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Lessons from the Identity Trail Published Today

Lessons from the Identity Trail (Ian Kerr, Valerie Steeves & Carole Lucock, eds.), a whale of a book, is being published today.

During the past decade, rapid developments in information and communications technology have transformed key social, commercial, and political realities. Within that same time period, working at something less than Internet speed, much of the academic and policy debate arising from these new and emerging technologies has been fragmented. There have been few examples of interdisciplinary dialogue about the importance and impact of anonymity and privacy in a networked society. Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society fills that gap, and examines key questions about anonymity, privacy, and identity in an environment that increasingly automates the collection of personal information and relies upon surveillance to promote private and public sector goals.

This book has been informed by the results of a multi-million dollar research project that has brought together a distinguished array of philosophers, ethicists, feminists, cognitive scientists, lawyers, cryptographers, engineers, policy analysts, government policy makers, and privacy experts. Working collaboratively over a four-year period and participating in an iterative process designed to maximize the potential for interdisciplinary discussion and feedback through a series of workshops and peer review, the authors have integrated crucial public policy themes with the most recent research outcomes.

The book is available for download under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Canada License by chapter. Hard copies are available for purchase at Amazon & at Oxford University Press.

I’ve got two chapters in it, Identity Cards and Identity Romanticism and Anonymity and the Law in the United States. And I’m very pleased to be in such wonderful company — it was a valuable conference full of interesting people and the materials collected here are going to be of interest to people in many of the cross-cutting fields around the world. And the chapters are (painfully) short.

The full Table of Contents, with links to the online versions of the chapters is below. Some chapters won’t be released for a few weeks, so keep an eye on the main site for updates.

About this Book
Acknowledgements
Contributors
The Strange Return of Gyges’ Ring : An Introduction

I. Privacy

Introduction to Part I

Chapter 1. Soft Surveillance, Hard Consent: The Law and Psychology of Engineering Consent
by IAN KERR, JENNIFER BARRIGAR, JACQUELYN BURKELL, AND KATIE BLACK

Chapter 2. Approaches to Consent in Canadian Data Protection Law 23
by PHILIPPA LAWSON AND MARY O’DONOGHUE

Chapter 3. Learning from Data Protection Law at the Nexus of Copyright and Privacy
by ALEX CAMERON

Chapter 4. A Heuristics Approach to Understanding Privacy-Protecting Behaviors in Digital Social Environments 187.21 Kb
by ROBERT CAREY AND JACQUELYN BURKELL

Chapter 5. Ubiquitous Computing and Spatial Privacy (available April 22nd)
by ANNE UTECK

Chapter 6. Core Privacy: A Problem for Predictive Data Mining (available April 22nd)
by JASON MILLAR

Chapter 7. Privacy Versus National Security: Clarifying the Trade-Off (available April 22nd)
by JENNIFER CHANDLER

Chapter 8. Privacy’s Second Home: Building a New Home for Privacy Under Section 15 of the Charter (available April 22nd)
by DAPHNE GILBERT

Chapter 9. What Have You Done for Me Lately? Reflections on Redeeming Privacy for Battered Women (available May 6th)
by JENA MCGILL

Chapter 10. Genetic Technologies and Medicine: Privacy, Identity, and Informed Consent (available May 6th)
by MARSHA HANEN

Chapter 11. Reclaiming the Social Value of Privacy (available May 6th)
by VALERIE STEEVES

II. IDENTITY

Introduction to Part II

Chapter 12. A Conceptual Analysis of Identity 154.83 Kb
by STEVEN DAVIS

Chapter 13. Identity: Difference and Categorization 202.97 Kb
by CHARLES D. RAAB

Chapter 14. Identity Cards and Identity Romanticism 341.48 Kb
by A. MICHAEL FROOMKIN

Chapter 15. What’s in a Name? Who Benefits from the Publication Ban in Sexual Assault Trials? 215.82 Kb
by JANE DOE

Chapter 16. Life in the Fish Bowl: Feminist Interrogations of Webcamming (available April 22nd)
by JANE BAILEY

Chapter 17. Ubiquitous Computing, Spatiality, and the Construction of Identity: Directions for Policy Response (available April 22nd)
by DAVID J. PHILLIPS

Chapter 18. Dignity and Selective Self-Presentation (available April 22nd)
by DAVID MATHESON

Chapter 19. The Internet of People? Reflections on the Future Regulation of Human-Implantable Radio Frequency Identification (available April 22nd)
by IAN KERR

Chapter 20. Using Biometrics to Revisualize the Canada–U.S. Border (available May 6th)
by SHOSHANA MAGNET

Chapter 21. Soul Train: The New Surveillance in Popular Music (available May 6th)
by GARY T. MARX

Chapter 22. Exit Node Repudiation for Anonymity Networks (available May 6th)
by JEREMY CLARK, PHILIPPE GAUVIN, AND CARLISLE ADAMS

Chapter 23. TrackMeNot: Resisting Surveillance in Web Search (available May 6th)
by DANIEL C. HOWE AND HELEN NISSENBAUM

III. ANONYMITY

Introduction to Part III

Chapter 24. Anonymity and the Law in the United States
by A. MICHAEL FROOMKIN

Chapter 25. Anonymity and the Law in Canada
by CAROLE LUCOCK AND KATIE BLACK

Chapter 26. Anonymity and the Law in the United Kingdom (available April 22nd)
by IAN LLOYD

Chapter 27. Anonymity and the Law in the Netherlands (available May 6th)
by SIMONE VAN DER HOF, BERT JAAP KOOPS, AND RONALD LEENES

Chapter 28. Anonymity and the Law in Italy (available May 6th)
by GIUSELLA FINOCCHIARO

Council of Europe Sips at the Censorship Kool-Aid

Milton Mueller — a reliable source — writes, Council of Europe Works to Criminalize Political Expression:

The Council of Europe is pushing to extend the Cybercrime Convention to impose criminal sanctions on what it considers to be unacceptable forms of political or religious expression. The Cybercrime Convention was originally negotiated to respond to transnational problems such as theft of data, breaking into computers, computer-based financial fraud and the like. But now the Council is engaged in bulk unsolicited emails to promote the idea that web site content that is insulting or xenophobic is a cybercrime of the same order.

The bulk emails were sent to promote an April 1st meeting in Strasbourg, where the Council will promote its “Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.” Note the less than honest language: what the Council is targeting are not harmful “acts” of racism or xeonophobia, but the distribution of “written material, ideas or theories” which “insult publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors; or (ii) a group of persons which is distinguished by any of these characteristics.”

There’s lots more.

The COE has autonomous ideas, and this might be one of them, but it is also a place that the USA uses as a policy laundry. The way it works is that when our government wants something they can’t get from Congress, they go to the COE (or WIPO, or whatever), get it adopted in Europe, then go to Congress and say we our allies want us to conform to their standard….

A Whale of a Quote

Roger Alford shares with us his list of the “Quotable Quotes from the Fordham Law Review Symposium on International Law and The Constitution: Terms of Engagement.”

There are several good ones, but this one from Yale Law Dean Harold Koh stands out:

I recently was talking with a Senator who said to me, “Professor, we didn’t ask the terrorists to sign the Geneva Conventions. How can you expect us to abide by commitments that they don’t adhere to?” To which I replied, “Yes, and we didn’t ask the whales to sign the Whaling Convention either. We sign these treaties to protect us from ourselves, not from them.”

Is the Palestinian Authority Sovereign Enough for Immunity?

Interesting post at Opinio Juris asking Does the Palestinian Authority Enjoy Sovereign Immunity? which points to Biton v. Palestinian Interim Self-Government Authority where the District Court had to address that very issue.

At what point is a governing authority of a territory sufficiently recognized as a state for it to enjoy immunity? If the Palestinian Authority is not a state why not? And if it is not a state what is it? The more comical (but nonetheless interesting) variation to this question is if the Palestinian Authority is not a state, is it an instrumentality of the state of Israel?

I’m not sure I’d say “comical” was the exact word, but these are interesting questions.

The court, incidentally, said the answer to the question, at this moment anyway, is “no sovereign immunity.” Which means in some cases the PA can be sued in US courts….

Our Fallen State

Representatives from 57 countries on Tuesday signed a long-negotiated treaty prohibiting governments from holding people in secret detention. The United States declined to endorse the document, saying its text did not meet U.S. expectations.

…

State Department spokesman Sean McCormack declined to comment, except to say that the United States helped draft the treaty but that the final wording “did not meet our expectations.”

The Associated Press reported that McCormack declined to comment on whether the U.S. stance was influenced by the Bush administration’s policy of sending terrorism suspects to CIA-run prisons overseas, which President Bush acknowledged in September.

…

The convention defines forced disappearance as the arrest, detention or kidnapping of a person by state agents or affiliates and subsequent denials about the detention or location of the individual.

OLC Head Blogs at 'Opinio Juris'

Kevin Jon Heller writes,

John Bellinger, the head of the Office of the Legal Adviser at the State Department, will be guest-blogging at Opinio Juris the week of January 15th (Monday to Friday). To the best of our knowledge, this will be the first time that anyone at the State Department -- particularly someone in such a critical position -- will have blogged in their official capacity.

Should be interesting! The OJ crowd have also invited some academic guests to participate in the conversation.

'Country' For Sale

Via Slashdot, comes the news that data (and maybe tax) haven Sealand is for sale. The 'nation' has had some problems recently.

Sealand claims to be a country based on its fixation to the continental shelf in what were then but are not now international waters. Although this claim is not recognized by anyone that matters, the claim is somewhat less ludicrous than that of any other man-made micro-nation, e.g. that of the Dominion of Melchizedek.

Geneva Conventions Now Universal

via Opinio Juris:

This is a landmark month in the history of international law: with the accession of the Republic of Montenegro on August 2, the 1949 Geneva Conventions have become the first international treaty in modern history to achieve universal acceptance.

More on the ASIL Resolution

Roger Alford has a well-written and informative post describing the process by which the plenary of the American Society of International Law (ASIL) adopted the resolution I blogged about yesterday.

Prof. Alford disapproves, and he gives his reason,

My own view, which clearly is a minority one today but appears to be the traditional view if one looks at the historical sweep, is that the ASIL should avoid passing these resolutions. Such resolutions, while perhaps uncontroversial in content, are nonetheless controversial in their choice of forum and timing.

In this case, the clear implication of the resolution is that these norms are being ignored or violated by the United States. The drafting history of the resolution undeniably underscores this fact. It is in this sense a political resolution directed at the United States, admonishing it for its misconduct. It appears to be the first resolution in the Society's history that relates to broad issues of international compliance with the laws of war and humanitarian law. In the past 100 years, a century in which "mankind experienced some of the most destructive wars of all times," States have transgressed these international obligations on innumerable occasions. And yet the Society only now sees fit to pass such a resolution. One can only help but ask, "Why now?"

If the US makes detention without trial or POW statuts official policy and torture its de facto national policy, something which has not frequently been the case in the past 100 years, then maybe that's an occcasion for the American Society of anything to speak up. Especially if it's something to do with law.

"People Should Obey the Law" is Political. Discuss.

Exactly which of the following statements from yesterday's proposed resolution of the American Society of International Law (ASIL) is political?

1. Resort to armed force is governed by the Charter of the United Nations and other international law (jus ad bellum)
2. Conduct of armed conflict and occupation is governed by the Geneva [Conventions] of August 12, 1949 and other international law (jus in bello)
3. Torture and cruel, inhuman, or degrading treatment of any person in the custody or control of a state are prohibited by international law from which no derogations are permitted.
4. Prolonged, secret, incommunicado detention of any person in the custody or control of a state is prohibited by international law.
5. Standards of international law regarding treatment of persons extend to all branches of national governments, to their agents, and to all combatant forces.
6. In some circumstances, commanders (both military and civilian) are personally responsible under international law for the acts or their subordinates.
7. All states should maintain security and liberty is a manner consistent with their international law obligations.

This is actually pretty tame stuff. Statements 1-6 are pretty standard boilerplate recitations of well-known principles of international law. (For example, I think you would be hard-put to find a teacher of international law in any civilized country who would give a student credit for writing the opposite on a final exam.) Number seven just says that countries should follow the law.

So what is "political"? And if this is "political," what's non-political? Cowed silence in the face of barbarity?

Red Cross Ends Decade-Long Injustice

Thanks to Opinio Juris for providing a pointer to a new International Committee of the Red Cross statement. It announces the adoption of a Third Optional Protocol making a "Red Crystal" a symbol on par with the long-standing "Red Cross" and "Red Crescent". In so doing it finally -- after decades -- makes it possible for an Israeli relief organizaiton to join.

About time.

UM Arbitration Event Tuesday Evening

I'm going to this one.

The Office of International and Foreign Graduate Programs and Shutts & Bowen, LLP present

Dr. Robert Briner, Chairman of the International Court of Arbitration International Chamber of Commerce, Paris, France

&

Loraine Brennan, Esq., Director, Arbitration and ADR, North America International Court of Arbitration, New York, New York

"Current Trends In International Arbitration"

Tuesday, November 8, 2005

8:00 p.m. – Reception, Alma Jennings Foundation Student Lounge

8:30 p.m. – Lecture, Room F109

Dr. Briner is Chairman of the International Court of Arbitration at the International Chamber of Commerce in Paris and a partner in the law firm Lenz & Staehelin in Geneva. Born in Switzerland, he received his Doctor of Law from the University of Zurich prior to being admitted to the bars of Zurich, Geneva, and Fribourg and becoming a fellow of the Chartered Institute of Arbitrators in London. Mr. Briner is also Chairman of Panel E4 of Commissioners of the United Nations Compensation Commission and a member of the Claims Resolution Tribunal for Dormant Accounts in Switzerland. He is the author of numerous publications on arbitration, including the International Handbook on Commercial Arbitration. In addition to English, he is fluent in German and French.

As Director of Arbitration and ADR, North America, ICC International Court of Arbitration, Lorraine M. Brennan serves as the American advisor to the International Court of Arbitration of the International Chamber of Commerce (ICC) in Paris, France. Ms. Brennan advises North American attorneys and companies on all phases of ICC arbitration, including negotiation of arbitration clauses, requests for arbitration, procedural issues, and enforcement of arbitration awards. Prior to assuming this position, Ms. Brennan served as the Director of Arbitration and Intellectual Property and Legal Counsel at the USCIB, the U.S. affiliate of the ICC. In her role as Director of Intellectual Property, she assisted in formulating and implementing U.S. policy with respect to intellectual property issues and advised U.S. companies on the latest developments in the intellectual property rights field. She is an adjunct Professor of Law at Cornell Law School in Ithaca, New York, teaching international business transactions, and an adjunct Professor of Law at Georgetown University Law Centre, teaching international business transactions and dispute resolution.

UK presidency of the EU Logo, Modified

The UK Presidency of the EU had a snappy internet logo with flying birds that they were proud of. Someone has improved it:

(Thanks to Joaquín Roy, Jean Monnet Professor & Director, European Union Center at UM)

Even Our Allies Are Going to Hate Us

Spotted via Jurist

An Italian official speaking anonymously said Friday that a judge in Milan has ordered the arrest of 13 CIA agents for their alleged role in aiding the deportation of an imam to Egypt [Washington Post report]. Italian newspapers claim the Milan seizure and deportation of an Egyptian known as Abu Omar in 2003 was part of the CIA’s “extraordinary rendition” program to move terror suspects to a third country without court approval. The reports claim six other agents are under investigation for the deportation of Omar, believed to have fought alongside jihadists in Afghanistan and Bosnia before being taken to a joint US-Italian military base for interrogation. The US Embassy in Rome [official website] would not comment on the report. AP has more.

Suppose a space alien or demon got elected President and decided to try to ruin the country. Short of starting a nuclear exchange (but see Korea, Pakistan, and weapon sales from former USSR), how substantially would this hypothetical being’s conduct differ from the current administration’s policy of polarizing the people, torturing captives, claiming the right to detain US citizens indefinitely in solitary confinement without trial our counsel, huge trade deficits, bankrupting the public fisc, starting a war based on lies, undermining health, safety and environmental rules, and taxing the poor in order to give tax breaks to the hyper-rich? Discuss.

OK, never mind, here’s a simpler problem: Can anyone name three important things this administration has done right? I suppose many might say the initial decision to invade Afghanistan — although the ultimate execution of the mission was so botched that I’d say that doesn’t really count.

Homeland security? Arguably a good idea in principle. So far, mostly money down a rat hole with random assaults on civil liberties.

Seriously: what are this administration’s successes? And don’t say “no more 9/11’s”: I think the administration deserves about the same credit for that as they deserve for failing to prevent the original attack — lots or little, take your pick.

If you are radically anti-abortion, you can fairly count the judicial appointments policy. I wouldn’t, but in some eyes I think that fairly counts as one “success.” Anything else?

Blair Publishes Legal Advice On Legality of Iraq Invasion

UK Prime Minister Tony Blair, whose re-election campaign has been dogged by charges that he joined the invasion of Iraq in the face of advice by his Attorney General that the invasion would be illegal, has published the final draft of the legal advice sent to his office.

I’ve only had time to read this very quickly, but here are my preliminary thoughts. I invite corrections and amplifications.

To the extent that Blair may have claimed in the past that the advice told him the invasion was legal, the document reveals a somewhat more equivocal endorsement, more of the form of “maybe” or “good arguable case, might not ultimately convince a tribunal.’ But the memo clearly doesn’t forbid it.

In domestic UK terms, this may still be damaging, since Blair didn’t disclose the existence of the doubts to Parliament, and thus can be accused of lack of candor. In US terms, the memo is pretty middle of the road, and won’t make partisans on either side terribly happy.

Pentagon Issues Broad Definition of 'Enemy Combatant'

The Pentagon has released a document called Joint Doctrine for Detainee Operations. There’s a lot there and I haven’t digested it all. Three things jump out at me.

First, this document has been in the works for a year. What were they doing before then? What took so long once they started?

Second, as more fully described below, the document sets out a new and very broad definition of who is an “enemy combatant” — the class of persons the Administration claims are outside the protection of the Geneva Convention system, being neither soldier nor civilian (a better reading of the GC system, I’d argue, is that everyone is one or the other). According to the new definition, anyone who is a “affiliated” (what’s that mean?) with a group listed under Executive Order 13224 [i.e. in theory any group identified by Presidential order!] is a potential enemy combatant. That sweeps very broadly indeed.

Third, the document is redolent with exhortations that everyone is to be treated humanely, even Enemy Combatants. And it sets out detailed rules as to how captured persons are to be processed, questioned, etc. In that, it’s something of a critique of practices to date. And maybe a welcome sign of belated reform.

Here’s the section that defines an Enemy Combatant:

c. Additional Classification. In reference to the Global War on Terror there is an additional classification of detainees who, through their own conduct, are not entitled to the privileges and protection of the Geneva Conventions. These personnel, when detained, are classified as enemy combatants.

(1) Enemy Combatant (EC). Although they do not fall under the provisions of the Geneva Convention, they are still entitled to be treated humanely, subject to military necessity, consistent with the principles of GC, and without any adverse distinction based on race, color, religion, gender, birth, wealth, or any similar criteria, and afforded adequate food, drinking water, shelter, clothing, and medical treatment; allowed the free exercise of religion consistent with the requirements of such detention. There is a comprehensive list of terrorists and terrorist groups identified under Executive Order 13224, located at http://www.treas.gov/ofac/. Anyone detained that is affiliated with these organizations will be classified as EC. Furthermore, there are individuals that may not be affiliated with the listed organizations that may be classified as an EC. On these specific individuals, guidance should be obtained from higher headquarters. As defined by the Deputy Secretary of Defense, an EC is defined as:

“Any person that US or allied forces could properly detain under the laws and customs of war. For purposes of the war on terror an enemy combatant includes, but is not necessarily limited to, a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which United States is engaged in an armed conflict. This may include those individuals or entities designated in accordance with references E or G, as identified in applicable Executive Orders approved by the Secretary of Defense.”

Deputy Secretary of Defense global screening criteria, Feb 20, 2004

Reference E – Comprehensive List of Terrorists and Terrorist Groups Identified Under Executive Order 13224 (updates at http://www.treas.gov/ofac)

Reference G Patterns of Global Terrorism. Department of State, 2002 (updates at http://www.state.gov/s/ct/rls/pgtrpt/).

(2) Enemy combatants may be identified into the following sub-categories: (a) Low Level Enemy Combatant (LLEC). Detainees who are not a threat beyond the immediate battlefield or that do not have high operational or strategic intelligence or law enforcement value that requires the specialized type of exploitation capability available at a Joint Interrogation and Debriefing Center.

(b) High Value Detainee (HVD). A detainee who possesses extensive and/or high level information of value to operational commanders, strategic intelligence or law enforcement agencies and organizations.

(c) Criminal Detainee. A person detained because he is reasonably suspected of having committed a crime against local nationals or their property or a crime not against US or coalition forces. Excludes crimes against humanity or atrocities. (Note: this sub-category may also be applied to CIs).

(d) High Value Criminal (HVC). A detainee who meets the criteria of a HVD and is reasonably suspected of having committed crimes against humanity or committed atrocities, a breach of humanitarian law that is an inhumane act committed against any person.

(e) Security Detainee. A civilian interned during a conflict or occupation for his or her own protection.

It’s important to understand that categories (a)-(e) are just subdivisions of the first section, not additions to it. Even so, this definition of “enemy combatant” is both the clearest and the broadest I have yet encountered.

Why the US Needs to Join the International Criminal Court

I used to think that the US should not join the International Criminal Court because it too greatly intruded on our sovereignty. I am more and more convinced that I had it backwards: we need to join the ICC to save ourselves from ourselves.

The heart of the ICC scheme is a complementarity of jurisdiction: the ICC has jurisdiction only over very serious crimes against humanity such as genocide or war crimes. And even then, only if the crime happened in a signatory state or was committed by a national of a signatory state.

And even then the ICC only has the power to act only if the state with jurisdiction over the alleged criminal is unwilling or unable to genuinely prosecute him.

Which brings me to why the ICC is looking better all the time:

Pentagon Will Not Try 17 G.I.’s Implicated in Prisoners’ Deaths: Despite recommendations by Army investigators, commanders have decided not to prosecute 17 American soldiers implicated in the deaths of three prisoners in Iraq and Afghanistan in 2003 and 2004, according to a new accounting released Friday by the Army.

Investigators had recommended that all 17 soldiers be charged in the cases, according to the accounting by the Army Criminal Investigation Command. The charges included murder, conspiracy and negligent homicide. While none of the 17 will face any prosecution, one received a letter of reprimand and another was discharged after the investigations.

This comes on the heels of a bizarre defense offered to Congress by Vice Adm. Albert T. Church III for his report on why no higher-ups are responsible for anything bad:

When pressed to explain why he did not hold anyone accountable for failing to establish clear interrogation procedures in Iraq and Afghanistan, Admiral Church told reporters, “I don’t know who you would have assigned responsibility necessarily to do that.”

When our government admits we have killed 27 POWs (something we used to take rather seriously when it was US POWs in the hands of the Vietnamese and the Viet Cong), tortured who knows how many, and then our government says no one is to be held accountable — that’s when the case for joining the ICC, as a last-gasp line of defense of our decency — seems at its strongest.

The Politics of the Withdrawal from the Optional Protocol to the Consular Convention

Yesterday I blogged the legal issues relating to the US’s decision to withdraw from the Consular Convention. Today I want to explore the politics of it. And they’re somewhat strange.

I don’t of course know what the administration is thinking, and my ability to build a working mental model of the political and legal thinking of the crazed royalists in and around the White House is, I trust, somewhat limited. Nevertheless, from my perch very far outside the Beltway it seems much more likely than not that this move is primarily driven by the Medellin case and the more general problem that foreign states are bringing and winning cases in the ICJ charging failure to inform foreign nationals of their rights under the Consular Convention. These losses, most recently a very quick decision on provisional remedies, interfere with some of our states’ desires to execute foreigners convicted of serious crimes, just as those states execute our own citizens.

The US’s decision to withdraw from the mandatory jurisdiction of the ICJ over violations of the consular convention is a poke in the eye to the ICJ. It adds its mite to the US’s increasing isolation among the civilized and cooperative nations of the world. It – quite intentionally – sets back the cause of the rule of law in the international system. These other effects were probably features, not bugs, in the eyes of the Administration. But they were, I suspect, fundamentally mere side-effects, bonuses..and it is the very casualness with which the administration tolerates such side effects which will magnify the damage they cause.

It’s not hard to understand how this administration might think it scores points with the base – or even the masses – by acting in away that it can describe as both pro-death penalty and anti-world government. But in fact the act of withdrawal from the Optional Protocol (presuming it is even valid) is formally neither. The ICJ, unlike the WTO or the ICC, is about as far from world government as you can get. And were the administration committed to the rule of law domestically, the removal of the ICJ’s ability to beat us over the head with words is also of almost no significance. Because our law instructs our courts (and other government officials) to beat themselves over the head when needed.

Article VI of the U.S. Constitution states that “all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land.” International customary law is also part of federal law: as the Supreme Court reminded us over 100 years ago, in the Paquete Habana case, “International law is part of our law.” And, under the Supremacy Clause of the Constitution, it follows that if the nation is bound to follow international law, that obligation must somehow be communicated to and adhered to by the states. The precise means by which that happens in the absence of legislation may be uncertain; the role of the President and of the federal courts in making that stick may be controversial; but it is clear that the obligation exists in some form. Taking away the compulsory jurisdiction of the ICJ that arises from the Optional Protocol of the Consular Convention will not change that formal obligation, nor so long as the US remains a party to the Consular Convention will our legal obligations under it be diminished in any way.

The decision to walk away from the Optional Protocol is thus revealed as being only one of three things: (1) It could be an act of simple petulance; (2) It could be a studied move of retaliation against the ICJ for other decisions in other areas, a retaliatory act whose subtlety would seem to exceed the capacity of the people who wish to make paleoconservative John Bolton our ambassador to the UN; or (3) most likely, it is an invitation to the states to take it easy on compliance with our legal obligations under the Consular Conventions, obligations which endure past our withdrawal from the Optional Protocol.

That third option is of course another poke in the eye, a destructive thrust aimed not at international system, but at the domestic commitment to the rule of law. That it emanates from people who do not, in their hearts, speech and writings really consider international law to be law in any binding way, and who see the basic sinews of international legality – the Geneva Conventions, for example – as at most annoyances, only makes it worse. And it further calls into question their belief in domestic law.

US Announces Withdrawal From Consular Convention

I am told that the following letter to the UN Secretary-General dated March 7, 2005 has been signed by the Secretary of State and is to be announced in the UN Journal later this week.

Dear Mr. Secretary-General:

I have the honor on behalf of the Government of the United States of America to refer to the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, done at Vienna April 24, 1963.

This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.

Sincerely,

Condoleezza Rice

This raises a couple of interesting legal questions – and a huge political question or two. Today I’ll do the legal questions. Tomorrow - unless other blogs beat me to it - I’ll tackle the political issues.

• Can the US withdraw from the Optional Protocol when that document is silent as to the possibility of withdrawal?
• If so, when is the withdrawal effective?

• What does this mean for the ICJ?
• What does this mean for the US?
• Why now?

For now, just a hint about the politics: Recently the US has lost three death-penalty-related cases before the International Court of Justice (ICJ)concerning failure to ensure that foreign citizens arrested here have a prompt opportunity to seek assistance from their consulate. The Supreme Court is about to hear arguments in the Medellin case about a US state’s duty to comply with an ICJ decision. The manouvering in advance of that case has been nothing short of amazing; excellent coverage of the issues can be found at the SCOTUS Blog.

The US’s decision to withdraw now is thus on the one hand a blow against the very idea of international law with binding effect, an attempt to take some issues off the table before oral argument, and a crude attempt to let states go on violating our international obligations. But on to the technical legal stuff…

Background: Vienna Convention on Consular Relations of 24 April 1963 [hereinafter “Consular Convention”] governs the operation of consular missions and is itself a cognate treaty to the Vienna Convention on Diplomatic Relations of 1961.

The Optional Protocol to the Consular Convention is a short companion document to the Consular Convention; states which adopt the Optional Protocol accept the compulsory jurisdiction of the International Court of Justice. (I’ve quoted the full text of the Optional Protocol at the end of this document.)

Can the US withdraw from the Optional Protocol when that document is silent as to the possibility of withdrawal? If so, when is the withdrawal effective?

This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.

It’s not at all clear to me that this instant withdrawal can be effective.

International law as to treaty withdrawal is a blend of customary law and the Vienna Convention on the Law of Treaties. The US is not a party to the Vienna Convention on the Law of Treaties, but accepts most of it as being declaratory of customary law. (So far as I am aware, the US has not claimed that the convention differs from the customary rule as regards treaty termination, but I’ll return to that below.)

The Vienna Convention on the Law of Treaties has several potentially relevant articles in Section 3, which relates to the “Termination and Suspension of the Operation of Treaties”:

Article 54
Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.

This doesn’t apply: neither the Optional Protocol, nor the Consular Convention itself speak about withdrawal. So that takes us to Article 56:

Article 56
Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

I am not familiar with the travaux préparatoire for the Consular Convention, much less the Optional Protocol, but I’d be very surprised to learn the parties discussed withdrawal. It’s also very hard to argue seriously that the Consular Convention itself implies a right of withdrawal to something almost as fundamental as the Vienna Convention on Diplomatic Relations. The argument regarding the Optional Protocol is a little more complicated. The Protocol doesn’t say that withdrawal is impossible, and I’d think it could be argued that, given it’s a separate and optional agreement, a right of withdrawal could be – if you look real hard – implied.

If the US has a right of withdrawal under the Vienna Convention on the Law of Treaties, then under Article 56 the US has to give twelve months’ notice.

Now things get a bit more complicated. The US is not a signatory to the Vienna Convention on the Law of Treaties. The US generally takes the view that the Convention is declaratory as to customary law - by which the US remains bound - but that view doesn’t apply to every word of every clause. And the twelve-month rule is one which may be more specific than the less-specific rules of reasonableness one generally finds in customary law. Even so, however, I don’t see how the US’s withdrawal can be effective immediately. [I do not know, however, whether there is any relevant state practice regarding the Consular Convention that might argue for any fixed amount of time – if there is, then that likely would control.]

Ironically, were another state to attempt to invoke the compulsory jurisdiction of the ICJ under the Optional Protocol against the US during the next twelve months, the body that would have to decide when (if ever) the US withdrawal became valid is … the ICJ itself.

OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING THE COMPULSORY SETTLEMENT OF DISPUTES. DONE AT VIENNA, ON 24 APRIL 1963

The States Parties to the present Protocol and to the Vienna Convention on Consular Relations, hereinafter referred to as “the Convention”, adopted by the United Nations Conference held at Vienna from 4 March to 22 April 1963,

Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period,
Have agreed as follows:

Article I
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.

Article II
The parties may agree, within a period of two months after one party has notified its opinion to the other that a dispute exists, to resort not to the International Court of Justice but to an arbitral tribunal. After the expiry of the said period, either party may bring the dispute before the Court by an application.

Article III
1. Within the same period of two months, the parties may agree to adopt a conciliation procedure before resorting to the International Court of Justice.
2. The conciliation commission shall make its recommendations within five months after its appointment. If its recommendations are not accepted by the parties to the dispute within two months after they have been delivered, either party may bring the dispute before the Court by an application.

Article IV
States Parties to the Convention, to the Optional Protocol concerning Acquisition of Nationality, and to the present Protocol may at any time declare that they will extend the provisions of the present Protocol to disputes arising out of the interpretation or application of the Optional Protocol concerning Acquisition of Nationality. Such declarations shall be notified to the Secretary-General of the United Nations.

Article V
The present Protocol shall be open for signature by all States which may become Parties to the Convention as follows: until 31 October 1963 at the Federal Ministry for Foreign Affairs of the Republic of Austria and, subsequently, until 31 March 1964, at the United Nations Headquarters in New York.

Article VI
The present Protocol is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article VII
The present Protocol shall remain open for accession by all States which may become Parties to the Convention. The instruments of accession shall be deposited with the Secretary-General of the United Nations.

Article VIII
1. The present Protocol shall enter into force on the same day as the Convention or on the thirtieth day following the date of deposit of the second instrument of ratification or accession to the Protocol with the Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its entry into force in accordance with paragraph 1 of this Article, the Protocol shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.

Article IX
The Secretary-General of the United Nations shall inform all States which may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of instruments of ratification or accession, in accordance with Articles V, VI and VII; (b) of declarations made in accordance with Article IV of the present Protocol; © of the date on which the present Protocol will enter into force, in accordance with Article VIII.

Article X
The original of the present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article V.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-three.

WTO Says US Prohibition of Online Gambling Violates GATS

JURIST reports

The WTO sided with the island nation of Antigua and Barbuda, ruling that US legislation that criminalizes online gambling is in violation of global trade law. In a 287-page report released Wednesday, the WTO concluded that the US inconsistently applied gaming law so as to prejudice foreign countries, in violation of the General Agreement on Trade in Services (GATS).

I guess I have to read it now. And GATS.

Another Bush Triumph for the Rule of Law

Great news from Human Rights Watch! Your constitutional republic at work spreading the Rule of Law around the world!

U.S.: Detained al-Qaeda Suspects ‘Disappeared’ (Human Rights Watch, 12-10-2004): At least 11 al-Qaeda suspects have “disappeared” in U.S. custody, Human Rights Watch said in a report released today. U.S. officials are holding the detainees in undisclosed locations, where some have reportedly been tortured.

The 46-page report, “The United States’ ‘Disappeared’: The CIA’s Long-Term ‘Ghost Detainees,’” describes how the Central Intelligence Agency is holding al-Qaeda suspects in “secret locations,” reportedly outside the United States, with no notification to their families, no access to the International Committee of the Red Cross or oversight of any sort of their treatment, and in some cases, no acknowledgement that they are even being held.  

“‘Disappearances’ were a trademark abuse of Latin American military dictatorships in their ‘dirty war’ on alleged subversion,” said Reed Brody, special counsel with Human Rights Watch. “Now they have become a United States tactic in its conflict with al-Qaeda.”  

Oh goodie, the US joins the proud company of the USSR and fascist latin dictatorships. We are so proud.

The Man Who Would Own Eros

I will never forget my college political philosophy professor mocking John Locke’s attempt to ground the foundations of property on the admixture of labor or property to unclaimed resources by asking whether, were he to legitimately acquire a can of tomato paste and pour it into the ocean, he could therefore claim the ocean as his own.

Think that’s silly? How about Gregory Nemitz of Carson City, Nevada, who claims to own Eros, and wants NASA to pay him $20 for “parking and storage fees” now that it has landed the NEAR Shoemaker spacecraft on “his” asteroid. Basically, the basis of Nemitz’s claim to ownership of Eros is, well, that he claims to own it, and that he’s expending resources to pursue the claim, so it must be his. Oh yes, and that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967, which precludes private ownership of celestial bodies, sounds in the Communist Manifesto, so it must be illegal.

This would be funny if the guy were not (it seems) funded by the sale of beef jerky (I am not making this up, see the bottom of his web site), and appealing (pro se) the loss of his district court case up to the 9th Circuit. Where I confidently predict he will lose again.

(The words “sui juris” on his brief are by the way a giveaway that the appellant is in the grip of a legal cult, akin to the common law court cultists, or the people who think that writing “Without Prejudice UCC 1-207” will somehow have a magic effect on their debts, or who think that they can avoid paying taxes by eschewing Social Security numbers and claiming to be just a state citizen not a citizen of the US.)

Red Cross Wants Information on Missing Detainees

I’ve been going on and on about whether the US is holding people in secret interrogation camps abroad. Now AP reports that the Red Cross Fears U.S. Is Hiding Detainees and has been expressing this concern to the US for some time without getting a satisfactory reply:

But Notari told The Associated Press that some suspects reported as arrested by the FBI on its Web site, or identified in media reports, are unaccounted for.

“Some of these people who have been reported to be arrested never showed up in any of the places of detention run by the U.S. where we visit,” Notari said.

She said she had read media reports that some people are being held at Diego Garcia, a British-held island in the Indian Ocean used as a strategic military base by the United States, but the ICRC has not been notified of any prisoners there.

“We just simply have absolutely no confirmation of this in any formal way,” she said.

The U.S. government has not officially responded to a Red Cross demand for notification of all detainees, including those held in undisclosed locations, she said.

That request was made by ICRC President Jakob Kellenberger in January during a visit to Washington that featured meetings with Secretary of State Colin Powell, Deputy Defense Secretary Paul Wolfowitz and National Security Adviser Condoleezza Rice.

“So far we haven’t had a satisfactory reply,” Notari said.

This is a serious issue.

Today's Trifecta--What Does it All Mean? (Pt. II: Guantanamo)

“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”

So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I’m not entirely happy with how the majority got there.

I would have relied on the treaty, the US’s perpetual control over the territory, and the ousting of any relevant foreign power other than the mythical quality called “sovereignty” which the Cuban government retains—little more than a first right of reversion if the US leaves. The Court mentions this, but an awfully big chunk of its decision relies on domestic habeas jurisdiction, predicated on the district court’s assertion of power over the detainees’ custodian, the Secretary of Defense. (The dissent has a field day with this duality.)

To get to where it wants to go, the majority plays a little fast and loose with precedent, arguing the leading case of Eisentrager was overruled in 1973, a dubious claim. I won’t go into the details—inside baseball for lawyers—except to say that I think Justice Kennedy’s concurrence is much more elegant, and avoids the troubles pointed out by the dissent. Kennedy’s view would not reform the law as much, but it would do what needed doing. Kennedy would grasp the bull of the leading precedent, Eisentrager by the horns, and limit it much more closely to its facts than the government wanted:

The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777–778.

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations.

Justice Scalia responds to these arguments in footnote four of his dissent but I do not find this part of his argument very persuasive:

JUSTICE KENNEDY recognizes that Eisentrager controls, ante, at 1 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees’ confinement—including, apparently, the availability of legal proceedings and the length of detention, see ante, at 3–4. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read §2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer “far removed from any hostilities,” ante, at 3? JUSTICE KENNEDY’s approach provides enticing law-school-exam imponderables in an area where certainty is called for.

Scalia claims Kennedy mis-reads Eisentrager, confusing the constitutional and statutory parts of the case. I don’t think that’s right—the existence of the constitutional right implies that the statues must be read in conformity with it if possible, for reasons Scalia explains earlier in his own opinion. While the parade of horribles Scalia presents do indeed deserve a home on an exam, the advanced course would ask students to discuss the way in which a purportedly formalist judge uses pragmatic arguments when it suits him…and whether the distinction really means that much any more in this age of judicial opportunism.

The dissent (Scalia, with Rehnquist and Thomas) has two points: First, Eisentrager (as they read it) controls, and that’s just fine, so there’s no hearing despite the many differences noted by Kennedy. Second, if Congress wants to change this, it could. That’s actually an under-appreciated truth: this whole litigation would have been unnecessary if Congress had the guts to legislate decency. But then, this whole series of cases would have been unnecessary if Congress had had the guts not to vote Bush the authority to start a war whenever he liked.

Scalia also kindly gives us the short version of what this case stands for:

Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the over-sight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.

One odd part of the debate between the two sides has to do with what if anything we learn from pre-revolutionary English practice. The majority notes that prerogative writs, such as habeas corpus, ran to the “excluded jurisdictions”—even where ordinary statutes did not. The dissent replies that those precedents shouldn’t apply to foreign territory, but it goes off the rails when it says, “All of the dominions in the cases the Court cites—and all of the territories Blackstone lists as dominions, see 1 Blackstone *93–*106—are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on. It is an enormous extension of the term to apply it to installations merely leased for a particular use from another nation that still retains ultimate sovereignty.”

Personally, I cannot see how given the realities of the situation this is anything but at most a minute extension. And to see even the minute part you have to think that “sovereignty” empty of content still matters, a theory only a formalist could love.

Although neither side mentions this, I think that to the extent that the dissent might be correct in saying that the older (or even newer, as in early or mid-20th century) English cases suggest in dicta or otherwise that once “abroad” habeas might be available to citizens but might not be available to detained indigenes, I think the majority was on firm ground in ignoring that aspect of those cases. It is indisputable that the older cases were driven by deep racist assumptions about local peoples that permeated both the British colonial and the British domestic judiciary. This country is right to take the spirit of those decisions and lose the dross.

The dissent gets another thing right, more of less, noting the peculiarity of a ruling that,

confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop.

That is an odd result. But it is less odd and disturbing than one that left detainees no recourse in our courts even if they were being tortured. Not that torture could ever happen, of course.

Guantanamo is NOT a Lawless Place

The main opinion is by Stevens. The whole LONG thing is here (.pdf). I’m reproducing the syllabus in the jump.

RASUL ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMIBA CIRCUIT
No. 03–334. Argued April 20, 2004—Decided June 28, 2004*
Pursuant to Congress’ joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Af-ghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba’s ultimate sovereignty, but giving this country complete juris-diction and control for so long as it does not abandon the leased ar-eas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U. S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.
Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4–17.
(a) The District Court has jurisdiction to hear petitioners’ habeas challenges under 28 U. S. C. §2241, which authorizes district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held “in custody in violation of the … laws … of the United States,” §§2241(a), ©(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.” Pp. 4–16.
(1) The Court rejects respondents’ primary submission that these cases are controlled by Eisentrager’s holding that a District Court lacked authority to grant habeas relief to German citizens captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incar-cerated in occupied Germany. Reversing a Court of Appeals judg-ment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, © were captured outside U. S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U. S., at 777. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tri-bunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted criti-cal facts were relevant only to the question of the prisoners’ constitu-tional entitlement to habeas review. Ibid. The Court’s only state-ment on their statutory entitlement was a passing reference to its absence. Id., at 768. This cursory treatment is explained by the Court’s then-recent decision in Ahrens v. Clark, 335 U. S. 188, in which it held that the District Court for the District of Columbia lacked juris-diction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute’s phrase “within their respective jurisdic-tions” required the petitioners’ presence within the court’s territorial ju-risdiction, id., at 192. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494–495, that such presence is not “an invariable prerequisite” to the exercise of §2241 jurisdiction because habeas acts upon the person holding the pris-oner, not the prisoner himself, so that the court acts “within [its] spective jurisdiction” if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisen-trager’s holding, Eisentrager does not preclude the exercise of §2241 jurisdiction over petitioners’ claims. Pp. 6–11.
(2) Also rejected is respondents’ contention that §2241 is limited by the principle that legislation is presumed not to have extraterrito-rial application unless Congress clearly manifests such an intent, EEOC v. Arabian American Oil Co., 499 U. S. 244, 248. That presump-tion has no application to the operation of the habeas statute with re-spect to persons detained within “the [United States’] territorial juris-diction.” Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. By the express terms of its agreements with Cuba, the United States exercises com-plete jurisdiction and control over the Guantanamo Base, and may con-tinue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute’s geographi-cal coverage to vary depending on the detainee’s citizenship. Aliens held at the base, like American citizens, are entitled to invoke the fed-eral courts’ §2241 authority. Pp. 12–15.
(3) Petitioners contend that they are being held in federal cus-tody in violation of United States laws, and the District Court’s juris-diction over petitioners’ custodians is unquestioned, cf. Braden, 410 U. S., at 495. Section 2241 requires nothing more and therefore con-fers jurisdiction on the District Court. Pp. 15–16.
(b) The District Court also has jurisdiction to hear the Al Odah pe-titioners’ complaint invoking 28 U. S. C. §1331, the federal question statute, and §1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed these claims for want of jurisdiction because the petitioners lacked the privilege of litigation in U. S. courts. Nothing in Eisentrager or any other of the Court’s cases categorically excludes aliens de-tained in military custody outside the United States from that privi-lege. United States courts have traditionally been open to nonresi-dent aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 578. And indeed, §1350 explicitly confers the privilege of suing for an ac-tionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners are being held in military custody is immaterial. Pp. 16–17.
(c ) Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners’ claims are not here addressed. P. 17.
321 F. 3d 1134, reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined.

Bush Ordered "Humane" Treatment in Feb. 2002. Then What?

This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.

This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don’t have rights, but doesn’t say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.

The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”

al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it’s possible to tell who is al-Qaida and who isn’t just by looking at them?]

al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).

The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).

Note also what’s not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there’s a separate order for the CIA with more … flexibility?

It’s also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President’s closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don’t know what if anything came of it.

In short, we don’t know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.

UPDATE: The New York Times reports

White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.

Full text of the Feb. 7, 2002 Bush order below.

1. Our recent extensive discussions regarding the status of al-Qaida and Taliban detainees confirm that the application of Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al-Qaida and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving “High Contracting Parties,” which can only be states. Moreover, it assumes the existence of “regular” armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm — ushered in not by us, but by terrorists — requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.

2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.

5. I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.

6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.

PS. It’s just a minor point, but AFAIK the text of this memo was released after the evening news, and late for tomorrow’s papers. Was this an attempt to lessen coverage? Or maybe an attempt to get the papers to rely on whatever spin points were being leaked this afternoon?

Update: Judging from the stories in tomorrow’s newspapers, it made their deadlines!

Please, No US Gulag

Back in May we learned of allegations of excessive violence in a CIA-run secret prison and about the CIA’s successful move to exempt itself from any restraints on questioning methods that might apply to the armed forces. (Then we learned about the various Torture Memos, which cast doubt on whether those restraints existed….)

Just yesterday we learned about one, then another, Rumsfeld-approved ‘ghost’ detainee, unpersons, hidden from the Red Cross, in violation of the 4th Geneva Convention. Oh, wait, it’s today now, make that 13 ghost detainees.

It remains unclear how many of CIA prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them. Until now I had not seen an attempt to list the military prisons either.

Thanks to a report released yesterday, we now have a start on some numbers.

In Ending Secret Detention (.pdf), Human Rights First (formerly the Lawyers’ Committee for Human Rights), compile a list of the US world-wide prison empire, a list dominated by military-run camps in Iraq and Afghanistan.

Consider it a first approximation. It’s still a long list:

AFGHANISTAN

Disclosed

• Collection Center at the U.S. Air Force Base in Bagram.
• Detention facility in Kandahar (an "intermediate" site, where detainees await transport to Bagram).
• Approximately 20 "outlying transient sites" (used to hold detainees until they may be evacuated either to Kandahar or Bagram).

Suspected

Detention facilities in:

• Asadabad*
• Kabul*
• Jalalabad*
• Gardez*
• Khost*
• CIA interrogation facility at Bagram
• CIA interrogation facility in Kabul (known as "the Pit")

*These sites may be part of the approximately 20 "outlying transient sites."

GUANTANAMO BAY, CUBA

Disclosed

• U.S. Naval Base at Guantanamo Bay

IRAQ

Disclosed

• Abu Ghraib (near Baghdad)
• Camp Cropper (near the Baghdad Airport)
• Camp Bucca (near Basra)
• Nine facilities under division or brigade command

Facilities run by military divisions:
• 1st Infantry Division DIF (Tikrit)
• 1st Marine Expeditionary Force DIF (Al Fallujah)
• 1st Cavalry Division DIF (Baghdad)
• 1st Armored Division DIF (Baghdad)
• Multi-National Division-South East (Az Zubayr)


Facilities run by military brigades:
• Dayyarah West (Multi-National Brigade - North)
• Tal Afar (Multi-National Brigade - North)
• Al Hillah (Multi-National Division - Center South)
• Wasit (Multi-National Division - Center South)

In addition, there are a number of "brigade holding areas in division sectors" where detainees may be held up to 72 hours before transfer to Division facilities.

Ashraf Camp. Ashraf Camp is a detention facility for Mujahideen-E-Khalq (MEK), an Iraqi based organization seeking to overthrow the government in Iran. Ashraf Camp was disclosed as a detention site for MEK detainees in February 2004, but as of June 11, 2004, the Coalition Press Information Center (CPIC) refused to discuss the status or location of the MEK detainees.

PAKISTAN

Suspected

• Kohat (near the border of Afghanistan) Alizai

DIEGO GARCIA

Suspected

• United States and United Kingdom officials deny repeated news reports indicating that at least some individuals are being detained on the British possession of Diego Garcia, including, at one time, the leader of the Jemaah Islamiyah, Hambali (Riduan Isamuddin).

JORDAN

Suspected

• Al Jafr Prison (CIA interrogation facility)

UNITED STATES

Disclosed

• Naval Consolidated Brig (Charleston, South Carolina). This facility is where the U.S. Government is detaining at least three individuals as "enemy combatants": two U.S. citizens, Jose Padilla and Yaser Hamdi, as well as a Qatari national residing in the United States, Ali Saleh Kahlah al-Marri.

Suspected

• U.S. Naval Ships: USS Bataan and USS Peleliu.

The Report — which is really excellent by the way — also takes a stab at estimating how many people are being detained in these camps. Big numbers in Iraq, Guantanamo, and several hundreds here and there as well.

The Report concludes with some sensible recommendations to the Administration, although there’s not a bat’s chance in hell it will adopt them:

Human Rights First … calls on the Bush Administration to take the following critical steps:

1. Disclose to Congress and the ICRC the location of all U.S.-controlled detention facilities worldwide, and provide a regular accounting of: the number of detainees, their, nationality, and the legal basis on which they are being held.

2. Order a thorough, comprehensive, and independent investigation of all U.S.- controlled detention facilities, and submit the findings of the investigation to Congress.

3. Take all necessary steps to inform the immediate families of those detained of their loved ones’ capture, location, legal status, and condition of health.

4. Immediately grant the ICRC unrestricted access to all detainees being held by the United States in the course of the global “war on terrorism.”

5. Publicly reject assertions by administration lawyers that domestic and international prohibitions on torture and cruelty do not apply to the President in the exercise of his commander-in-chief authority.

6. Investigate and prosecute all those who carried out acts of torture and other cruel, inhuman or degrading treatment in violation of U.S. and international law, as well as those officials who ordered, approved or tolerated these acts.

7. Publicly disclose the status of all pending investigations into allegations of mistreatment of detainees and detainee deaths in custody.

(News account of the report spotted via the Yin blog.)

Cecil Turner Has A Point

In a comment to my earlier item, The Disappeared, Cecil Turner asks why I called the ‘ghost’ detainee in question a ‘confirmed POW’. And, re-reading the article I have to say that he’s basically right. The New York Times didn’t tell us much about the conditions under which the unnamed prisoner was captured, or what his citizenship was, so it seems I jumped to conclusions. And, in fact, I just found this recent Reuters article, Rumsfeld Acknowledges Hiding Iraqi Prisoner which says the detainee is an Iraqi civilian, not a POW.

That doesn’t change the bottom line as much as you might think, however. As a civilian internee, he has rights too, under the Fourth Geneva convention, which also don’t appear to have been observed. The best case for the US might be Art. 5 of 4th Geneva:

Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.

While this might justify stopping letters home, it doesn’t justify hiding the detainee’s existence from the Red Cross, or failing to give him an ID number, or deporting him (cf. 4th Geneva, Art. 76: “Art. 76. Protected persons accused of offences shall be detained in the occupied country.”). Also, it would be surprising to hear the US argue that the security situation in Iraq, which we’re usually told is so greatly improved, remains so bad as that the security situation would be undermined by letting the Red Cross visit him. Art. 143 says, “Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.” — have things been that bad all along?.

Of course, for its purposes the administration may have put him into the black hole category of “unlawful combatant,” but I personally do not accept that this category can be used to remove nationals of Geneva Convention signatory states from the reach of those very encompassing agreements on the unilateral say-so of an administration official. I also remain very highly dubious that this can be done even after a military hearing; in any event in this case there appears to have been no such hearing, not to mention none of the follow-on hearings that might be required if the detainee is classed as civilian being held in special circumstances out of extreme military necessity.

I simply do not accept the assertion that membership, much less suspected or reputed membership, in an international criminal organization like al Qaeda, negates a detainees citizenship and its privileges. And if you think about it, that’s not a precedent we’d like to set for our enemies to use against us.

[Several other commentators have asked why in my original post I called this a ‘technical’ war crime. That’s not a term of art; I just meant by that to suggest that although I believe this conduct is seriously wrong, and violates the US’s international obligations, and might in theory be classed as a war crime, it doesn’t seem to me personally be as evil as, say, raping and killing and frankly it’s hard to imagine that it would form the centerpiece of any very hypothetical international prosecution if the subject emerges unhurt. In the highly unlikely event that any of the US’s conduct towards its prisoners ever were to come before an international body — a procedure limited for the gravest and most serious offenses — it will be because of a substantial pattern of serious violence, injuries, or deaths, not just what is reported so far in the case of this particular ‘ghost detainee’.]

The Disappeared

Today’s bombshell is in the New York Times, Prison Abuse: Rumsfeld Issued an Order to Hide Detainee in Iraq.

Let’s count the shockers (we can still be shocked, can’t we?) and estimate the fallout.

Shockers:

1. Rumsfeld (at the CIA’s request—we’ll get to that), ordered what seems at least a technical war crime: putting a confirmed POW in solitary and hiding him from the Red Cross. [Update (6/17): Oops. Not a confirmed POW, a civilian detainee — see Cecil Turner Has A Point.]

2. It’s not a unique case; there is/was a class of “ghost detainees”—disappeared people. This from a country that (with some justice) tied itself up in knots over the fate of its own POWs and MIAs in Vietnam.

3. In addition to being immoral (we knew that), our leaders are not just partially (we knew that) but totally incompetent: having put this guy on ice because he was too important to expose to the Red Cross and so desperately needed to be softened up, the system forgot all about him:

Seven months later, however, the detainee - a reputed senior officer of Ansar al-Islam, a group the United States has linked to Al Qaeda and blames for some attacks in Iraq - is still languishing at the prison but has only been questioned once while in detention, in what government officials acknowledged was an extraordinary lapse.

“Once he was placed in military custody, people lost track of him,” a senior intelligence official conceded Wednesday night. “The normal review processes that would keep track of him didn’t.”

The detainee was described by the official as someone “who was actively planning operations specifically targeting U.S. forces and interests both inside and outside of Iraq.”

But once he was placed into custody at Camp Cropper, where about 100 detainees deemed to have the highest intelligence value are held, he received only one cursory arrival interrogation from military officers and was never again questioned by any other military or intelligence officers, according to Pentagon and intelligence officials.

Things we know already, and that this incident reminds us:

4. Abu Ghraib may be the tip of an iceberg. There are a lot of other military prisons to worry about both in and out of Iraq. One is Camp Cropper, at or near the Baghdad Airport.

5. Even worse is a network of secret CIA prisons in various undisclosed locations, run by people who take the view that none of the rules apply to them. We have no idea how many of these prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them.

Fallout

I. You would think that Rumsfeld would have to resign unless somehow they can make Tenet the fall guy for this. But I am dubious. Yes, this is much more direct and personal authorization — a real smoking gun — than what has come out so far in the torture cases, although there’s serious circumstantial evidence accumulating there too. On the other hand, while putting ‘ghost’ detainees in secret solitary is illegal, and technically a war crime, the effect on the detainees not nearly as horrible as what seems to have happened at Abu Ghraib.

II. People like me, who have been highly dubious about the US acceding to the jurisdiction of the International Criminal Court due to the real and troubling encroachment on our traditional conception of national sovereignty are really going to have to think long and hard about changing sides on this one, or at least accepting jurisdiction with regards to some of our treaty obligations. The last few months argue strongly that the US cannot always be relied on to observe its international law obligations as much as I would have thought and hoped.

III. At some point some of this stuff has to stick to Rumsfeld’s boss. Are we there yet?

OLC's Aug. 1, 2002 Torture Memo ("the Bybee Memo")

The Washington Post has placed online the full text of an August 1, 2002 memo from the Justice Department’s Office of Legal Counsel (OLC) to White House Legal Counsel Alberto R. Gonzales.

A few words of context before substance. The OLC is sometimes called “the Attorney General’s Lawyer”. It’s an elite bureau in the Justice Dept. staffed by very very intelligent and highly credentialed people. Its primary function is to give opinions on matters of constitutionality regarding interdepartmental and inter-branch relations, and to opine on the constitutionality of pending legislation. By all accounts working at OLC is one of the most interesting jobs in government if you are interested in constitutional law or the working of government.

In August 2002, the head of the OLC was Jay Bybee, now a sitting judge on the 9th Circuit. His signature appears on page 46 of this memo.

White House Counsel Alberto Gonzales, who requested this memo, is not the head of the OLC. The White House Counsel is part of the Office of the President, and the Counsel is the President’s staff lawyer, just as the Attorney General is the President’s institutional lawyer; neither of these people however is the President’s personal lawyer.

OK. On to the substance.

The memo is about what limits on the use of force (“standards of permissible conduct”) for interrogations conducted “abroad” are found in the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment ( Torture Convention) “as implemented” by 18 USC §§ 2340-2340A (the Torture statute).

The memo concludes that the restrictions are very limited — that only acts inflicting and “specifically intended to inflict severe pain or suffering”, whether mental or physical, are prohibited. Allowed are severe mental pain not intended to have lasting effects (pity if they do…), and physical pain less than that which acompanies “serious physical injury such as death or organ failure” (p. 46). Having opined that some cruel, inhuman, or degrading acts are not forbidden, only those that are “extreme acts” (committed on purpose), the memo moves on to “examine defenses” that could be asserted to “negate any claims that certain interrogation methods violate the statute.”

• This is not a draft, but it’s not an action document either. It’s legal advice to the Counselor for the President. The action document was Gonzales’s memo to Bush.

• This OLC document is a legalistic, logic-chopping brief for the torturer. Its entire thrust is justifying maximal pain.

• Nowhere do the authors say “but this would be wrong”.

• Lots of the (lousy) criminal law legal reasoning in this memo is picked up in the Draft Walker Working Group memo

• This memo also has a full dose of the royalist vision of the Presidency that informs the Draft Walker memo. In the views of the author(s), there’s basically nothing Congress can do to constrain the President’s exercise of the war power. The Geneva Conventions are, by inevitable implications, not binding on the President, nor is any other international agreement if it impedes the war effort. I’m sure our allies will be just thrilled to hear that. And, although the memo nowhere treats this issue, presumably, also, the same applies in reverse, and our adversaries should feel unconstrained by any treaties against poison gas, torture, land mines, or anything else? Or is ignoring treaties a unique prerogative of the USA?

Synopsis and commentary:

Pages 2-13 are the same sort of unconvincing criminal law analysis that others have critiqued in the Walker Working Group memo

Admitting that the Torture Statute is designed to implement the Torture Convention, and that therefore the interpretation of the treaty should inform one’s interpretation of the statute, page 14 of the Bybee memo starts in on the Torture Convention. It finds in the Convention a distinction between the worst acts of torture and lesser acts of “cruel, inhuman or degrading treatment or punishment”. (P. 15) That’s fair enough.

Then things get weird. When the Senate ratified the Torture Convention in 1994 it stated “[t]hat the United States considers itself bound by the obligation under Article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” 136 Cong. Rec. 17491 (Oct. 27, 1990).

It’s obvious (I hope) that the various horrors the memo would allow, such as hurting prisoners a great deal (but not quite to the point of ‘torture’), drugging them, scaring them, and so on, indeed very many things we would call “cruel, inhuman or degrading” would be the sort of thing that we would domestically prohibit as “cruel and unusual” punishment. But if that’s right, then the memo is deeply, horribly, wrong.

So, here’s how they try to reason out of that hole: It’s not the Senate’s view that really counts. No, it’s the King’s President’s view of the treaty’s meaning that has the “greatest weight” (p. 16). To get to this conclusion they cite a bunch of court decisions that say the executive’s view is entitled to “great weight” (which it is)…but the difference between “great” and “greatest” is, well, pretty great.

Having decided that it’s the executive branch’s views that matter, the memo then parses the Reagan administration’s submissions to the Senate relating to the proposed ratification of the the Convention. One problem with relying on what the Reagan administration said is that the Senate didn’t ratify the Convention until the first Bush administration. Arguably it did so in reliance on the Bush administration’s submissions which, as the memo delicately puts it used “less vigorous rhetoric” (p. 18). In fact, the Bush administration used language much like that in the Torture Statute; but the memo chooses to rely on the Reagan language instead (p. 19) to find that only the most extreme conduct would be prohibited.

As for what the Senate may have said in the ratification debates, the memo’s attitude is — Who Cares? “[A]part from statements by Executive Branch officials, the rest of a ratification debate is of little weight in interpreting a treaty”. For a statement of the contrary, and widely accepted, view that requires a court to consider legislative sources, see Restatement (3rd) of the Foreign Relations Law of the United States § 325 comment 5.

Despite the increasingly heard right-wing complaint that the Supreme Court should not rely on the decisions of foreign courts, the Memo then turns to what other nations have said constitutes torture. The most important case on which the Memo relies is “Ireland v. United Kingdom”:, a 1978 decision of the European Court of Human Rights which held that “interrogation in depth” involving “five techniques” was not “torture” but merely “inhuman and degrading treatment”. The five techniques were:

a) wall-standing: forcing the detainees to remain for periods of some hours in a “stress position”, described by those who underwent it as being “spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers”;

b) hooding: putting a black or navy coloured bag over the detainees’ heads and, at least initially, keeping it there all the time except during interrogation;

c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise;

d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep;

e) deprivation of food and drink.. subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations.

If one believed that US law banned only “torture” and not mere “inhumane and degrading treatment” then I think the Memo would be right to rely on this precedent. The key issue is whether that initial distinction is right.

(The memo also noted, at pp. 30-31, the Israeli Supreme Court’s decision in “Public Committee Against Torture in Israel v. Israel”:, 38 LL.M. 1471 (1999), which discussed even more aggressive measures and found them to be “inhuman and degrading”. The Bybee Memo argues somewhat unpersuasively that this means the Court did not believe them to be torture, a reading it buttressed by noting that Court accepted there might be a necessity defense in some cases. I’m no expert here, but I’m dubious: the Israeli Supreme Court was ruling in a charged and political case, and was very mindful of the potential effect on international public opinion. It had every incentive to avoid the word ‘torture’; as for the necessity defense, the Israeli rule, like the US rule, contemplates permitting some things under domestic law that violate international law. “Necessity” in Israel is seen as touching national survival.)

Page 31 returns us to Wonderland. Here the memo reverses field and says, basically, if we were wrong about any of this stuff and the statute did ban an interrogation technique then the statute would be unconstitutional as an impermissible encroachment on the President’s Commander-in-Chief power to wage a military campaign, especially in circumstances “unprecedented in recent American history”. (Note the qualifier: it is NOT the first time we’ve had an attack on our shores or even on core government institutions. After all, the British burned the White House in 1814.) The next couple pages recite what a great threat Al Qaeda is, and the great national effort to fight it, concluding that “the capture and interrogation of such individuals is clearly imperative to our national security and defense” as they could tell us information that would prevent future attacks.

[In what now must seem highly ironic this section of the memo concludes by citing Padilla’s arrest as an example of the valuable intelligence that could be gathered to prevent future attacks on the US. (In fact, by all accounts other than the Justice Department’s, Padilla was at worst a nasty, ill-intentioned incompetent or perhaps just a big talker; his lawyer argues he was a guy who soured on Al Qaeda and made up stuff so they’d let him go back to the US).]

The memo then argues (pp. 33- ) that any criminal statute such as the Torture statute, which might be read to limit the President’s authority to wage war must be read to avoid this constitutional problem. It’s certainly right that reading statutes to avoid constitutional problems is a good interpretive strategy. The problem here, as I’ve suggested previously, is that there isn’t actually much of a constitutional problem here: a President negotiated the statute, the Senate ratified it, both houses of Congress passed implementing legislation that a different President signed. Treaties are the law of the land. Once implemented in legislation (few treaties are “self-executing,” so legislation is almost always needed), the President has a duty to take care that they be faithfully executed unless Congress relieves him of that obligation. That didn’t happen here.

The memo argues (p. 35) that Congress “may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.” Either this is just bunk, or the Geneva conventions, the prohibitions on the use of poison gas, all the rest of the web of international agreements to which the US is a party, are so much tissue paper. We’re no longer committed to the rule of law, but the rule of force. (In fact what the OLC seemed to argue for in other memos was a double standard in which international law still applied to everyone else.)

In any case, there’s an enormous difference between unfettered discretion to move troops around on the battlefield and unfettered discretion to order war crimes. One has to do with determining what tools the President has available to conduct the war, the other with the conduct of it. Congress has a great say in the first, even if it has no say in the second.

[Update (6/14/04 12:10): In response to a question, I guess I should clarify this: Congress has discretion to choose the tools available to the President. It can rule some practices unlawful, either under its Art I, sec. 8, para. 14 authority “To make Rules for the Government and Regulation” of the armed forces or under the Art. VI Treaty power. I would argue it can order all troops leave a given country, if only under the power of the purse. But it cannot direct a brigade to go here or there in the field of battle.]

Page 36 pulls back a bit in the direction of reality. Perhaps realizing that its argument is a little daft, the memo considers the possibility that “[i]t could be argued that Congress enacted 18 U.S.C. § 2340A with the full knowledge and consideration of the President’s Commander-in-Chief power, and the Congress intended to restrict his discretion in the interrogation of enemy combatants.” But the visit is merely temporary, for the memo quickly asserts that even if this were the case, “the Department of Justice could not could not [sic] enforce Section 2340A against federal officials acting pursuant to the President’s constitutional authority to wage a military campaign”.

Note that the argument here is not that the DOJ should use its prosecutorial discretion, but rather that it would have a legal duty to abstain from prosecution. Why couldn’t the DOJ prosecute what appears to be a crime? Because the President’s power to protect the nation’s security is paramount (p. 36), and plenary, especially “in grave and unforseen emergencies” (p. 37).

Now, there really is great substance to the argument that the President’s powers are at its apex if he has to repel a sudden attack on the US. I think all constitutional scholars would agree with that. But the scenario to which this applies is the invading army, the advancing missile or aircraft, not the detainee captured half way across the world.

By page 39 of the memo, however, we’re back to the Vesting Clauses of the Constitution, and the argument the President is a law to himself regarding anything touching military matters. “Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” And since intelligence gathering is so critical to modern warfare against terrorists, Congress certainly can’t interfere with that.

In short, it’s the same Nixonian argument all over: the DOJ can’t prosecute anyone who, in anything arguably connected to the war effort, does what the President tells them to.

But that’s not enough. The Memo then turns to other defenses besides Presidential authorization that might be raised by a person accused of torture. [I take it that this section of the memo applies to both accusations of “torture” which the authors admit is torture and accusations of “torture” that the memo writers would characterize as mere “cruel, inhuman, or degrading acts” that are not actual torture, but it’s a little vague on this, and it’s conceivable the authors mean this section only to apply to the latter. The memo speaks of force, even deadly force, which suggests it includes what they call torture, but elsewhere it notes that the force must be “proportional” to the need; given that the “need” is national security, and the memo treats this as the summum bonum, I read the memo to intend the defenses potentially to apply to all uses of force including the most severe torture.]

The first is the “necessity” defense, the second is a notion of “self-defense”. I will leave it to others to skewer these. But I do feel a need to point out just how far down the slippery slope this memo goes by page 45. It argues that otherwise criminal individual acts can be defended by invoking the nations’s not the individual’s right to self-defense (and even in a footnote argues that there’s a relevant analogy to the right to national self-defense under international law. And this applies to suspected prospective attackers and their associates as well as soldiers in the field. How this differs from saying that if the US even suspects anyone of wanting to harm it, it can do anything it wants to them is not clear on first reading.

Ultimately, the best legal commentary on this memo may belong to Professor Jay Leno:

According to the “New York Times”, last year White House lawyers concluded that President Bush could legally order interrogators to torture and even kill people in the interest of national security - so if that’s legal, what the hell are we charging Saddam Hussein with?

Remember: the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.

Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I’ve concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be ‘cruel and unusual punishment’ under the Constitution. This acknowledgment does not, however, infuse much of what follows.

2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law “cannot bind the Executive Branch under the Constitution because it is not federal law” and in particular clear executive decisions would be “controlling” law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document — is a copy available anywhere?]

In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) — although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It’s agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It’s not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that “international law is part of our law” in The Paquete Habana (1900).

3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct—they can be read that way—but I think it would be wrong to read them that way, and it’s certainly not compelled.

4. Then there’s a long discussion of what is or isn’t torture, with much fine parsing of the torturer’s intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that “the letter killeth, but the spirit giveth life,” an ironic property given the identity of the lead author.

5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys “complete discretion”. That the President’s powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

6. A similar error infuses the paper’s discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President’s military authority to run a campaign means that the Torture statute “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority” (i.e. all military interrogations in wartime) because — I am not making this up, they are — “Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” In short, according to this memo, on the field of battle the President’s authority is absolute (recall that the English commander-in-chief was an official who reported to George III). “Congress may no more regulate the President’s authority … to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties “shall be the supreme Law of the Land”. We’ve known that this means what it says since at least Missouri v. Holland, if not long long before.

It is generally agreed — and I certainly believe — that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it’s a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that’s a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.

But that’s all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.

Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can’t subject to them to acts that would be ‘cruel and unusual’ due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I’d add “in all cases”, since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole — which to the extent it exists is not designed to allow coercive questioning — the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the “government interest here is of the highest magnitude” (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn’t come to any specific conclusions about what’s in and what’s out.

8. There’s an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I’m going to skip over those. Similarly, I’m not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, “even in war limits to the use of force exist” and these are enforced by the military justice system.

The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President’s supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here’s what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):

“Legal doctrines could render specific conduct, otherwise criminal not unlawful.

See discussion of Commander-in-Chief Authority, supra.

Oddly, there’s no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ — by exercising the Pardon power. (Perhaps it’s not so odd — unitary executive partisans don’t want to admit that the Pardon power is how the President balances Congress’s lawmaking power; they’d rather have the President in effect legislate.)

9. The final section of the 56 pages in the version posted online (there’s obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

10. This memo is labeled “draft”. Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.

If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, “I was just following orders” is NOT (and should not be) a defense.

[Note: I have corrected the paragraph numbering and a number of typos. 6/9/04 10am]

Alberto Gonzales Memo: Paving the Way for War Crimes?

MSNBC has the full text of the memo by White House Counsel Alberto Gonzales. Aside from its fundamental callousness and lack of moral outrage, there are odd things about it.

Gonzales rejects, without discussion, the concept that if armed people are not entitled to POW status they might still benefit from Geneva III, protecting civilians. Or might be subject to basic norms of decency and due process arising from the Constitution which creates the powers he and his boss exercise.

Even stranger is the odd discussion of the War Crimes statute, 18 U.S.C § 2441. Gonzales opines that one good reason for NOT treating detainees as POWs is that not giving them POW status lessens the chance of subsequent prosecutions against their US captors under the war crimes statute.

Why, you might ask, worry about prosecution at all? Is Gonzales aware of a plan to mistreat the detainees? It sure looks that way.

Gonzales’s first argument against treating al Queda or Taliban fighters as POWs is that doing so would increase the danger of prosecution for “vague” offenses prohibited by the Geneva convention, namely “outrages upon personal dignity” and “inhuman treatment”. Reading those lines today, in the fullness of hindsight, it is very hard to escape the suspicion that Gonzales knew or suspected the sexual humiliation planned for Arab detainees.

Gonzales’s second argument against treating al Queda or Taliban fighters as POWs is that”it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.” (Reading that today, it seems to mean “we might need to torture people”.)

Gonzales’s third reason for treating is the legally weirdest of all:

“it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a solid basis in law that Section 2441 does not apply, which would create a solid defense to any future prosecutions.”

I’m scratching my head trying to figure out what this means, especially as Gonzales has a reputation for being pretty smart.

• Does Gonzales think that the “just following orders” defense will work? I hope not.

• Does Gonzales think that the courts would accept the President’s determination on this as determinative? That’s not totally implausible: a court might see the President’s official determination as somehow being a political question and hence not reviewable. Except that I don’t think any court would do this: the point of the Geneva conventions is to bring decisions like this into law, out of politics. Suppose Bush had ruled that unformed French troops were outside the convention — would that be unreviewable? Unlikely.

• So, on the assumption that Gonzales is smart, I’m puzzled. Does Gonzales have a bad staff?¹ Of course, it could be that Gonzales was making a political not a legal judgement: if the President OK’d it, prosecutors are less likely to prosecute. But to make this the centerpiece of your argument?

The more I look at this thing, the worse it smells.

¹ It cannot be that Gonzales has some crafty theory of qualified immunity up his sleeve. Qualified immunity protects a government official from civil liability so long as his/her “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” i.e. blocks lawsuits when the government actor could have had a reasonable belief that the act was lawful. Trouble is, the only immunity from criminal prosecution is that provided by a pardon. And § 2441 is a criminal not a civil statute. And the only part of §2441 (quoted below) that turns on intent at all is the part that refers to a person who “willfully kills or causes serious injury to civilians” in violation of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Device.

Here’s the full text of 18 USC § 2441.

War crimes

(a) Offense.—Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances.—The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

© Definition.—As used in this section the term ‘war crime’ means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non- international armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

[citation corrrected 6/6/04]

The Berg Detention: Legal Issues

Nicholas Berg’s family says that he was in US custody for all or part of the period before his release, a release followed almost immediately by his capture by Al Qaeda or someone equally vicious. The US government’s denial of this claim is one of the weirdest I’ve ever heard. The US admits:

• “the FBI asked the police to keep Berg in custody while its agents reviewed the case”
• FBI agents met with him repeatedly while he was in custody
• Berg was freed the day after his parents filed suit claiming he was being held by the US

All together, this hardly paints a picture of US authorities with their hands off. Nevertheless, the US maintains that the Iraqi police were the ones responsible for Berg’s detention. But here’s the missing element: why is that relevant?

The United States plans to ‘return’ sovereignty to Iraq on June 30 (although whether this legal action will include any real power is obviously a hotly debated topic in DC right now). It follows that Iraq is not currently sovereign; that sovereignty is being exercised by the occupiers, who might be described as “a coalition of forces” or as “the United States”.

Currently the Iraqi police are an agent of the sovereign power in Iraq. And that’s the US (or the ‘Coalition’ of which the US is the driving force). So either way the US is ultimately responsible, isn’t it?

The New My Lai

I don’t know if the current uprising in Iraq is the new Tet, or even if Iraq is Vietnam or something worse, but I’m fairly sure that Abu Ghraib is the new My Lai (complete with Seymore Hersh exposé). It remains to be seen who gets cast as Lt. Calley, and whether history repeats itself as to the nature of the trial and the exoneration of the chain of command. It looks as if there’s at least a chance that one General, Janis Karpinski — just a reservist after all, and the only female commander in the Iraqi war zone — will get thrown to the wolves, although she’s fighting back and pointing the finger at the CIA, claiming that “the alleged torture involved detainees kept in a special interrogation unit that was off limits to most of the U.S. troops deployed there.”

As the Guardian notes, what happens in the UK will be especially interesting:

If true, the allegations could mean serious criminal consequences for Britain, which, unlike the United States, has signed up to the new International Criminal Court. It has the power to launch war crimes charges of its own against authorities including the commander-in-chief - the Prime Minister - if necessary.

This probably will be spun as evidence that those who objected to signing on to the International Criminal Court were right about the possible consequences. As one who was quite queasy about the ICC’s inroads on national sovereignty, and certainly never a proponent of it, I urge people thinking of making that argument to think carefully. Do you really want to argue that we should not sign on to the ICC because we might be called to account for what appear to be genuine war crimes? (The real fear was, among other things, spurious allegations.).

If anything, this seems to cut the other way. Could it be Abu Ghraib is an argument for the ICC? Only a thorough US investigation, including military, black ops, and civilians, and especially the relevant higher-ups in each group, will suffice to blunt that argument.

WTO Ruling Supports Internet Regulatory Arbitrage

Something I want to read when I get home—the decision by the WTO described (rather summarily) in Las Vegas panics as WTO rules offshore gambling legal. The US is currently engaged in a host of practices, particularly leaning on credit card companies, to block access to off-shore Internet gambling from the US.

The internet gambling issue is a very interesting test of the ability of a government to prevent residents from engaging in regulatory arbitrage.

And it looks like those efforts just took one on the chin.

Cybercrime Treaty Goes Live

Via Michael Geist’s newsletter on Internet law, I learn that the Council of Europe’s cybercrime convention has entered into force due to its fifth ratification — from Lithuania. The US has signed but not yet ratified. The key aspect of the convention is that it imposes a duty on signatories to do Carnivore-like snooping on domestic internet users at the request of a foreign government…so long as the snooping method is consistent with domestic law.

It’s widely believed that the US wrote this and pushed it through the Council, both to get access to foreign communications and especially to impress on Congress that Carnivore in the US should be seen as business as usual, and something demanded by our allies.

Here’s the text of the press release:

Strasbourg, 18.03.2004 – The Council of Europe’s Convention on Cybercrime will enter into force following its ratification today by Lithuania as the 5th country. The Secretary General of the Council of Europe, Walter Schwimmer, has welcomed this important step in the international fight against cybercrime, and has encouraged more countries to ratify the agreement.

The convention, which is the first international treaty on crimes committed via the internet and other computer networks, is the result of four years’ work by experts from the 45-member Council of Europe and from non-member countries including the USA, Canada and Japan.

The main aim of the convention – which focusses in particular on child pornography, computer-related fraud and violations of network security – is to develop a common criminal policy on cybercrime by promoting international co-operation and the adoption of appropriate legislation.

“The Convention on Cybercrime is a ground-breaking agreement which will play a key role in fighting computer-related crime. Cybercrime is a major global challenge which requires a co-ordinated international response - I therefore urge all of those Council of Europe member states which have not yet signed or ratified the convention to do so as a matter of priority,” said the Secretary General.

The Council of Europe is planning a major international conference on “The Challenge of Cybercrime”, which will bring together senior politicians, computer industry leaders and experts from around the world in Strasbourg from 15 to 17 September 2004.

Senior UK Judge Attacks US For Guantanamo Detentions Without Trial

‘Monstrous US justice’ attacked by law lord. Very, very strong words about the Guantanamo detentions from a normally reserved senior English judge: “By denying the prisoners the right to raise challenges in a court about their alleged status and treatment, the United States government is in breach of the minimum standards of customary international law.”

Lord Steyn also called the proposed military commissions “a stain on United States justice” and predicted that they would be regarded as “kangaroo courts,” which he defined as an “irregular tribunal which makes a mockery of justice.”

One of Britain’s most senior judges condemned the American courts last night for a “monstrous failure of justice” by refusing to rule on the claims of Taliban suspects held without trial at Guantanamo Bay in Cuba.

Lord Steyn, a serving law lord, said the United States was acting illegally by holding the men without trial since their transfer from Afghanistan early last year.

…

Lord Steyn, 71, the third most senior law lord, said that under English law the writ of habeas corpus would protect citizens and foreigners. That was consistent with human rights law, which Lord Steyn concluded, the US had broken.

Guardian: Richard Perle Admits Iraq Invasion Was Illegal Under International Law

War critics astonished as US hawk admits invasion was illegal

International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.

In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: “I think in this case international law stood in the way of doing the right thing.”

President George Bush has consistently argued that the war was legal either because of existing UN security council resolutions on Iraq - also the British government’s publicly stated view - or as an act of self-defence permitted by international law.

But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that “international law … would have required us to leave Saddam Hussein alone”, and this would have been morally unacceptable.

French intransigence, he added, meant there had been “no practical mechanism consistent with the rules of the UN for dealing with Saddam Hussein”…

This ‘the ends justified the means’ argument is internally consistent, but it’s weird in the extreme to have all the former critics of humanitarian intervention reborn as bleeding hearts. Or would be if we believed they meant a word of the humanitarian stuff (postwar planning? us?)….

What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows

I usually like Linda Greenhouse’s work, and I’ve been trying to figure out why this news analysis item on the Supreme Court’s decision to hear the jurisdictional aspect of the Guantanamo detainees case is so annoying.

For starters, I don’t find the account of the Court and the Executive going toe to toe while hepped up in “alpha mode” at all convincing. (I also don’t find it attractive, but that’s a different issue.) She writes, “it now appears that the administration laid down a challenge the justices were unwilling to ignore. This was a moment long in coming: the imperial presidency meets the imperial judiciary.” I think this is way over-dramatic for a ruling to grant cert. on jurisdiction.

Greenhouse argues that the administration took a needlessly hard line in arguing the court should deny cert. and this somehow poked a stick in the court’s metaphorical eye. But what else was the Solicitor General supposed to do?

The government won unanimously below on the jurisdictional grounds, there is no circuit split (quite the contrary), so why on earth should they invite the Supreme Court to rule, which can only hurt the Administration’s position? In any case, when a matter has international law overtones — and the question of where our domestic law runs always does — it’s not surprising that the nation’s highest court might think it appropriate to get involved.

Is it true that, “The administration’s argument that the Supreme Court should not even hear the cases was thus a direct challenge to the court’s sense of itself, a battle joined on the court’s own most sacred ground”? No. Not at all. After all, the basis for the administration’s argument, one that prevailed below, is grounded directly in a plausibly apposite decision of that same Supreme Court.

And the claim that the government should have defended the cert petition “on the merits” is just plain wrong: the court below did not rule on the merits, so the merits are not before the Supreme Court.

And, for a final annoyance, after having psychologized the court on the basis of a one-paragraph grant of cert., Greenhouse concludes with this,

The battle over who gets the last word in this round may have little bearing on the fate of the Guantánamo detainees. Even if the court finds jurisdiction, it is highly unlikely that any federal judge would order a detainee’s release over military objections. But that does not diminish the importance of what happened on Monday, when the Supreme Court could have turned away but decided, instead, to decide.

In other words (shorter Linda Greenhouse?),

• I can read the Justice’s hearts and minds and measure their testosterone, but I can’t tell you what they are going to decide.

Maybe I’m just a perennial optimist, but I think the grant of cert. is a marginally good sign. Grants of cert where there’s no circuit split can be just because of the importance of an issue, but sometimes they’re because members of the court think the lower court(s) erred.

And, as noted in an earlier and better Linda Greenhouse item, something can be learned from

a comparison of how the administration phrased the question presented by the two cases with how the justices phrased it in their order granting review. Solicitor General Olson said the question was whether the federal courts had jurisdiction to decide the legality of detaining “aliens captured abroad in connection with ongoing hostilities and held outside the sovereign territory of the United States at the Guantánamo Bay Naval Base, Cuba.”

The Supreme Court, by contrast, said it intended to decide the jurisdiction of the courts to hear challenges to “the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantánamo Bay Naval Base, Cuba.” The court’s question incorporated no assumption about whether the base was or was not “outside the sovereign territory of the United States.”

Which at least leaves open the possibility of a fairly narrow ruling applying only to territory where the US has a perpetual lease and a permanent presenence. That would do, for now.

Fruits of the Bush Doctrine

Putin reaffirms Russia’s right to preemptive strikes

President Vladimir Putin has reaffirmed his position that Russia can resort to preemptive military strikes because the policy is also practiced by the United States.

“If the principle of preventive use of force continues to develop in international practice, then Russia reserves the right to act in an analogous manner to defend its national interests,” Putin said in an interview whose transcript was released Tuesday.

Mind you, this is more bluster than anything else — for now:

But later, speaking in the United States, he assured NATO countries that Moscow was not seeking to adopt a preemptive nuclear strategy.

“Russia still regards nuclear weapons as a means of political deterrence. We do not envisage a scenario or a situation where we would use such weapons first,” said Ivanov on October 9.

Nevertheless, if the Bush Doctrine is to be taken seriously, there’s no way to limit its use to invasions by nations we like — or against nations we don’t like.

It’s probably not too late for the next administration to undo the damage to international legality; given the wide range of candidates, it’s quite unclear whether the next administration will consider this a priority, or even want to.

US Jurisdiction in Guantanamo -- Some Complexities

Earlier, I had what seemed like a great idea:

Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.

On reflection, this isn’t quite as great an idea as it seemed. Or, maybe it is, but it isn’t as simple to get there as I would like.

First problem. Is the treaty-self executing? In the US, most treaties are presumed not to be self-executing, which means that Congressional action is required to give them domestic legal effect. A quick Westlaw search of the US Code reveals nothing that could be seen to give these agreements domestic legal effect except maybe for 18 U.S.C.A. § 7, which defines the “special maritime and territorial jurisdiction of the United States” in a way that might include Gitmo. Even if it does, all it does is make various aspects of US criminal law applicable, not civil suits. I think it ought to be the rule that acquisitions of jurisdiction are self-executing; it’s not at all clear that the Supreme Court agrees.

Second problem. Supreme Court precedent. A little research showed that the Supreme Court makes a rather arbitrary distinction between a mere “possession” over which the US has full control, and territory over which it has “sovereignty”. One could question the wisdom, indeed the meaningfulness, of this distinction, but it’s there in the cases, at least in the statutory construction context.

United States v. Spelar, 338 U.S. 217 (1949), concerned a Federal Tort Claims Act claim arising from an airplane crash at Harmon Field, Newfoundland, an air base leased for 99 years by Great Britain to the United States. In the course of holding that the air base was a in “foreign country” for purposes of the FTCA because it was subject to British sovereignty, the Court stated, “We know of no more accurate phrase in common English usage than ‘foreign country’ to denote territory subject to the sovereignty of another nation.” So by this logic Gitmo is a mere possession, not part of our sovereignty. And our statute laws don’t run there unless Congress explicitly makes them extra-territorial. Without researching more, I don’t know if that necessarily limits claims arising directly under the Constitution, especially habeus claims, but it imposes a potential jurisdictional bar that needs surmounting.

Justice Frankfurter concurred in Spelar, anticipating the modern problem,

The Court’s opinion finds the phrase ‘foreign country,’ in that Act’s restriction against ‘claims arising in a foreign country,’ to be as compelling in excluding the Newfoundland air base, under the kind of control that the United States exercises at these bases, as less than a year ago it found the term ‘possessions’ in the Fair Labor Standards Act to be compelling in including these bases. Vermilya-Brown Co. v. Connell, 335 U.S. 377, 69 S.Ct. 140. To assume that terms like ‘foreign country’ and ‘possessions’ are self-defining, not at all involving a choice of judicial judgment, is mechanical jurisprudence at its best. These terms do not have fixed and inclusive meanings, as is true of mathematical and other scientific terms. Both ‘possessions’ an ‘foreign country’ have penumbral meanings, which is not true, for instance, of the verbal designations for weights and measures. It is this precision of content which differentiates scientific from most political, legislative and legal language.

A ‘foreign country’ in which the United States has no territorial control does not bear the same relation to the United States as a ‘foreign country’ in which the United States does have the territorial control that it has in the air base in Newfoundland. In the entangling relationships between such nations as Great Britain and this country, it is not compelling that ‘foreign country’ means today what it may have meant in the days of Chief Justice Marshall, or even in those of Mr. Justice Brown. The very concept of ‘sovereignty’ is in a state of more or less solution these days. To find a single and undeviating content for ‘foreign country’ necessarily excluding these bases, while ‘possessions’ of the United States is to be deemed as necessarily including them, despite the momentum of historic meaning and experience leading to a contrary significance of ‘possessions,’ is to give the appearance of logically compulsive force to decisions. It fails to recognize the scope of supple words that are the raw materials of legislation and adjudication and is unmindful of those considerations of policy which underlie, consciously or unconsciously, seemingly variant decisions. When so many able judges can so misconceive the implications of our decision in Vermilya-Brown Co. v. Connell, supra, as they have been found to misconceive them, the source of difficulty cannot be wholly with these able lawyer court judges.

Note: Brad DeLong linked to my earlier effort and commented that Guantanamo Bay is a gap in seisin-it is a terra sine domine, a land without a lord, and among the oldest principles of the Feudal and Ancient Common Law is that such a gap in seisin is impossible—that for every square inch of the earth not currently engaged in active military operations, there is a normal peacetime court to take jurisdiction and judge offenses.

I regret to say that our courts are all too comfortable with such gaps. The leading example is Smith v. United States, 507 U.S. 197 (1993), which I used to use as the last reading in my Jurisprudence class. In Smith the Supreme Court held that Antarctica was a “foreign country” for FTCA purposes, even though it was not a country and is “a sovereignless region without civil tort law of its own”. Justice Stevens wrote a brilliant dissent.

It begins,

In my opinion the Court’s decision to grant certiorari in this case was a wise exercise of its discretion. The question whether the United States should be held responsible for the tortious conduct of its agents in the vast “sovereignless region” of Antarctica, ante, at 1180, is profoundly important, not only because its answer identifies the character of our concern about ordinary justice, but also because Antarctica is just one of three vast sovereignless places where the negligence of federal agents may cause death or physical injury. The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946….

The issue at the heart of all this is that I think it ought to be the rule that, as Mr. Dooley put it, ‘th’ constitution follows th’ flag. The Navy, the President, his minions, all derive their power from[*] the Constitution. They must take the bitter with the sweet, and accept the shackles of due process and habeus corpus that come with the great power entrusted to them. I wish I were more confident that the Supreme Court will see it that way.

Don’t underestimate what’s at stake here. A ruling that there’s no way for the Gitmo detainees to get a court to consider their plight may be one that requires no judicial creativity, but it is a ruling that even if they were being killed or tortured by our government (and there are allegations being made by some that prolonged solitary confinement, without any idea how long you will be held, amounts to torture) our courts will not hear them. That should bother you. It bothers me.

[*] typo corrected.

Even If US Courts Don't Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts

In response to my most recent item on Guantánamo Edward Hasbrouck asks this reasonable question: “if courts in the USA say Guantanamo isn’t under their jurisdiction, doesn’t that mean they would have to recognize Cuban jurisdiction?”

The answer to this question is unusually clear: No.

The US has signed two treaties with Cuba that relate to Guantánamo. In 1903 the US and Cuba signed a treaty (US Treaty Series No. 426) which provides,

While on the one hand the United states recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United states of said areas under the terms of this agreement the United states shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments) for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.

The more recent treaty, the Treaty Between the United States of America and Cuba of 1934 (US Treaty Series No. 866) abrogates the 1903 agreement in Article I, but then in Article III states,

Until the two contracting parties agree to the modifications or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and by the President of the United States of America on the 23rd day of the same month and year, the stipulations of that agreement with regard to the naval stations of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have territorial area that it now has, with the limits that it has on the date of the signature of the preset Treaty.

So the Gitmo provisions survive until the US and Cuba agree to change them. And Cuban courts have no jurisdiction to intervene.

Personally, I would be prepared to read the words “the United States shall exercise complete jurisdiction and control” language of the treaty as invoking the powers of all three branches of government, not just the executive. In this view, under Art. VI of the Constitution (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”), the treaty would supply the jurisdiction for the federal courts that they seem to believe they lack under Article III.

This Begins to Explain the Voting on Resolution 1151

The UK’s Daily Telegraph reports Bush gives in to UN over cash for reconstruction. There’s slightly less to this story than the headline suggests as it appears from the text that the UN will get supervision over new, non-US Iraq aid, not over US aid. Still, if there were another secret concession out there somewhere it might begin to explain how the US got all those votes in favor of Security Council Resolution 1151.

IP Justice Says that FTAA Got Infected With Lousy IP Rules

I generally avoid trade law and trade treaties, on the grounds that life is too short. The way trade law is going, however, I may have to make some exceptions. I’ve already had to read up on the dispute settlement rules in major trade treaties to teach International Law, which I’m doing for the first time this year.

Now, IP Justice, a civil liberties group, has just published FTAA: A Threat to Freedom and Free Trade. In it they analyze the Intellectual Property parts of the draft Free Trade Area of the Americas Treaty which is intended to go into effect in 2005. Their summary is scary enough that I think I’ll have to go read the full agreement and see if it is as bad as they say. [Note: Headline corrected.]

The FTAA seeks to unite the 34 democracies in the Western Hemisphere (including the US) to a single trade agreement akin to NAFTA. Parts of the treaty take an aggressive position on harmonization issues—and these are among the controversial parts.

According to IP Justice’s summary, the draft intellectual property rights chapter in the FTAA Agreement will expand criminal procedures and penalties against intellectual property infringements throughout the Americas. One proposal in Article 4.1, they say, would make Internet music swapping a felony throughout the Western Hemisphere in 2005.

Worse, apparently the proposed agreement forbids consumers from bypassing technical restrictions on their own CDs, DVDs and other property, similar to the controversial US Digital Millennium Copyright Act (DMCA). That would ‘lock-in’ the DMCA — just at a time when proposals to repeal part of it are gathering some steam in US Congress.

Ironcially, for a “free trade” agreement, the FTAA would enshrine price discrimination by making illegal to bypass trade barriers such as DVD region code restrictions.

Other frightening stuff in the IP Justice summary:

The draft treaty also imposes new definitions for “fair use” and “personal use,” curtailing traditional fair use and personal use rights to a single copy and only under limited circumstances. This prevents consumers from backing-up their media collections, using their media in new and innovative ways, and accessing media for educational and non-commercial purposes.

Another clause would require all countries to amend their copyright laws to extend copyright’s term to at least 70 years after the life of the author, essentially forcing the new US standard on all other 33 countries in the hemisphere. Although forbidden by the US Constitution, FTAA’s copyright section would allow companies to copyright facts and scientific data.

Another provision requires all domain name trademark disputes to be decided by the Internet Corporation for Assigned Names and Numbers (ICANN), a private and unaccountable organization that is ill equipped to determine the limits of freedom of expression rights or the scope of intellectual property rights. Americans would no longer have access to their local public courts to adjudicate rights over their Internet domain names. [I really got to check this out — that sounds dubious — as the current and highly flawed ICANN procedure provides for subsequent court actions….]

“The FTAA Treaty’s IP chapter reads like a ‘wish list’ for RIAA, MPAA, and Microsoft lobbyists,” said IP Justice Executive Director Robin Gross. “Rather than promote competition and creativity, it is bloated with provisions that create monopolies over information and media devices,” stated the intellectual property attorney.

The next round of FTAA Treaty negotiations will be here in Miami from November 16-21, 2003. Looks like I better read it by then….

Resolution 1151: A Famous Victory or an Infamous One?

The Washington Post is suggesting that the passage of Security Council Resolution 1511 is not a major victory for the Bush administration as “a range of analysts said the final vote, while far better than a withdrawal or a resolution approved with numerous abstentions, is too weak to be considered much of a victory.”

Not so fast. At first glance, Resolution 1511 is a very big win for US contractors seeking to profiteer from the Iraqi reconstruction — and those firms will no doubt make their gratitude felt to the Administration in a tangible way.

One serious and under-appreciated problem the Administration has faced in Iraq is that the US-backed puppet provisional governing Council is not recognized as a true government. Never mind the question of legitimacy — it’s not been recognized as a government because among other things, it lacks the authority to govern. All its decisions have to be approved by the local US viceroy.

Lack of recognition has consequences. First, that the US is bound by the Hague and Geneva conventions, and by customary international law, to play the role of the occupying power until there is a government. As such, US is not supposed to make too many permanent economic decisions, especially when it comes to disposing of natural resources such as oil.

Similarly, international bodies such as the IMF, and many foreign aid donors, have also been reluctant to help in Iraq until they had a proper government to deal with.

In that context, three paragraphs of the Security Council’s latest are potentially important. The Security Council

4. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the Authority;

13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure;

20. Appeals to Member States and the international financial institutions to strengthen their efforts to assist the people of Iraq in the reconstruction and development of their economy, and urges those institutions to take immediate steps to provide their full range of loans and other financial assistance to Iraq, working with the Governing Council and appropriate Iraqi ministries.

(bold added; italics in original)

In other words, (to the limited extent it cared) Resolution 1511 may solve the Administration’s legal problem under international law. Thus it’s open season for privatizing and selling off Iraqi assets, and locking down long-term agreements with US firms.

Plus, the IMF and the donors are told that they no longer have their favorite legal excuse to avoid turning on the aid spigot. Not that they may not think of a new one.

Israel Attacks Inside Syria

Someone please explain to me the difference between Israel’s violation of Syrian sovereignty and the US’s apparent violation of Syrian sovereignty?

I suppose that one difference is that the facts on what happened in the second incident are less easy to come by. UPI reported that the US raid ‘penetrated more than 25 miles into’ Syria but the closest thing to major media to pick up that story seems to have been the Washington Times. It’s clear that the US forces shot at Syrian troops and wounded or killed some of them, then held them for a few days before finally returning them. It’s possible therefore that the second incident did not in fact involve a violation of Syrian territory if (and only if) the Syrians were on the wrong side of the border. It’s odd though, that if they were the US didn’t make more of that violation at the time. Then again, the Syrians clearly decided not to press the issue either once their people were returned.

Note that by asking this question about possible equivalence I’m not trying to suggest that if one is OK, it follows the other must be, but rather the opposite.