whales. For the 2005-06 Antarctic season, Japan announced it was commencing JARPA II which effectively doubled the annual take of whales to 950 including minke whales and a small number of threatened and endangered fin and humpback whales. JAPRA II became operational from the 2007-08 season and whilst the take of humpbacks was suspended as a result of diplomatic intervention by the US, hunting for minke and fin whales has continued.

Maintaining the moratorium on commercial whaling has virtually became a bipartisan article of faith for Australian governments since 1986, and while Iceland and Norway have sought to avoid the ban, Japan has come under particular scrutiny because its Southern Ocean whaling is effectively seen as being in Australia’s backyard. The declaration of an Australian Whale Sanctuary, which prohibits whaling out to 200 miles from the mainland, offshore islands, and the Australian Antarctic Territory, has given the issue further prominence. Notwithstanding a 2008 Australian Federal Court ruling that Japan’s actions were illegal under Australian law, the Japanese have defied the court orders insisting that as they do not recognize Australia’s Antarctic claim, they are not bound to respect Australian law. The Rudd government, not wanting to risk a challenge to Australian sovereignty over Antarctica, has not actively pursued enforcement of these court orders.

In response to these developments, the International Fund for Animal Welfare (IFAW) commissioned several legal advices which were provided first to the Howard and then to the Rudd government outlining international legal arguments which could be mounted to halt the Japanese whaling program. At the core of these legal opinions was that Japan’s interpretation of the 1946 International Convention for the Regulation of Whaling allowing for ‘special permit’ scientific research whaling was an abuse of right and inconsistent with Article 8 of the Convention. If the ICJ option was pursued it was recommended that Australia first seek provisional measures to immediately halt the Japanese hunt until such time as the court rules on the merits.

The election of the Rudd Labor government in November 2007 brought great expectations that Australia would pursue these legal options; however, diplomatic options were initially favored. Mindful perhaps of the implications for the future of the International Whaling Commission, Australia brought forward an ambitious reform agenda seeking to place significant constraints on the unilateral special permit Japanese whaling program. At the 2008 IWC meeting this agenda gained traction, but since then has become bogged down in endless diplomatic wrangling. A March 2010 IWC inter-sessional meeting planned for Florida may provide some indication as to where this reform agenda is heading, but Prime Minister Rudd’s recent comments suggest the Australian government has had enough of Japan’s failure to engage in this process in good faith. Given the nature of IWC politics and procedure, the June 2010 IWC annual meeting in Morocco looms as the decisive moment for assessing whether a diplomatic breakthrough is possible.

Japan’s Foreign Minister, Katsuya Okada, recently visited Australia for bilateral talks. There was a polite agreement-to-disagree over whaling and a commitment from both governments to try and ensure that the whaling dispute would not derail what are otherwise excellent bilateral relations. Okada said that Japan seeks “a diplomatic solution to this issue through understanding of culture and position of each party”. However, these statements fail to appreciate that Japan’s actions on whaling run counter to the spirit of a global moratorium on commercial whaling, and its JARPA II program has only heightened suspicions that Japan is actually engaging in a form of commercial and not scientific whaling. It is beginning to look increasingly likely that Australia will finally call Japan’s bluff and politely say “see you in court.”

Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. In November 2006 he chaired the Report of the Sydney Panel of Independent International Legal Experts on Japan’s Special Permit (“Scientific”) Whaling Under International Law, and in November 2008 chaired the Canberra Panel addressing the same issue.

Learning from Toyota's Troubles - Where's the Board?

2010-02-23T07:13:00.002-05:00

JURIST Guest Columnist Bruce Aronson of Creighton University School of Law says that Japanese automobile manufacturer Toyota's current safety crisis - now the subject of Congressional hearings - should prompt the company to address its seriously flawed system of governance more than just its public image....

The next phase in Toyota’s crisis will be the appearance of the President of Toyota Motor Corporation, Akio Toyoda, before the House Committee on Oversight and Government Reform on February 24th.

His message will likely reflect an opinion he published in the Washington Post on February 9th entitled “Toyota’s Plan to Repair its Public Image.”

In it he outlines a number of steps he is taking to address Toyota’s current crisis, including internal and external reviews of operations and quality controls, more vigorous investigation of consumer complaints, more effective internal sharing of information, and better communications with regulators.

Conspicuously absent from this list of worthy measures is any mention of the role of the board of directors in corporate governance. The structure and function of a typical Japanese corporate board reinforces the penchant for corporate secrecy in Japan, which is often cited as a cause of Toyota’s problems.

In both the United States and Japan, the board of directors has a legally mandated function to ensure a corporation’s compliance with law. In both countries, case law provides that directors have a duty of oversight—as part of their fiduciary duties owed to the corporation and its shareholders—to establish and monitor an information and reporting system designed to ensure such compliance. In the United States the duty of oversight in Delaware stems from the well-known Caremark decision, while in Japan it results from a shareholder derivative suit related to the $1.1 billion trading loss scandal in Daiwa Bank’s New York branch in 1995 (see my law review article analyzing this case and its impact in Japan). Statutes in both countries also provide for broader systems of internal controls. In this case Toyota’s systems failed badly.

In Japan the legal duty of oversight often clashes with the traditional structure of Japanese boards—large, hierarchical boards in which directors are all insiders and retain “line” management responsibilities. As a result, any problem can appear to be limited to the director(s) “in charge” of a particular area despite the common fiduciary duty owed by each director.

The Toyota case is particularly interesting because Toyota has been held out in Japan as the prime example of the strength of this “traditional” system of Japanese corporate governance. This system relies on competition in product markets, team production alliances with suppliers, and “main banks” to monitor the performance of corporate management, as opposed to “Western” approaches such as independent directors and a market for corporate control.

A “Western” approach appeared in Japan in 2002 as part of an ongoing debate on reform of corporate governance following Japan’s “lost decade” of the 1990s. An amendment to Japan’s corporate law at that time provided Japanese companies with an option to replace their German-inspired, traditional positions of representative director (a director chosen by the board to represent the corporation, much like a president) and internal corporate auditor (elected by shareholders to monitor directors’ performance) with an “American-style” system of executive officers and board committees with independent directors. Not many Japanese companies have adopted this new system, although the number is slowly increasing.

Until recently the Japanese often contrasted the success of Toyota, the champion of traditional Japanese governance, with the poor performance of Sony, which adopted the “American-style” board committee system and now has a foreigner as its CEO. This popular comparison was always somewhat exaggerated. For example, in 2003 Toyota modified its system through the introduction of “non-board managing officers” and a reduction in the number of directors on its board (from over 40 to 29). However, even today every area of the company is represented by a senior manager on the board of directors and there are no outside directors. Given Toyota’s current problems and its prominence, it will be interesting to see if other Japanese companies will now reconsider this traditional system and incorporate a greater element of independent monitoring of management.

This is not to suggest that the apparent downfall of Toyota condemns the entire system of Japanese corporate governance. Every system has its corporate scandals. The result of scandals such as Enron in the United States has been an even greater emphasis on independent directors in the Sarbanes-Oxley Act and elsewhere. Such measures were not effective in preventing new scandals, such as those accompanying the financial crisis of 2008. For example, one oft-cited weakness at Citigroup was the board’s lack of industry expertise and experience, and its resulting inability to monitor traders’ risk management practices concerning complex financial products.

Nevertheless, Toyota’s response to its current troubles is striking because it has maintained its rather narrow emphasis on manufacturing quality and production issues in the face of a full-fledged crisis. A problem of this magnitude is not simply a matter of a technical fix or of repairing Toyota’s public image. There were also significant flaws in Toyota’s governance system. Perhaps Mr. Toyoda and his colleagues should also consider a plan for a greater role of the board of directors, compliance with law, and corporate governance issues within “the Toyota Way.”

The House Oversight Committee might even be interested in hearing about it.

Bruce Aronson is Associate Professor at Creighton University School of Law and was formerly a practicing attorney who represented Japanese clients.

SCOTUS Memo: Challenging the 'Material Support' Laws

2010-02-22T12:37:00.000-05:00

JURIST Special Guest Columnists Sharon Bradford Franklin, senior counsel at the Constitution Project, and Karen Bloom, legal fellow with the Constitution Project, say that the US Supreme Court's decision in the upcoming Holder v. Humanitarian Law Project case challenging the constitutionality of laws prohibiting “material support” to terrorist groups may have serious implications for our First Amendment protections....

Would you consider any of the following to be criminal acts: advocating non-violent means of resolving conflicts, teaching English, educating a group about its humanitarian obligations, or providing legal services?

They might be, if the U.S. Supreme Court upholds the current form of federal laws prohibiting “material support” to terrorist groups. On February 23rd, the Court is scheduled to hear oral argument in Holder v. Humanitarian Law Project, a case which challenges the constitutionality of certain provisions of these laws. Under those provisions, it is a criminal act to provide services, training, expert advice or assistance, or personnel to groups the government has designated as “terrorist.”

Although the material support statutes provide an important counter-terrorism tool, the existing law is so broad that the government has essentially maintained that all acts in support of designated organizations further their terrorist ends and are impermissible. As such, even humanitarian organizations’ attempts to convince the designated groups to abandon violent tactics in pursuit of peace could be found to violate the laws.

In addition to being vague and over-broad, the “material support” laws also run afoul of the First Amendment because they restrict association rights and discriminate between types of speech. For example, providing religious materials (even if they are intended to further terrorist activity) is exempted from the prohibitions, but all provision of political aid (even if it is designed to counter-terrorism and promote peace) is prohibited.

The district court and Court of Appeals that heard this case on its way to the Supreme Court recognized the constitutional problems with the “material support” laws. Both courts ruled that parts of the “material support” laws are unconstitutional in certain contexts because they could cover activities protected by the First Amendment.

Nevertheless, the government maintains that the broad prohibition is necessary to its counter-terrorism efforts. Without question, cutting off support for terrorist activity is an essential part of the U.S.’s counter-terrorism strategy. Our government must have the tools needed to apprehend and punish those who work to facilitate and enable acts of terrorism, not just terrorist leaders. However, in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms.

Moreover, criminalizing even attempts to discourage the terrorist activities of designated groups not only violates the Constitution, but is counter-productive. Outlawing the very advocacy that is most likely to neutralize the threat of groups designated as “terrorist” undermines, rather than advancing, our counter-terrorism objectives.

To address these issues, late last year the Constitution Project’s bipartisan Liberty and Security Committee proposed a series of reforms to the “material support” laws that would better tailor them to our counter-terrorism objectives and would ensure that they do not violate fundamental constitutional rights. The consensus recommendations of this Committee, which is composed of prominent policy experts, former government officials, and legal scholars from across the political spectrum, are contained in its report, Reforming the Material Support Laws: Constitutional Concerns Presented by Prohibitions on Material Support to “Terrorist Organizations.”

The Committee, among other proposals, called on Congress to (1) provide that pure speech may be punished only if it intended to further illegal conduct, and (2) exempt from the definition of “material support” humanitarian aid items such as medical services, civilian public health services and—if provided to noncombatants—food, water, clothing and shelter. Based upon this report, the Constitution Project filed an amicus brief in the Supreme Court in the Humanitarian Law Project case, arguing that the challenged provisions of the material support statute chill free speech and association in violation of the First Amendment.

The Committee’s proposals would go a long way toward making clear that counter-terrorism initiatives must not overstep constitutional restrictions and to ensure that the “material support” laws do not infringe on First Amendment rights. As the Constitution Project urged in its amicus brief, the Court should strike down the challenged provisions as unconstitutional. And hopefully Congress will soon revisit and revise the “material support” laws to address the remaining constitutional flaws not at issue in the Humanitarian Law Project case.

Sharon Bradford Franklin is senior counsel at the Constitution Project in Washington DC. Karen Bloom is a legal fellow with the Project.

The Yoo/Bybee Report: Let a Jury Decide

2010-02-21T04:03:00.001-05:00

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the guilt or innocence of "enhanced interrogation" memo writers John Yoo and Jay Bybee should be determined in state or federal court by a jury of their peers, rather than under the forgiving gaze of the Office of Professional Responsibility....

The long awaited Office of Professional Responsibility (OPR) report on Jay Bybee and John Yoo was released yesterday. In the long cover memo, the US Department of Justice (DOJ) reviewer went to great lengths to explain his decision not to support the intentional misconduct (for Yoo) and misconduct (for Bybee) recommendations of the OPR and not to make a referral to the Bar Associations. At the same time, he leaves the matter up to the Bar Associations to decide whether they should take up the matter.

As happens, I was recently at a National Security Court conference held here at the University of Toledo College of Law at which torture was brought up and discussed. We were favored with the presence of Mr. John Rizzo, former Acting General Counsel of the CIA who just retired after 34 years of service. When questioned on the repeated water-boarding of Khalid Sheik Mohammed, Mr. Rizzo presented the matter (I am paraphrasing) as being one where the people in the agency said that they thought they needed to do these things and that it may be morally wrong but this was the situation.

I spoke from the floor saying that the problem was that some smart lawyers were made to reinterpret various laws and treaties and that based on this we got into this huge mess, and now some people are trying to deal with that by creating a new national security court as a new solution to the mess that has been created. This is an old game with the United States government. Sometimes it is followed by an apology 50 years later or so. I suggested the following plan of action: 1) criminally prosecute the torturers; 2) bring all of these cases we want to try in Article III courts which provide us with transparency; and 3) after we clean that up- look at what we need to do to change. I was met with the view that this is an old argument and that we should move beyond that.

I am just a citizen and I am exercising my little bit of sovereignty in a representational democracy – something I like to call “The Sparkle of Sovereignty.” I am even writing a book about that idea.

My view is that a wide variety of groups of concerned American citizens exercising their respective sparkles of sovereignty should refer the OPR report immediately to the relevant bar associations to determine whether there were ethical violations by Yoo and Bybee.

Beyond that, here is a radical concept for all these DOJ types: let a jury decide. I trust in twelve American jurors weighing the evidence competently presented by a US Attorney, and Yoo and Bybee being represented by competent defense attorneys in 1) an Article III court based on a federal prosecution by a special prosecutor or a state prosecutor pursuant to a federal officer removal act proceeding from state court or 2) in a state court to be able to examine whether these persons have the requisite mens rea and actus reus to have violated federal law and/or state law with regard to torture.

I think it is important in our system of separation of powers and federalism to provide the double security to the protection of the rights of the people so cherished by James Madison in the Federalist Papers. Madison wrote:

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Federalist No. 51 (James Madison)

Within the federal government, it appears clear that DOJ officials tend to have a terrible time handling the pressure as they move up the hierarchy. As one person quoted in the report says, “we freaked out.” As an American citizen, I do not want the people who are subject to the public trust “freaking out” like some fifth grader. During 9/11 I was teaching a class and while there were lots of students who “freaked out,” one of the hallmarks of that class during the attack was a former Navy man who was an older fellow who said that the first thing we have to do is go back to first principles of who we are. That, I would submit, is the kind of thinking we need to embrace. Not panic and hubris.

There is an effort in the OPR report to create space for what I will call the misfeasance at the top/malfeasance at the bottom game that I noted in my article Refluat Stercus. The passive voice of “mistakes were made” — a litany from former people at the top of the Executive and Legislative — is one example of this game. Grunts at Abu Ghraib get court-martialed and the higher ups are just seen to have made “errors of judgment”.

I would like a grand jury of American citizens to hear all the evidence and decide whether to issue an indictment. I would like, if such an indictment is issued, for these defendants and plenty of material witnesses (such as John Rizzo who is named in the OPR report at key junctures) to be heard under oath in a public court providing the kind of record of their statements that helps give meaning to important trials such as Nuremberg. And I would like a jury of their peers to decide on the innocence or guilt of these people—not just the lawyers—so we can have a decision that gives clear guidance as to whether these acts amounted to a crime. Why? So that the next time someone “freaks out” because someone attacks us, when asked to do this kind of OLC memo, they will see a clear US precedent that says as clearly as possible what is a crime under our law. If that conviction fails, it also provides an opportunity to Congress to see whether it should amend out statutes to better capture torture. And, it would provide for those who have entered into international obligations with the United States an opportunity to see whether we are trying to extract ourselves from our international obligations in our compound republic in the manner that our jurisdiction to enforce, prescribe, and adjudicate is put together.

Also, under the doctrine of complementarity, it reduces the possibility of similar cases happening about Americans being brought in other countries. I suspect that even as we speak the OPR report has been sent to the Spanish prosecutor prosecuting the U.S. lawyers who helped orchestrate the torture by the United States. Let’s clean our very dirty laundry at home.

I think this is important because it is clear that whatever the administration, there is a clear manifest need for a criminal prosecution to help the high-level civilians and generals of our government in the past, now and in the future understand that “word games” of reinterpretation on something as serious as torture – will get you into a jail cell. Especially now that we know that we were lied to about some detainees committing suicide down at Gitmo – they were murdered per Scott Horton’s article out yesterday in Harper’s. Enough is enough.

Benjamin Davis is a professor at the University of Toledo College of Law

Pakistan: New 'Judges' Case' in the Making?

2010-02-14T10:39:00.000-05:00

JURIST Guest Columnists Moeen Cheema of Australian National University College of Law and Shahzad Akbar, an advocate practicing at the Lahore High Court in Pakistan, say that since Pakistan President's Zardari's refusal to appoint judges to the Lahore High Court (LHC) seriously undermines the capacity of that key court to provide justice in human rights cases and is a matter of public importance, either the LHC or the country's Supreme Court may eventually direct the president to comply with the Supreme Court's recent holding in the "Judges' Case"....

The threat of an imminent “clash" of the institutions of the state, the executive, and the judiciary appears to have materialized in Pakistan. The President, Asif Ali Zardari, and the Governor of Pakistan’s largest and most populous province of Punjab, Salmaan Taseer, are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court (LHC).

The president has refused Chief Justice Iftikhar Chaudhry's recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, popularly known as the Judges' Case, is being distorted and misquoted in order to justify the executive's refusal to appoint the judges.

In 1994, President Farooq Leghari, acting on the advice of Prime Minister Benzair Bhutto, appointed 20 judges to the LHC as well as acting chief justices to the LHC and the High Court of Sindh. This appointment of pro-government judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this context that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges' Case in 1996.

Article 177 of the Constitution states that: "The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice." In the Judges' Case the Supreme Court interpreted this provision to mean that while the president nominally has the power to appoint the chief justice of the Supreme Court, he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the President.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts "after consultation" with the Chief Justice of Pakistan, the Governor of the province and the Chief Justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the Governor. Again, it was held that the consultation with the chief justices is binding upon the President. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

As regards the appointment of the Chief Justices of the High Courts and the Supreme Court, it was held that the senior-most judge of that court has a legitimate expectation to be appointed to that position once it becomes vacant. However, the issue currently is very different from that taken up by the Supreme Court in the Judges' Case. Here the president's men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges' Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice, but it did not deal with the appointment of new judges to the Supreme Court, and it did not require the chief justices of the High Courts be elevated when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench examined the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments. Explaining the spirit of the Judges' Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority "is misconceived and travels beyond the parameters indicated in the Judges' Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court."

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words "the most senior of the other Judges" are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court's own words: "the absence of the words 'most senior' in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court."

Another argument which undermines the government's argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents of several such appointments to the Supreme Court.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and his opinion concerning the competence of an individual to serve as a judge is binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issues of seniority, suitability, and knowledge of law are areas which are to be judged by the chief justice.

In fairness, this is not the most suitable method in the world for making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Parliament if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historically the case, or the chief justice, as has been the situation after the Judges' Case. The latter is clearly preferable.

Given the weight of the precedents and the underlying principles, it should not surprise anyone when the Supreme Court quashes the notification of appointment to the Supreme Court issued by the President in contravention of Chief Justice Chaudhary’s advice. Furthermore, if the president and the governor are under the impression that they can stall the appointments of judges to the LHC indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is "a question of public importance with reference to the enforcement of any of the Fundamental Rights." Article 199(1)(c) empowers a High Court to "make an order giving such directions to any person or authority, including any government…as may be appropriate for the enforcement of any of the Fundamental Rights." Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court's direction.

Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.

Postscript: Contrary to Chief Justice Chaudhary's recommendation, President Asif Ali Zardari issued a notification on February 13 purporting to elevate Justice Khwaja Sharif (Chief Justice of Lahore High Court) as a judge of the Supreme Court and appointing Justice Saqib Nisar as Acting Chief Justice of Lahore High Court.However, both of the judges refused to accept the notification as valid. The Chief Justice of Pakistan, Iftikhar Chaudhary, immediately took suo moto notice of the palpably unconstitutional action of the President and constituted a 3-member bench that suspended the notifications. The government initially defended its actions but relented in the face of rising public pressure and criticism from the bar, opposition political parties, and the media. The government withdrew the notifications on February 17 and the Prime Minister agreed to make all judicial appointments in the Supreme Court and the High Courts according to the recommendations of the Chief Justice of Pakistan.

Torture as Foreign Policy: The Omar Khadr Decision

2010-02-11T00:29:00.006-05:00

JURIST Special Guest Columnist Gail Davidson, Executive Director of Lawyers Rights Watch Canada, says that the Supreme Court of Canada was simply wrong in taking the extraordinary step of denying Canadian Guantanamo detainee Omar Khadr the remedy ordered by the courts below — the only remedy available — based on the arbitrary power of the executive to conduct foreign affairs....

The decision of the Supreme Court of Canada in the Omar Khadr[1] case — which implies that remedies to prevent torture and punish perpetrators are a privilege to be granted or withheld at the pleasure of the Prime Minister — is wrong.

The Supreme Court of Canada confirmed that the government of Canada violated Omar Khadr’s rights under the Canadian Charter of Rights and Freedoms, that those violations continue, and that those violations contribute to his ongoing detention. The court was referring to the fact that officials from Canada’s Department of Foreign Affairs and International Trade (DFAIT) interrogated Omar Khadr at Guantanamo Bay and gave their interrogation records to Khadr’s U.S. captors after being told that U.S. officials had tortured Khadr (by severe sleep deprivation)[2] for three weeks to “make him more amenable and willing to talk” to the Canadians and that he would be placed in isolation after the interrogation.

Ignoring the imperative international duties triggered by these appalling facts, the Supreme Court of Canada went on to rule it appropriate to leave “it to the government to decide how best to respond…”[3] The court set aside the 23 April 2009 order of the Federal Court of Canada — confirmed by the Federal Court of Appeal on 14 August 2009 — compelling the Prime Minister, the Minister of Foreign Affairs, the Commissioner of the RCMP, and the Director of CSIS to "…request that the United States return Mr. Khadr to Canada as soon as practicable."

The Federal Court order was in keeping with the decision made by the Canadian government in March 2009. In June 2008 the Committee struck to study the Omar Khadr case recommended to Parliament “…that the Government of Canada demand Omar Khadr’s release from U.S. custody at Guantanamo Bay to the custody of Canadian law enforcement officials as soon as practical.”[4] On 23 March 2009, Parliament voted by a majority to accept that recommendation, thereby directing the Prime Minister to act to secure Khadr’s release and repatriation.

In setting aside the lower court orders and overriding the will of Parliament, the court cited a need to respect the prerogative power of the executive to conduct foreign affairs, described as the “…arbitrary authority, which at any given time is legally left in the hand of the Crown…”.

To arrive at this conclusion, the court relied on a text published in 1915: long before the prohibition of torture became a norm of jus cogens, a “peremptory norm of general international law” from which no derogation is permitted; long before the “…use of torture…by state authorities…" had come to be regarded as an attack upon the international order[5]; long before the individual’s right to freedom from torture took precedence over the right of states to conduct their affairs free from interference by other states. Under current international law, the duties of states to enact and enforce effective remedies to prevent and punish torture are not subservient to any other domestic or international purpose or circumstance including “comity” between states.

In taking the extraordinary step of denying Khadr the remedy ordered by the courts below — the only remedy available — based on the existence of an arbitrary power not supported by law, the Supreme Court of Canada was simply wrong. It was simply wrong for the court to conclude that characterizing a remedy for torture as a foreign affairs policy matter displaces the imperative legal duties under the Convention against Torture to take effective action. Prime Minister Harper cannot clothe himself with the power to do what is prohibited by international and Canadian law. By law, torture against a Canadian citizen must be remedied through investigation and prosecution of suspects. Obviously the victim — in this case Khadr — must be removed from the control of the perpetrators of crimes against him. Neither the Prime Minister nor “government” has any “residual” right to “speak freely with a foreign state”[6] on the suspension or relaxation of the absolute prohibition against torture.[7] Torture can never be considered a legitimate act of state; neither can suspending or refusing remedies be legitimated as foreign policy.

The language used by the court to describe key facts and principles creates the erroneous impression that U.S. accusations against Omar Khadr are more serious than, and therefore take precedence over, the crimes the U.S. is known to have committed against him.

Here are examples of the misleading language used by the court in the Khadr judgment:

“frequent flyer program” is used to refer to the torture of Khadr by subjecting him to prolonged and severe sleep deprivation to enhance extraction of information by Canadian officials.

“trial” is used to refer to the military commissions process found by the U.S. Supreme Court to illegally violate the right to a fair trial by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

“war crimes” is used to describe charges against Khadr that have been challenged as illegitimate because they are: unknown to the laws of war; created after they are alleged to have been committed, for which reason prosecution is absolutely barred;[8] and inapplicable since as a child Khadr lacked the capacity to consent to involvement in war.

“the trial is proceeding” refers to a delay[9] of almost eight years - a delay that violates the right to be tried within a reasonable time under Canadian and U.S. law.[10] Were Khadr before a regularly constituted court, the prosecution would be stayed on the basis of that delay.

“government” is used to refer to Stephen Harper, the Commissioner of the RCMP, the Minister of Foreign Affairs and the Director of CSIS.[11]

“Mr. Khadr’s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated” refers to the most grave violations of Khadr’s rights to liberty[12]; due process[13]; freedom from torture and other cruel, inhuman and degrading treatment or punishment[14]; freedom from arbitrary imprisonment[15]; freedom from prosecution for ex post facto crimes; a fair trial; timely and confidential legal representation; determination of criminal charges by an impartial and independent tribunal; habeas corpus for determination of the legality of imprisonment and treatment during imprisonment; equality before the law and equal access to the protection of the law;[16] and, under the Convention on the Rights of the Child, to rehabilitation, education and re-integration into free society.

Finally, the Supreme Court of Canada decision in the Khadr case ignored the legal reality that without remedies there are no rights.[17] The Chief Justice of the Supreme Court of Canada has in the past observed that had freedom from torture and other basic rights been enforced, the Holocaust could not have occurred.[18]

By allowing the Prime Minister to refuse to take the actions required by law and approved by Parliament to stop violations of Omar Khadr’s rights, and by dubbing Mr. Harper’s inaction “foreign affairs,” the Supreme Court of Canada has put the rights of us all at risk.

Gail Davidson is the founder and Executive Director of Lawyers Rights Watch Canada and the Chair and co-founder of Lawyers Against the War.

Notes

1. Prime Minister of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr, Supreme Court of Canada, January 29, 2010

2. Sleep deprivation used to extract information from a prisoner is torture according to a variety of authorities. UN experts, reviewing international law, confirmed in a 2006 report on Guantanamo Bay that sleep deprivation, even for several consecutive days, is torture. The U.S. Army Field Manual on Interrogation in force in 2004 listed sleep deprivation as a form of torture. The Canadian government publication, Torture & Abuse Awareness, lists the U.S. as one of the ten countries worldwide known to engage in torture and lists sleep deprivation as a form of torture.

3. “…in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.” Supra note 1 at para. 39.

4. OMAR KHADR Report of the Standing Committee on Foreign Affairs and International Development: Subcommittee on International Human Rights, June 2008, para. 3, page 6.

5. R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17, House of Lords. Lord Millet.

6. Supra, note 1 at para. 33.

7. Instruments that impose a mandatory duty to provide effective remedies against torture include the: Geneva Conventions; Rome Statute of the International Court; International Covenant on Civil and Criminal Rights; Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment; Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law; The Vienna Declaration and Programme of Action, articles 56 and 60; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

8. Freedom from ex post facto prosecutions is absolute and cannot be displaced by any authority under any
circumstances.

9. Factors contributing to the delay include: rulings by the U.S. Supreme Court that the military commissions are illegal; dismissal of the charges; non-disclosure by the prosecution; leaked documents indicating falsification of evidence by the U.S. military; the Pentagon sacking of the military “Presiding Officer” in charge of the Khadr case; investigation of professional misconduct complaints against Khadr’s lead military attorney; a 120-day adjournment imposed by President Obama in January 2009 for a review the process; and a four month suspension imposed by the president in May 2009 to alter the military commissions.

10. The U.S. Constitution, art. VI, cl.2 guarantees a trial within a reasonable time, as does the Speedy Trial Act. In Canada this right is guaranteed by the Charter of Rights and Freedoms s. 11(b). The Supreme Court of Canada recently ruled that a two year delay violated Charter rights and that the appropriate remedy was to stay the prosecution. (R. v. Godin, 2009 SCC 26)

11. Supra note 4, a para. 3, page 6.

12. The right to liberty and not to be deprived thereof except in accordance with the principles of fundamental justice is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Universal Declaration of Human Rights.

13. Due Process rights, including rights to a lawyer, notice of charges and evidence, a fair trial before a competent and independent tribunal, habeas corpus, an appeal, the presumption of innocence are guaranteed by a number of Canadian statutes and international instruments binding on Canada, e.g., the Canadian Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; Third Geneva Convention; Crimes against Humanity and War Crimes Act; Convention on the Rights of the Child; Hague Conventions, Annex, art. 23(h).

14. Freedom from torture is a non-derogable right of all humankind that cannot be displaced by any circumstances, guaranteed by the Convention against Torture and Other Cruel and Inhuman Treatment or Punishment; the Criminal Code; the Crimes against Humanity and War Crimes Act; the Rome Statute of the International Court; the Geneva Conventions; the Convention on the Rights of the Child; and other laws binding on Canada and the U.S.

15. Freedom from arbitrary imprisonment is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the Third Geneva Convention; the Universal Declaration of Human Rights; and the Magna Carta.

16. Rights to equality before the law and equal access to protection by law and to legal remedies for the prevention and punishment of violations is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child

17. “Our High Commissioner has reminded us that "Rights which are violated or ignored are rights in name only." It is in this spirit that we must abolish the culture of impunity. States that fail to prosecute human rights abusers are failing in their 'responsibility to protect'.” Canada’s International Human Rights Policy website (accessed 2 August 2005).

18. “The most basic human rights are those guaranteed by the criminal law – the right to life; to liberty; to freedom from arbitrary detention, abuse and torture…Rights, that had they been in place and in force, would have made impossible the atrocities of the holocaust.” The Right Honourable Beverley McLachlin P.C. Chief Justice of Canada, The Changing Face of International Criminal Law p.14.

A Solomonic Judgment on Elections in Iraq

2010-02-08T06:51:00.001-05:00

JURIST Guest Columnist Chibli Mallat, professor of law at the University of Utah and Saint Joseph's University, Lebanon, says that for the sake of stability in Iraq's upcoming elections, it's imperative that all parties respect the Iraqi judiciary's recent decision on candidate eligibility....

It took the US Supreme Court 180 pages to issue the controversial — and by most accounts, poor — Citizens United decision which equated corporations with individual human beings and which threw overboard a carefully crafted bipartisan law meant to reduce the power of money in US elections.

In its ‘Abd al-Amir decision of February 3, 2010, it took the Iraqi Cassation Chamber ten lines to bring hope to an endangered electoral process in Iraq. It was published on February 4 on the Higher Judicial Council's website, and is available here in English.

I have argued that last month's Citizens United decision repeated the ill-bent precedent of the infamous Bush v. Gore decision of December 2000 in the sense that the judges appeared to act as mere political agents for the parties of the presidents who appointed each of them. At great cost to the judiciary's credibility, both cases split down the middle politically, with 5 Republicans against 4 Democrats. Hence the finesse, in contrast, of the Iraqi judiciary's ‘Abd al-Amir decision.

In an occasionally endearing ruling about the risk of being a judge in a country like Iraq, the Cassation Chamber admitted the appeals lodged by some 500 candidates on the basis of their exclusion from the electoral lists. That exclusion was decreed by the Accountability and Justice Committee on account of the candidates' organic ties with the previous Baath regime. The Court declared that it did not have time to examine the appeals, and that while candidates had a constitutional right to run for elections, the Court could cancel the results in case of success if the 'democratic credentials' required by the anti-Baath law had not been met.

At the origins of the electoral turmoil in Iraq was the precedent created by the botched Afghani presidential election, which saw the rigging of the election of incumbent president Hamid Karzai go unpunished.

Challenges to the stability of the electoral system in Iraq started with the late approval of the electoral law on November 8, 2009. From the start, this appeared to be a harbinger of fishy dealings because it left candidates with little time to establish their tactics and coalition strategy. Then Tareq al-Hashimi — one of the three members of the Iraqi Presidency Council — unreasonably vetoed the law on November 18, pushing the date beyond the January deadline requested by an earlier ruling of the Federal Supreme Court. In a country with deep national and sectarian divisions, this was perceived as a Sunni ploy — Hashimi being Sunni. The unease was continued by rumblings of the president of the Kurdish region, Mas'ud Barzani, who threatened that same week to boycott the elections if certain Kurdish demands were not met. This was perceived as a Kurdish ploy. As soon as the date was finalized in the wake of a last-minute compromise between Hashimi and the Kurds, the crisis of the excluded candidates was set by the decision of the Accountability and Justice Commission on 19 January 2010. Since almost one-sixth of the candidates were excluded, the crisis became national. This was perceived as a Shi'i ploy.

At the heart of the last crisis lie two conflicting basic principles: the candidate's freedom to run, and the public's right to be shielded from self-styled advocates of the Baath system.

The Court rendered nothing less than a Solomonic judgment. Tempers run high in elections, and Iraq is no exception. The Accountability and Justice Commission certainly erred in delaying the examination of candidates' credentials until so late in the day, and disqualified too many people for its decision not to appear excessive so close to the elections.

On the other hand, in a country where some politicians continue to boast about a ruthless 'resistance' which continues to kill dozens of innocent civilians at a time when American troops are anxious to leave the country, there is a legitimate question as to whether some of the unrepentant Baathists should be allowed to use what they decry as "US-imposed democracy" to run for elections. By holding that their democratic credentials might still be examined after the elections, because it simply did not have the time to thoroughly and professionally examine every file, the Cassation Chamber achieved a Pyrrhic victory that saves the elections, but only if its writ is widely accepted in the country.

It should be. The Seven-member court was appointed by the Higher Judicial Council on the request of Parliament in order to give the candidates banned by the Commission the right to see their appeals adjudicated in a court of law. The judges simply did not have time to examine several hundred cases, nor did the law allow them to accept candidates who supported or who continue to support the members or advocates of the former regime, which was rightly described by Tony Blair as "monstrous" in his recent appearance before the Chilcot commission. Candidates whose rights to run were reinstated should take the decision seriously and should avoid triumphalism during the campaign. Similarly, all factions in Iraq must abandon posturing and must run a decent campaign which has for all intents and purposes fully started, while the brutal bombings meant to derail them continue and intensify.

When the ill-advised decision Bush v. Gore was issued, losing candidate Al Gore expressed impressive democratic poise when he stated on December 13, 2000: "Now the U.S. Supreme Court has spoken." In a far better decision, Iraq should be shielded from further uncertainties created by suspicious candidates and parties who should now accept that the Iraqi Court has spoken. The Iraqi judiciary gave Iraqis a respite which will only take effect if its decision is appreciated for its extraordinary humane and legal quality.

Chibli Mallat is professor of law at the University of Utah and Saint Joseph's University, Lebanon. He is the author of numerous studies on Iraq, including three books, The Renewal of Islamic Law (Cambridge 1993), Dalil al-Dustur al-‘Iraqi (‘Guide to the Iraqi Constitution’, Baghdad 2009) and Iraq: Guide to Law and Policy, which has just appeared at Aspen. He is a regular JURIST columnist and edits the Lebanese Daily Star law page.

Constructive Criticism: Presidential Opposition to Supreme Court Rulings

2010-02-02T11:50:00.001-05:00

JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that although a president should naturally be careful to avoid demonstrating disrespect for the Supreme Court, the remarks President Obama recently made about the Court's decision in Citizens United v. Federal Election Commission during the State of the Union address did not in any way derogate judicial independence or encourage any defiance of the Court’s decision....

President Obama’s pungent criticism of a very recent and highly controversial U.S. Supreme Court decision during his State of the Union address last week raises important questions about the proper manner in which a president should express objections to the Court’s decisions. Many Americans, including many Democrats, believe that Obama’s remarks about the Court’s five-to-four January 21 decision invalidating certain limitations on corporate spending in political campaigns were disrespectful to the Court and insensitive to the doctrines of judicial independence and separation of powers, particularly since the Justices were present at the State of the Union address. Considered in context, however, Obama’s remarks were not improper, although they might have been somewhat imprudent.

First, it is important to point out that Obama criticized only one judicial decision, Citizens United v. Federal Election Commission. He did not attack the Court itself or impugn the good faith or motives of any individual justice. Although he objected to the manner in which the Court exercised its power of judicial review in a particular case, he did not express any objection to the Court’s power of judicial review or even remotely imply that he supported any kind of curtailment of the Court’s institutional powers. In contrast with earlier periods of American history, when controversial Supreme Court opinions often provoked calls for abridgment or abolition of the power of judicial review, the adverse reaction to Citizens United has not generated any assault on the Court itself.

To the extent that Obama believes that Citizens United could have baneful consequences for the integrity of American democracy, he appropriately used the “bully pulpit” of a State of the Union address to warn about the decision’s deleterious impact and to call for measures to counteract it. Obama is hardly alone, for his dismay over Citizens United is shared by countless Americans and by many members of Congress, who are trying to formulate legislation that will overcome or at least ameliorate its effects. Indeed, one of the harshest criticisms of the decision originated on the Court itself. Justice Stevens, in a dissent joined by Justices Ginsberg, Breyer, and Sotomayor, warned that the decision “will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.”

Moreover, Obama’s remarks about Citizens United, which displayed a forthrightness that many of his liberal critics found refreshing, were far from intemperate. Here is what Obama actually said:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well, I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that’s why I’d urge Democrats and Republicans to pass a bill that helps corrects some of these problems.

Despite the widespread commentary about Obama’s remarks about Citizens United in his State of the Union address, Obama’s far more trenchant remarks on the day on which the Court announced Citizens United have attracted little notice or criticism. In this statement, Obama declared that “With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.” Obama may have felt that he needed to tone down his remarks for the highly formal occasion of the State of the Union address, particularly because the Supreme Court justices were present.

Obama’s words arguably were more moderate than many passages of Stevens’s dissenting opinion. In addition to his warning about “corporate domination of the political process,” Stevens disparaged the Court’s opinion as “a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

Although some critics of Obama’s speech contend that Obama lied about the Court’s decision insofar as he alleged that it could permit foreign corporations to bankroll American elections, many lawyers and scholars believe that the decision could have exactly this effect even though the decision technically addressed only a provision of the Bipartisan Campaign Reform Act of 2002 that concerned domestic corporations and even though the decision did not overturn restrictions on direct campaign contributions. The danger of foreign influence would appear to be particularly significant since even many “domestic” corporations actually are owned mostly or largely by foreign interests. Indeed, in his dissent Stevens warned that the decision “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” While one might disagree with Obama’s statement about foreign corporations--as did Justice Samuel Alito, who indignantly mouthed “not true” when Obama made this allegation–-it is not fair to say that Obama lied. It also is unfair for some of Obama’s critics to claim that he lied by alleging that Citizens United reversed a century of precedent. Although the decision technically rejected precedents dating back no farther than 1990, Justice Stevens explained in his dissent that “[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).” If Obama lied, then so did Stevens and the three other dissenters.

There is likewise little basis for objecting to Obama’s criticism of even one individual decision on the basis that any presidential criticism of a judicial decision tends to discredit the Court and hinder the enforcement of its decisions. Obama’s criticism of Citizens United does not create such a danger, although this kind of a threat could arise in other types of cases. Since the Court--as Alexander Hamilton famously pointed out in No. 78 of The Federalist--has neither the power of the purse nor the power of the sword, it is dependent upon the goodwill of the executive and legislative branches of the federal and state governments and of the American people for the enforcement of its decisions. A president therefore should be particularly careful about criticizing any decision that could encounter widespread defiance.

For example, enforcement of the Supreme Court’s controversial decisions during the 1960s expanding the procedural rights of criminal defendants depended upon compliance by countless police officers and state judges. Although there is no indication that Lyndon Johnson opposed these decisions, any criticism by him of decisions such as Miranda v. Arizona (1966) while he was president could have encouraged law enforcement officials to ignore, evade, or even defy the Supreme Court’s rulings. Similarly, the Supreme Court’s widely unpopular decision barring prayer in public school, Engel v. Vitale (1962), required compliance by tens of thousands of schools and hundreds of thousands of teachers. The decision was difficult to enforce, and at least some schools ignore it even today. President Kennedy was wise to publicly urge respect for the decision, explaining to its opponents that there was an “easy remedy” insofar as “we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of our children.” Likewise, the Supreme Court’s principal school desegregation decision, Brown v. Education (1954), required the goodwill of countless parents and compliance by a wide array of school boards, state legislators, and governors. President Eisenhower, who had severe misgivings about Brown, has been criticized for making public endorsements of the decision that were so lukewarm and ambiguous that they may have discouraged compliance. Efforts to compel public officials to comply with Brown often required costly and protracted litigation by civil rights groups that had difficulty financing such litigation. Similarly, the costs of efforts to enforce Engel or the Court’s criminal procedure decisions would have had to have been borne in many cases by under-financed religious minorities or impoverished criminal defendants.

In stark contrast to these earlier cases, Citizens United is not a decision that the Supreme Court should have any difficulty enforcing. The Federal Elections Commission is the only agency that could directly frustrate the Court’s decision, and any attempt by the Commission to try to enjoin the types of activity permitted by the Court’s decision would attract widespread public attention and provoke litigation by well financed corporations.

Finally, complaints about Obama’s criticism of Citizens United are misplaced to the extent that they underestimate the extent to which previous presidents have criticized the Court and its decisions. Although presidents usually have been circumspect about making public comments concerning Supreme Court decisions, presidential criticism of such decisions has been far from unknown. In 1989, for example, President George Bush advocated a constitutional amendment to overturn the Court’s decision in Texas v. Johnson, which nullified a state statute that criminalized flag burning. Although Bush signed a federal statute to criminalize flag burning, he continued to express preference for a constitutional amendment. When the Court two years later invalidated a similar federal law in United States v. Eichman, Bush immediately advocated another constitutional amendment.

Presidential criticism of the Court’s decisions probably would be even more common if presidents had not so often agreed with the outcome of decisions or had not believed that criticism could offend important blocs of voters. Franklin D. Roosevelt, for example, generally refrained from criticism of the Court after the Court during 1935 and 1936 nullified several of his New Deal measures because he feared that such criticism could backfire. In a press conference in 1935, he complained that the Court’s decisions were relics of the “horse and buggy definition of interstate commerce,” but he otherwise was silent until early in 1937, when his Court-packing proposal and his harsh remarks about the Court inspired widespread disapproval that culminated in congressional rejection of his plan to add up to six justices to the Court.

Although Obama’s criticism of Citizens United in his State of the Union address probably is the strongest statement that a president ever has made about a recent Supreme Court decision in any State of the Union speech, other presidents have used the State of Union to make points about judicial decisions. As recently as 2004, President Bush tacitly criticized the Supreme Judicial Court of Massachusetts’s recent decision on same-sex marriage, alleging that “activist judges have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.” Bush implied that he supported a constitutional amendment to overturn the decision. Although President Reagan never mentioned Roe v. Wade by name or directly criticized the Supreme Court in his State of the Union addresses, he impliedly criticized Roe in his 1984 and 1986 addresses. In his 1988 State of the Union speech, Reagan advocated a constitutional amendment to allow prayer in public schools, but he did not specifically refer to Engel v. Vitale or any other Court’s school prayer decisions. In 1922, President Harding called for an amendment to restrict child labor which would have had the effect of overturning the Court’s decisions in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture (1922), although Harding did not mention these decisions or the Court by name.

Until Obama’s speech last week, perhaps the most piquant remark concerning the U.S. Supreme Court in any State of the Union message was made by Franklin D. Roosevelt in January 1937, only a few weeks before he announced his infamous Court-packing proposal. Roosevelt expressed hope that “we can meet new national needs with new laws consistent with an historic constitutional framework clearly intended to receive liberal and not narrow interpretation.” Implying that he opposed constitutional amendments but would work for some other method to ensure judicial approval of economic regulatory legislation, Roosevelt declared that “[t]he vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it,” and that “[m]eans must be found to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the world.” The Justices were absent from this State Union address, even though Roosevelt had expected them to attend. Secretary of the Interior Harold L. Ickes speculated in his diary that they stayed away because they had "received a tip as to the contents of the message".

Theodore Roosevelt, however, holds the record for criticism of courts in State of the Union addresses. In his 1906 and 1908 State of the Union addresses, Roosevelt made extensive and stinging remarks about state and federal judges who invalidated economic regulatory legislation and who issued injunctions against the legitimate activities of labor unions. In his 1908 address, Roosevelt declared that “[j]udges of this stamp do lasting harm by their decisions because they convince poor men in need of protection that the courts of the land are profoundly ignorant of and out of sympathy with their needs.” Similarly, in his 1906 address, Roosevelt complained about “flagrant wrongs committed by judges in connection with disputes.” In both addresses, in which Roosevelt devoted thousands of words to discussing judicial issues, Roosevelt professed strong respect for the majority of state and federal judges and for judicial independence, but he warned that the continuation of strong judicial institutions required a wise exercise of judicial power that elevated the rule of law over special interests.

Roosevelt did not make these remarks in front of any judges because State of the Union addresses were not delivered in person between 1801 and 1913. Much of the criticism of Obama’s remarks last week are based not on what he said but on where he said it. Many critics of Obama’s remarks about Citizens United complain that Obama was unfair to the Court to the extent that the justices had no immediate way to respond, other than in the ill-advised manner used by Alito. But while extrajudicial comments by judges about their own decisions are inappropriate, there are plenty of lawyers, journalists, scholars, and pundits who can defend the Court’s opinions. Although a president naturally should be careful to avoid demonstrating any disrespect for the Court, particularly when the justices are present, Obama’s remarks in his State of the Union address were limited to only one case and did not in any way derogate judicial independence or encourage any defiance of the Court’s decision. Indeed, such measured criticism of the Court can actually enhance public respect for the judiciary. As Theodore Roosevelt observed in his 1906 State of the Union address, “just and temperate criticism” of the judiciary helps to prevent “that intemperate antagonism towards the judiciary which...if it became widespread among the people...would constitute a dire menace to the Republic.”

William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include several studies of political controversies involving the U.S. Supreme Court. His website is williamgeorgeross.com.

Good News About GTMO and Bagram

2010-02-01T02:39:00.001-05:00

JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says President Obama's inability to close the lawful Guantanamo prison is actually good news, but so is the Afghan government's agreement to take over the new Bagram detention facility by the end of 2010....

One of the key issues in the long running “War on Terror” (as recently as January 7, 2010, President Obama acknowledged that the United States was in a “War with Al-Qa’eda”) revolves around the detention of so-called al-Qa’eda and Taliban enemy combatants. With the 2006 release of the 14 “high-value” al-Qa’eda detainees held by the CIA in “undisclosed” locations, all enemy combatant detainees are currently held either at Bagram Air Force Base in Afghanistan (about 800) or the American run detention facility, Camp Delta, at Guantanamo Bay (GTMO), Cuba (about 200).

Under the rule of law associated with armed conflict, all al-Qa’eda and Taliban detainees are unlawful enemy combatants or "unprivileged enemy belligerents", as the recently passed 2009 Military Commissions Act labels them. As such, these individuals are not entitled to Miranda rights, nor are they entitled to the special protections associated with prisoners of war.

Under the law of war, the purpose of detaining these unprivileged enemy belligerents is to ensure that they do not return to join enemy forces and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorists’ organizational infrastructure, financial network, communication system, weapon supply lines, and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy.

The first good news in the detention issue is that President Obama has not been able to fulfill his stern promise to close the detention facility at GTMO by January 2010, or sooner, because of the “perception” that the United States is in some way acting outside of the rule of law. Of course, this reasoning is incorrect. In reality we are at “War with Al-Qa’eda” and GTMO is therefore perfectly lawful. Indeed, closing GTMO would only provide a significant propaganda victory to our enemies, not a public relations victory.

In addition, during the first year of the Obama Administration, few seemed the least bit curious about where we were sending al-Qa’eda detainees if not to GTMO. In fact, they were and are being sent to join the hundreds and hundreds of al-Qa’eda and Taliban unprivileged enemy belligerents at Bagram, Air Force Base. The same legal authority that allows the United States to lawfully detain al-Qa’eda and Taliban fighters at GTMO is used at Bagram. In other words, if President Obama believes that we need to apologize for GITMO and close it down, then we certainly need to apologize for the far larger detention facility at Bagram and close it down.

To be sure, this double standard has not been lost on detainees at Bagram. In the past year, at least four separate lawsuits were filed in the federal district court in Washington DC by individuals captured outside Afghanistan seeking, among other things, the right of habeas review of their status as “enemy combatants.” When the cases were consolidated, the Obama Administration strongly argued that the four were not entitled to habeas review because they were in fact enemy combatants and lawfully detained under the applicable law of war and Congress’s 2001 Authorization for Use of Military Force (AUMF). Unfortunately for the United States, in each case (except for a detainee who was a citizen of Afghanistan), the federal court ruled against the Obama Administration. Relying on Boumediene v. Bush (2008), the federal district court held that the Constitution guarantees habeas rights to Bagram detainees.

Clearly, the granting of habeas to unprivileged enemy belligerents in far off Afghanistan poses serious difficulties for the Obama Administration, but this matter may well be overcome by the second piece of good news associated with detention issues. In early January 2010, the Afghan Defense Ministry announced that it had agreed to take over the new 60-million-dollar (US funded) Bagram detention facility by the end of 2010. This means that the Afghan government would be solely responsible for detaining and prosecuting all detainees. If this comes to pass, the United States may be able to close a significant chapter in dealing with the vast majority of the unprivileged enemy belligerents captured in the War on Terror. Good news indeed.

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary’s University School of Law, San Antonio, Texas. He has served as an expert advisor to the government on the military commissions’ process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces. He recently testified before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts hearing entitled: “What Went Wrong, Torture and the Office of the Legal Counsel in the Bush Administration,” in Washington, DC.

Indefinite Detention: Campaign Promises Meet Political Realities

2010-01-28T08:05:00.002-05:00

JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England Law | Boston say that despite his campaign promises, it seems that President Obama has made the political calculation that anything other than the indefinite detention of 49 current Guantanamo detainees is simply not worth the political risk....

Last week, a presidential task force charged with assessing the feasibility of prosecuting suspected terrorists currently detained at Guantanamo Bay finished its evaluation of the cases. Relying upon the work of the task force, President Obama has concluded that of the remaining detainees, 110 should be repatriated or released to a third county, 40 should be tried either in federal court or by military commission, and 49 should be detained indefinitely without trial because they are too difficult to prosecute and too dangerous to release.

The decision to detain these individuals without trial is not unexpected. In spite of then-candidate Obama’s promises, it seems President Obama has made the political calculation that to provide these suspects any additional legal process is simply not worth the political risk.

Indeed, the administration’s decision was foreshadowed by an earlier action last spring. Before assuming office and in his first few months thereafter, President Obama acknowledged that there may be some detainees at Guantanamo who could not be tried or released. The President indicated that he would seek additional Congressional authorization to develop criteria, and standards to govern the indefinite detention of these individuals. Just a few months later, the President announced that he would not seek additional authorizations, and that the Authority to Use Military Force (AUMF), enacted immediately after September 11, afforded him the necessary authority to detain individuals without trial indefinitely.

The reason for the change may lie in the anticipation of the political opposition the President faced from both parties when he announced that some of the Guantanamo detainees would be moved to the United States as part of his plan to close the detention facility. Congress even took steps to deny the President funding to transfer detainees to the United States, as well as imposing a notice requirement.

The vocal and swift opposition to the President’s plan may suggest a lack of political will to deal with the thorny issue of indefinite detention.

To be sure, among the many difficult issues raised by the Guantanamo detentions, the question of what to do with individuals who cannot be tried or released is particularly challenging. We do not know very much about these 49 detainees. They may be the worst of the worst—or at least the worst of the rest—but it also may be that the United States can no longer bring them to justice for practical reasons.

Consider that trying some of these individuals could expose intelligence sources, as well as intelligence-gathering means and methods—though that risk is significantly reduced under the new military commission rules that establish procedures for dealing with sensitive information. Consider also that some of these detainees likely were subjected to interrogation techniques so coercive as to taint any evidence that could be brought against them in federal court or in military commissions.

At the same time, the decision not to seek additional Congressional authorization for the indefinite detention of these 49 detainees, and those similarly-situated terrorism suspects the United States may capture in the future, is troublesome. At the most fundamental level, it sets a dangerous precedent that can be repeated and expanded any time the Executive determines that indefinite detention or similar action is in the best interests of national security.

In addition, the President’s decision not to seek and obtain Congressional support and authorization for such action makes that decision much more likely to be subjected to challenge in the courts. If we have learned anything from the testing of President George W. Bush’s terrorism policies before the courts, it is that Congressional involvement from the start likely would have resulted in less wasted effort in developing the legal means to address terrorism suspects and detainees.

Further, the lack of transparency in President Obama’s decision-making leaves us to wonder about the real reasons for the continued detention of these individuals, fostering continued doubts about the government’s ability to make accurate assessments of such individuals. At this point, we may rightly ask whether, in light of the many policy failures over the past eight years and the government’s poor record of deciding which terror suspects are in fact the “worst of the worst,” these 49 detainees really pose the kind of threat that the government alleges.

Finally, the President’s decision once again backseats Congress on a major issue of national security, an issue that may have a serious domestic impact. Clear statutory authority from Congress permitting the President to indefinitely detain those who pose a danger to the citizens of the United States would go a long way toward alleviating the expressed fears about trying some terror suspects in Article III courts, and about closing the detention facility at Guantanamo.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England Law | Boston. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate..