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As a matter of rhetoric, maybe. In substance, skepticism is called for. One searches in vain for concrete plans advanced by the candidates for improving America's international law compliance. They do all say that they will respect the Geneva Conventions, but the Bush administration has said the same, and none of candidates explain how they will modify America's counter-terror tactics in order to bring them in line with U.S. treaty obligations. The candidates realize that the voters they seek to attract don't care much about international law or international institutions, so they have no reason to promise to tie their hands with ambitious commitments. It is likely that our next president will think of international law in instrumental terms, just as all our previous presidents have done. To be sure, the next president will have different policy goals (more enthusiasm about reducing greenhouse gas emissions, less enthusiasm about free trade, for example), and these different policy goals will require different types of international cooperation (more for a climate treaty, less for trade treaties), but it's hard to think of a reason why a (say) Democratic president will show more enthusiasm for international law per se than a Republican president or even President Bush, though one can expect that the rhetoric will be more careful and sophisticated.
I discuss this issue with Heather Hurlburt (who disagrees), of democracyarsenal.org, at bloggingheads.tv.
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Few pleasures are more intense than that of contemplating one's ideological opponents being punished for their errors, an activity that we law professors have so far been able to indulge only in our fantasies. But the times are changing, or seem to be. Witness Philippe Sands' almost palpable delight at the prospect of John Yoo and others in the Bush administration being picked up by the police when they are traveling in foreign countries and tried for international crimes in foreign courts: "And for some the future may hold a tap on the shoulder," he purrs. Jack Balkin agrees. Sands has also been involved in a popular play in London titled Called To Account, which features a trial (actually, a pretrial hearing) of former British Prime Minister Tony Blair to determine whether his participation in the invasion of Iraq amounted to a crime of aggression under international law.
I'm all in favor of letting people live out their fantasies, but we're lawyers here at Convictions, and even our fantasies must conform to the rule of law. The principle is that American lawyers should be called to account in foreign courts if their legal advice leads to violations of international law by the United States and (as is virtually always the case) domestic courts offer no remedy. And unless we are to live in a world in which only lawyers go to jail, and not the people who actually make the decisions based on the legal advice, foreign courts are going to have to try the relevant political decision-makers as well. They will be busy.
Nuremberg established the crime of aggression, which though not yet formally incorporated in an international instrument ratified by the United States is widely believed to be a part of customary international law, bolstered by the rules of the U.N. Charter, which permit the use of military force only in self-defense or with the authorization of the Security Council. It is on this premise that Sands' play considers the indictment of Blair—from which it would follow that there should be indictments of Bush and other high-level officials in Britain, the United States, and other countries that participated in the intervention. The invasion of Iraq was not authorized by the Security Council, and it was not an act of self-defense. The crime-of-aggression argument is really not bad—impractical (for both political and jurisdictional reasons), to be sure, but in our fantasies, and on the stage, impracticality is no barrier to action.
Which brings us to the Clinton administration, which in 1999 launched an invasion of Yugoslavia on behalf of Kosovo, its renegade province, now independent. The Clinton administration failed to secure the consent of the Security Council (or even the consent of Congress) but went ahead anyway. In May 1999, the Office of Legal Counsel gave its approval in an oral opinion later memorialized in a memo issued in December 2000. The memo fails to mention that international law prohibited the invasion, perhaps because OLC had exhausted itself trying to prove that Congress had agreed to the use of military force even though the bill to authorize it was voted down. Panting and winded, it had no energy left to address international law. John Yoo, are you listening? Do you see how the pros do it? Next time, refrain from mentioning the Convention Against Torture rather than trying to explain it away.
Should these Clinton lawyers also be "called to account" (along with Clinton himself, of course, and his senior staff, and the former decision-makers and legal advisers of all other NATO countries)? We don't know whether Clinton's lawyers failed to warn him of the relevant international legal prohibitions, or did so only orally, or in a secret memo. Perhaps they gave him good legal advice that he chose to ignore, and they silently resigned their positions in protest. An investigation should be launched so that the truth can be ascertained. Subpoenas issued, witnesses corralled, suspects named. We will also need to look for any legal advice, oral or written, pertaining to other Clinton-era actions that were dubious on international law grounds—the launching of missiles against Afghanistan and Sudan, bombing tactics in Yugoslavia, and the economic sanctions against Iraq, which caused many foreseeable deaths.
Alas, it's not going to happen. International justice has achieved such perfection only in the vivid hallucinations of international lawyers. You former OLC lawyers—next time you're vacationing in Europe, don't be alarmed if you feel a tap on your shoulder. It'll just be me: Boo!
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Today, the Supreme Court handed down an opinion of great importance for understanding America's obligations under international law. The United States is a party to the Vienna Convention on Consular Relations, which requires states to allow foreign nationals to obtain advice from their consulates when they are arrested and to give notice to these foreign nationals that they have this right. Local police in the United States do not always know that they are supposed to do this, and the lawyers assigned to criminal defendants don't always know that they should complain to the court if the local police fail to do this. In most cases, if your lawyer fails to invoke one of your rights before the trial judge, you can't later bring it to the attention of another judge in a habeas proceeding.This is known as the procedural default rule.
In 2004, the International Court of Justice, the judicial organ of the United Nations, held, in a case brought by Mexico against the United States, that depriving foreign nationals of their consular rights under the procedural default rule violates the Vienna Convention. In response, the United States withdrew from the protocol that gave the ICJ jurisdiction over these cases, but the president issued a memorandum instructing state courts "to give effect" to the ICJ's decision with respect to pending cases, including Medellin's. In the Medellin case, there were two issues: whether the ICJ's judgment binds U.S. federal courts and whether, if not, the president's attempt to force state courts to give effect to the ICJ's judgment was lawful. The court answered both questions with a "no."
The legal arguments are interesting, but the larger significance of this case concerns the extent to which international law controls the U.S. government. Consider the following implications of the case:
1. The court interpreted the relevant treaties as "non-self-executing" (they do not create judicially enforceable domestic law because Congress has not incorporated them through legislation) rather than "self-executing." The case will likely make courts in the future less likely to interpret treaties as creating domestic law. If a violation occurs, injured parties will be limited to pursuing diplomatic remedies; U.S. courts will be out of the picture.
2. The court deprived the president of a powerful instrument for forcing American state courts to comply with non-self-executing treaties. In a rare burst of internationalism, President Bush tried to compel American states and their courts to live up to American treaty obligations. But it turns out that he doesn't have the power to do this; he will need to persuade Congress to give him the authority, treaty by treaty.
3. The court expresses skepticism about the claim that the judgment of an international court could ever "automatically" bind federal and state courts, finding it hard to believe that Congress would want "politically sensitive judgments" to be enforced by courts rather than addressed by the political branches.
(Expressing a point that will warm the hearts of realists everywhere, the majority opinion pointed out that when the United States government originally agreed that the ICJ would have jurisdiction over disputes between states, it anticipated that the only way that the prevailing state would be able to enforce the judgment would be by petitioning the Security Council—where the United States holds a veto.)
There is an academic theory that holds that the type of litigation (sometimes called "transnational legal process") exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.
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Of all the striking things about the consolidated cases the Supreme Court is set to hear this Tuesday—presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts—the most striking to me has got to be how little anyone seems to care.
I should say I'm not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often (viz. invariably) I'd get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): "Why doesn't anyone seem to care about this?" First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending). Congress has legislated now repeatedly on the topic. Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views. Academic and popular publications have proliferated on this like copies of Thriller c. 1983. And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years. Not, of course, that there's anything wrong with that. Second, I'm a lawyer, not a public opinion pollster. To the extent one hasn't encountered one's preferred level of rioting in the streets on a particular issue, I'd as soon defer on the "why" question to political scientists, clergy members, and marketing analysts (not necessarily in that order). Third, on what actual basis is anyone asserting there isn't "anyone" who cares? Their own polling? The issue's relative absence on the cover of People magazine?
Now where was I? Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again—I've heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don't get out enough. Whatever the case, I think Geren v. Omar and Munaf v. Geren have the potential to be at least as important as Hamdi, Rasul, and Hamdan—the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power.
While I'm hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I'd be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?
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Despite the years that I've labored in the law of crime, today marks the first time I find myself on a "Convictions" list. Happily, I've assumed the label not in a court of law but in this court of public opinion just launched by Slate. The brains behind this new blog is that lawyer-journalist-veteran extraordinaire, Phillip Carter. My heartfelt thanks to Phil for this opportunity to join what promises to be a spirited online discussion on matters of law, criminal and otherwise.
A brief "Who am I?" to begin my end of this dialogue: Visiting professor of law at the University of California-Berkeley School of Law, on sabbatical from my steady gig as professor of law at the University of California-Davis School of Law (Martin Luther King Jr. Hall). Trained as a federal criminal defense lawyer, I specialize in the study of law's responses to globalization, paying particular attention to how national, regional, and international legal regimes interact as they endeavor to combat atrocity and cross-border crime. Subjects of my recent publications range from Guantánamo and Abu Ghraib to U.S. courts' consultation of extranational norms to the impartiality deficit in international criminal justice. These days I'm at work expanding an earlier biographical study of John Paul Stevens, the U.S. Supreme Court justice for whom I, along with "Convictions" colleague Deborah N. Pearlstein, had the privilege of clerking.
Along with two dozen other women who focus on international law, policy, and practice, I'm a proud member of the year-old IntLawGrrls blog, where I expect to cross-post many of my "Convictions" contributions.
Looking forward to e-talking.