If the recent contentious confirmation hearings of judicial nominee Goodwin Liu and State Department legal advisor Harold Koh are any evidence, the question the role of international law and whether it is proper to use foreign judgements in deciding cases, has quickly joined issues like abortion and executive privelege as a lightning-rod topic that nominees can expect to be grilled on.
With little in the public record to suggest what Barack Obama's Supreme Court nominee thinks about the issue, I spoke with Diane Marie Amann, director of the California International Law Center at UC Davis, and founder of the popular legal blog IntLawGrrls, about how much we can tell about how Elena Kagan sees the world:
JK: What evidence from Kagan's career, might shed some light on her views on international law?
DMA: It's really hard to read the tea leaves. She's done two stints now in the executive branch, in the Clinton and Obama administrations. Both of those administrations have dealt with transnational criminal law, either in the context of the war on drugs or the campaign against terrorism. The positions that would have been taken there would have been very much in favor of expanding the reach of U.S. law enforcement to deal with those issues. The role that she played in helping craft those policies, and most recently [as Obama's solicitor general] in making those arguments in front of the Supreme Court, have to be an important part of trying to assess her stance on these issues.
At the same time, she's not an international lawyer. Her specialty in academia was domestic constitutional law, the law of the U.S. federal court. She did not write on issues related to international law. It's probably fairest to say she comes to the confirmation hearings with an almost clean slate on these issues.
JK: What about the debate over citing foreign case law and using international standards to inform judgements. Do we know anything about she comes down on that?
DMA: Well she certainly is aware of the debate and the controversy around it. In the early 2000s, she invited justice Ruth Bader Ginsburg to defend the practice at a women's leadership summit at Harvard, but she didn't tip her hand. I'm sure she knew Justice Ginsburg would defend it, but she didn't offer any follow-up comment.
JK: If you could question Kagan at her confirmation hearing, what would you ask to find out more about her position on these issues?
DMA: I would be curious to know if she had any training in international law as a law student, in briefs that she's written or policy discussions she's been involved in, or in her work as the law dean, and what the nature of that training was. Then also, her attitude toward it: the question of whether it's appropriate for U.S. courts to look to foreign context and foreign judicial decisions to figure out how to interpret similar provisions in American law is an important question.
I have no doubt that she'll be asked that question. If you look at the recent panel hearing for Goodwin Liu, the nominee to the 9th circuit, a number of senators repeatedly asked Liu that question. In many ways, watching that hearing seemed to me to be a preview to what we can expect with the Kagan hearing. There's not doubt she'll be asked the question. What's open is whether she'll answer it. Justice Sotomayor's hearing last year indicates that she'll probably try to deflect that question.
JK: It does seem like the question of foreign case law has become much more controversial lately, in the confirmation of Harold Koh as legal advisor to the State Department, for instance.
DMA: There's a certain segment of the senate that is extremely concerned about what they perceive as a judicial inclination to follow foreign law. Personally, I believe that they're wrong on their understanding of what the court has been doing. What the Supreme Court did, even in the most noteworthy cases like the juvenile death penalty case, was to try to interpret very open terms like "cruel and unusual punishment" to interpret what those words mean in contemporary society, including within their survey what they call "civilized society," allies of ours and countries that share our traditions - taking their experiences into account but not by any means, being required to follow suit. For a number of senators, the belief is that the justices have been feeling beholden to those foreign judgements.
JK: What are some of the biggest international issues that might come before the court in coming years?
DMA: We know that the U.S. campaign against terrorism will continue for the foreseeable issues. This will raise all kinds of issues that intertwine American domestic law and American obligations under international law, such as the Geneva Conventions and the Convention Against Torture. There's no question that she would be dealing with these issues, perhaps even in her first term.
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Spanish investigative judge Baltasar Garzon has made a name for himself by prosecuting human rights abusers around the world -- including former Chilean leader Augusto Pinochet -- using universal jurisdiction to get around national amnesties. But Garzon is now himself being charged with abuse of power relating to an investigation of murder's and disappearances under the Franco regime. His supporters are now fighting back:
Lawyers representing Argentine relatives of three Spaniards and an Argentine killed during the 1936-39 war will ask the federal courts here Wednesday to open an investigation, and hope to add many more cases in the months to come.
So Garzon's supporters now hope to launch the same investigation - citing the same principles of international law - from Buenos Aires. And while Garzon limited the scope to crimes committed until 1952, the Argentine rights groups hope to address any state terror in Spain from 1936-1977, when its democracy was restored.Attorney Carlos Slepoy, a specialist in human rights law, told The Associated Press the plaintiffs are invoking the principle of universal jurisdiction, which provides that genocide and crimes against humanity "can be prosecuted by the courts of any country.
The choice of Argentina is interesting since it was Garzon who led the charge to prosecute military figures there for crimes committed during the 1976-83 dictatorship.
Garzon is currently being charged with violating a 1977 amnesty law designed to help Spain move on from the Franco years. I don't know nearly enough to weigh in on the legal questions involved here, but politically it doesn't look very good that Spain was willing to let Garzon prosecute abuses in other countries for years, but became uncomfortable with his tactics as soon as he started poking around in his own country's dirty laundry. This type of challenge should have been expected.
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When Justice John Paul Stevens retires this summer he will have served longer than any Supreme Court Justice in history save one -- William O. Douglas. In his decades on the court, Stevens has had a profound influence on several issues -- including one of the central aspects of recent U.S. foreign policy: the "War on Terror".
Stevens has made a couple landmark decisions regarding alledged terrorist detainees from the wars in Afghanistan and Iraq. The first one, Rasul v. Bush, was decided in 2004. He wrote the majority opinion in the case, finding that foreigners held in Guantanamo Bay are under the jurisdiction of federal courts, saying, "They have never been afforded access to any tribunal, 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." This meant that prisoners could now challenge their detainment through legal channels.
Two years later, in 2006, Stevens wrote the majority 5-3 decision in Hamdan v. Rumsfeld. The ruling curbed executive power by arguing that the government had to follow U.S. laws and the Geneva conventions when detaining prisoners of war. Moreover, because neither the president nor Congress has the authority to authorize military tribunals when they can be avoided, they are illegal in this case. When speaking about the use of military tribunals, Stevens argued:
The danger posed by international terrorists, while certainly severe, does not by itself justify dispensing with usual procedures.
Because the procedures adopted to try Hamdan do not comply with the uniformity requirement of Article 36(b), we conclude that the commission lacks power to proceed.
For similar reasons, the commission lacks power to proceed under the Geneva Conventions, which are part of the law of war under Article 21 of the UCMJ.
Common Article 3 of those conventions, which we hold applicable to this case, prohibits the passing of sentences without previous judgment by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized peoples."
With the legal questions surrounding Gitmo far from settled, Stevens' absence will certainly be felt.
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At a Monday lecture in Los Angeles, Bush presidential advisor Karl Rove was given a very, very warm welcome. Audience members called him a war criminal and yelled that he would "rot in hell." One member of activist group Code Pink even approached him with handcuffs to make a citizen's arrest.
This is not the first time Rove's been greeted by a less-than-friendly mob. In March, 2008, Rove spoke at the University of Iowa in front of more than 1,000 people. (Full disclosure: I was a member of the University of Lecture Committee, which invited Rove, and planned and hosted the lecture.) There were a few Rove-sympathizers among the crowd, but the vast majority took the opportunity to scream at him, attempt citizen's arrests, etc., etc., for over an hour. The fracas was later made the first chapter of Paul Alexander's Machiavelli's Shadow: The Rise and Fall of Karl Rove.
But onto the real question: Is Karl Rove a war criminal? The Fourth Geneva Convention of 1949 reads:
Art. 146. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article...
Art.147. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Given that Rove, a political and communications strategist, was in no position to authorize any use of military force, and had no authority to order detention or interrogation policies, it'd seem that he does not in anyway qualify as a war criminal. Looks like these protesters need to get a new line.
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A setback for animal-rights activists in Switzerland:
Voters in Switzerland have rejected a proposal to introduce a nationwide system of state-funded lawyers to represent animals in court. Animal rights groups had proposed the move, saying that without lawyers to argue the animals' case, many instances of cruelty were going unpunished.
But the measure was rejected by around 70% of voters in a referendum.
U.S. "regulatory czar" Cass Sunstein wrote in favor of establishing something like this as a law professor, which led to hunting rights activists Saxby Chambliss and John Cornyn holding up his senate confirmation for a time. It's a safe bet that Sunstein won't touch anything like the Swiss proposal with a ten-foot poll now that he's actually in government, but it would still be interesting to know his thoughts on it.
On a slightly related note, I have a short piece in the last print magazine about circumstances under which animals observe human national borders.
FABRICE COFFRINI/AFP/Getty Image
Though Iranian-Italian relations don't often make the headlines, trade between the two countries is estimated to be in the neighborhood of $9 billion. That makes Italy Iran's largest trading partner in the EU.
But perhaps the $9 billion figure should be revised upwards in light of some of the most recent news to come out of Rome: on Tuesday, March 2, Italian police arrested seven people -- five Italians and two Iranians -- on suspicion of engaging in illegal arms trafficking to the Islamic Republic. After making the arrests, police seized a variety of equipment, including rifle scopes, military scuba-diving jackets, flak jackets, mobile phones, and life vests.
While few details have been made publicly available, what has been released makes "Operation Sniper," the code name for the police investigation that ultimately led to the seven arrests, sound like something out of one of the Bourne movies.
According to Italian police, the dealers began their smuggling operation in 2007. After buying arms in Europe, the dealers would then launder the arms by transporting them to the U.K., Romania, and Switzerland before selling them to clients in Iran. Although Italian authorities haven't released any information regarding the identity of these clients, some have speculated that based on the nature of the equipment that was seized, the intended recipients were probably members of the Iranian secret service.
Though the smuggling operation was initially a success, it hit a snag in Romania when a customs official seized 200 gun sights that were illegally headed from Italy to Iran. Details remain sketchy, but this seizure appears to have tipped off police in other countries, as related arrests and seizures were soon made in Switzerland and Brtain. Thanks to the information gathered from these maneuvers, Italian police were able to successfully identify the smugglers in Italy and arrange a sting operation against them.
GIUSEPPE CACACE/AFP/Getty Images
For the past few months, a cynical observer might think, Washington has carried out a long piece of performance art detailing the many ways in which passing legislation is hard, even with the White House and Congress in one party's hands. There are holds, filibusters, floor motions, cloture, and sundry other rules. The Senate is a small-c conservative institution, delimited from making radical change in a thousand ways.
The biggest obstacle of all is the ticking clock. Every motion takes up floor time. There is only so much floor time. And, when it snows in Washington, there is less. Indeed, the Senate was briefly open for business today. But it won't be tomorrow or, probably, the next day, many thanks to Snowpocalypse 3. Senators need to be present to vote. They won't be, so the whole government apparatus will be shut down.
This got me to thinking: Do really inclement countries let their legislatures vote remotely?
The answer in the United States is no -- though it has been proposed before. The first country I thought of was Estonia, which has the most tech-savvy government on the planet and, I imagine, rather nasty winters. There, you can cast your national electoral ballot from the comfort of your living room sofa, over the Internet. (There are actually a number of countries and localities that allow this.) But, it seems, members of parliament need to be present to give the up or down on legislation.
I only found one government that allows remote legislative voting -- in, of all places, sunny Catalunya, Spain. In that region, which includes Barcelona, local representatives can request permission to send in their vote from home if they need to tend to a sick family member, for instance. No details on whether they also do it if hit with 22 inches of white stuff.
Sunny Spanish countryside by Flickr user laura padgett
Late last year, my colleague Blake Hounshell and I sat down with Anwar Ibrahim here in Washington, where he was attending a conference on inter-religious understanding. The Malaysian opposition leader (who is #32 one of our Top Global Thinkers of 2009) is today in a very different setting: the beginning of his trial for charges of sodomy that he says are politically motivated. Here are a few excerpts from that interview, including his thoughts on democracy, religion, and being an opposition figure.
FP: One criticism in the United States of the Muslim world is, people will say: the Muslim world is not addressing its own problems; The Muslim world is more likely to blame America for what is going on then to do soul searching about the state of discourse in Islam today. What is your response to that?
Anwar Ibrahim: I just answer, be equally responsible. You can't just erase a period of imperialism and colonialism. You have to deal, you can't erase, for example, the fault lines, the bad policies, the failed policies, the war in Iraq for example, and ambivalence you support dictators inside the top democracy. ...This night [in Malaysia], [there are] emails [circulating within] the national media, the government television network. They will start a 5 to 7 minute campaign: Anwar is in the United States, he is a lackey of the Americans, he is pro-Jew. Period. And they go on with impunity, [as they have done] for the last 11 years. Because they want to deflect from the issue of repression, endemic corruption, destruction of the institutions of governance.
There is a difference. You [the United States] have Abu Ghraib and it is exposed -- and the media went to town. The atrocities in the Muslim world, in our prisons, [and I am] not talking about my personal experience, [are] all knitted up.
What we need is credible voice in the Muslim world, independent. Some liberal Muslims become so American in their views, so Western. I don't think you should do that. Americans need to appreciate the fact that I am a Muslim, there don't need to be apologies for that. But at the same time we must have the courage to address the inherent weaknesses within Muslim societies.
FP: When was it that you first decided this debate between religion was something you wanted to be a part of?
AI: In Malaysia, [this] is so critical. [It's] a multi racial country, a religious country. [There is a] Muslim majority of 55 percent, then Hindus, Buddhists, and Christians of various domination. I grew up being involved in the Muslim youth work, even when I was a student, engaging in this. The Vatican supported the East Asian Christian Conference at the time and we started having these discussions. My initial work in the youth work when I was leading the Malaysia youth counsel which is an umbrella of all the Hindu youth and the Buddhist youth and the Christian youth. I benefited immensely ... we started engaging them. ... Then of course there was tolerance when we hosted a conference; they were mindful of the Hindus were strictly vegetarian or if the Christian organized, they were aware we did not eat pork or drink.
When I was I government the Muslim Christian dialogue was promoted, in fact I supported the program. There was a Muslim Christian center in Georgetown and we went to New Manila University. The majority of the Malaysians non-Muslims are not Christians but Confucianists, so we brought in Professor Tu Wei-ming one of the Chinese scholars of Confucianism from Harvard to come and tell us about Confucianism and we tell him about Islam. There is so much in common between Confucianism and Islam.
FP: How do you balance your life as a thinker and a politician?
AI: People do suggest that, but I quite disagree. Of course you simplify the arguments but the same arguments, the central thesis remains constant but the way you articulate it may differ. People say, Anwar you are opportunistic, how can you talk about Islam and the Quran here and then you talk about Shakespeare there and then quote Jefferson or Edmond Burke. I say it depends on the audience. [If] I go to a remote village, of course I talk about the Quran. In Kuala Lumpur ,and you quote T.S Eliot. If I quote the Quran all the time, to a group of lawyers, I am a mullah from somewhere.
[Some] think because I do court [Islamic votes] these days they think I am a Islamist. [But] you ask the question -- is it true, Anwar, that you are sound and consistent in your views and you are not actually a closet Islamist? I say, Why do you say that? [The] six years [I spent in] prison is not enough? And they say no, but you engage with the Islamists, and I said yes.
Deborah Solomon, the New York Times Magazine's Q&A writer, has an interview with John Yoo.
The Berkeley professor and law scholar worked in the Office of Legal Counsel during the George W. Bush administration and is the author of the infamous "torture memos" arguing that harsh interrogation, as long as it does not cause pain tantamount to organ failure, is legal.
It's worth a read in full -- he says Lincoln is the president who most overstepped his authority and that he has never met Bush -- but here's my favorite part:
I see various groups are protesting a decision by a California government lawyer to teach a course with you that starts on Jan. 12, claiming he is legitimizing your unethical behavior.
At Berkeley, protesting is an everyday activity. I am used to it. I remind myself of West Berlin — West Berlin surrounded by East Germany during the Cold War.
Are you saying the citizens of Berkeley are Communists, reminiscent of those on the dark side of the Iron Curtain?
There are probably more Communists in Berkeley than any other town in America, but I think of them more as lovers of Birkenstocks than Marx.
When, exactly, did you become a conservative?
I’ve been one since I was a kid. I was 9 when Jimmy Carter took office. I can remember him giving a speech in a funny sweater and asking people to turn down thermostats. And then there was the malaise speech. I thought they meant mayonnaise.
You were born in South Korea and grew up in and around Philadelphia, the son of two doctors. What sort of doctors?
What effect did that have on you?
I hope none.
Are they psychoanalysts?
I couldn’t tell you. I don’t actually know that much about their work. I’ve never really been interested.
A psychiatrist might say you are in denial.
I deny that I am in denial.
If you can’t beat ‘em, regulate ‘em -- that’s the Indian Supreme Court’s take on the country’s illegal sex trade.
The court’s advice came in response to an NGO’s public litigation regarding child trafficking in the country. As of 2007, UNICEF estimates 2.4 million Indians were HIV-positive (with the high estimate ranging up to 3.2 million). The sex trade is at the center of the epidemic: reportedly, a young prostitute can charge a customer just over $2, while an older woman will only receive about 65 cents – and that figure usually drops if the prostitute demands the use of a condom. And the youngest girls in the trade, forced into prostitution before 15, are at the greatest risk of contracting the virus – they work longer hours, serve more clients, and are more likely to work in multiple brothels.
A UNAIDS report issued a couple of weeks ago reports that efforts to control the spread of HIV has been effective, with HIV prevalence among female sex workers declining by more than half, from 10.3 percent to 4.9 percent, between 2003 and 2006. Still, as the court points out, there are an estimated 2 million female sex workers, and legalization would allow monitoring of the trade and further provision of medical aid.
As the judges asked, "When you say it is the world's oldest profession and you are not able to curb it by laws, why don't you legalise it?"
Photo: PRAKASH SINGH/AFP/Getty Images
It seems like Uganda is taking two steps forward and one step backward
this week in terms of securing human rights for its citizens. Amid
growing debate regarding the national Anti-Homosexuality Bill, the Ugandan parliament unanimously passed
a law which not only outlaws the practice of female genital
mutilation, but imposes a strict punishments of ten year to life-long
sentences for convicted perpetrators.
Not a single parliamentary member spoke against the bill, and Francis Epetait, Uganda's shadow health minister explained the reasoning:
"This practice has left so many women in misery. So we are saying no. We cannot allow women to be dehumanised."So as gender activists celebrate in Uganda, national rights advocates still cringe as the likelihood of the passage of the Anti-Homosexuality Bill looms nearer. The Ugandan Civil Society Coalition on Human Rights and Constitutional Law released a statement yesterday to mark International Human Rights day in which they call the pending bill an "unprecedented threat to Ugandan's human rights:
“Uganda today stands at a crossroads. We can either turn further towards an agenda of divisionism and discrimination, and pay the costs in terms of internal suppression of our own citizens coupled with international isolation and marginalization, or we can embrace diversity, human rights and constitutionalism.”
SHAUN CURRY/AFP/Getty Images
This weekend, Honduran citizens voted Porfirio Lobo president, months after a coup ousted Manuel Zelaya. Here, Foreign Policy contributor and former U.S. Assistant Secretary of State for the Western Hemisphere Otto J. Reich replies to criticism of his FP article on the coup.
How does one rebut so many errors and distortions as those in Christopher Sabatini and Daniel Altshuler's response ("Calling a Coup a Coup," from Nov. 2) to my Foreign Policy article on Honduras ("Honduras is an Opportunity," from Oct. 27). Let us deal with just some of them.
By my count, Sabatini and Altshuler (hereafter, "SA") repeat the term "coup" 11 times, an incantation designed to cast a spell over the reader. But no matter how many times the liberal duo recite the mantra to misidentify the events that removed Manuel Zelaya from office, it was not a coup. Since the entire letter is based on that false premise, its conclusions are equally false.
SA accuse me of "ideological revisionism," for saying the U.S. should recognize the transitional government that is based on Honduran law, while they insist on calling a constitutional removal of a law-breaking president by a unanimous vote of a nation's Supreme Court, a "coup." Curiously, SA dismiss the Supreme Court action by citing two obscure U.S. academics' papers which portend to rebut a U.S. Law Library of Congress report that supported the legality of Zelaya's ouster. Is that ideological on their part, or just plain confused?
The ousted president, Manuel Zelaya, had violated several articles of the Honduran Constitution (as documented in the aforementioned Supreme Court decision), and therefore according to Honduran law (not my opinion) he was no longer president of Honduras when he was deported (the deportation was not legal, but it occurred after the legal removal from office). Further evidence that Zelaya's removal was not a coup was the ratification of his removal by a nearly unanimous vote of the Honduran Congress. SA gloss over Zelaya's violations of the law and focus instead on his subsequent -- and inexcusable -- deportation.
SA claim that "Reich vigorously defended Micheletti's assumption of power as the victory of the rule of law and a stand against Latin American leftists." False. I not only did not defend (or condemn) Micheletti, I mention Micheletti only once in my article, in passing, acknowledging that he replaced Zelaya. This is only one example of the paucity of facts in SA's article. I am not sure whose article they were rebutting, but I don't think it was mine. Their allegations are directed at "conservatives," "Micheletti apologists," and others -- people I know did not write my FP article.
Attacking "conservatives" put SA in a bind. They charge that "U.S. conservatives have argued that Barack Obama's administration should recognize the Nov. 29 elections in Honduras as a way out of the political crisis." Actually, it is not only U.S. conservatives, but also the Obama administration that has come to that conclusion, as evidenced in the agreement brokered by Assistant Secretary of State for Western Hemisphere Affairs Thomas Shannon in late October. It was Zelaya who renounced the agreement just days after he had signed it. Shannon then said the U.S. would recognize the winner of the Nov. 29 elections as the legitimate head of the next Honduran government.
In their letter to FP, SA praise the U.S.-brokered accord as follows: "[Most] importantly, the prospective settlement sets the stage for internationally recognized elections that will transfer power to a new president and help the country move forward." I agree. And contrary to SA's implication, I support that accord and think it is the best way out of the current crisis. I would hope that Zelaya's retreat from it has not caused SA to reverse course.
Although most of their letter can be dismissed as confused and self-contradictory, Sabatini-Altshuler's ideological motivation in attacking "U.S. conservatives'" position on the Honduras electoral crisis (as embodied by me, I assume) is serious. In concluding, SA claim that the "conservative" posture on Honduras they have attacked in their letter "would have mirrored the United States' foreign-policy blunders in Central America in the 1970s and 1980s. During this period, the United States supported façade democracies -- deadly authoritarian regimes that held civilian elections to legitimize their rule -- to pursue questionable geopolitical aims. This position cheapened elections and weakened nascent democracies."
This not only reveals a clear leftist ideological direction by SA, but also a revisionism resulting in crass historical distortion. This is a contemptible and ignorant slap at Ronald Reagan, the president in "the 1980s," under whom unprecedented progress was made in hemispheric democracy. When Reagan took office in 1981, a majority of Latin Americans lived under military dictatorships. When the conservative Reagan left office eight years later, the situation had been reversed: An overwhelming majority of our neighboring countries had transitioned to democracy after long and brutal dictatorships, such as Argentina, Brazil, Peru, Guatemala, Uruguay, and Chile. Which of those governments were "façade regimes," as in SA's accusation? Which were U.S. policy blunders? In which of those countries did the U.S. weaken "nascent democracy"?
As someone who worked for Ronald Reagan for those eight years, I can attest that democratic progress was no accident. It was the result of a policy designed and implemented to bring freedom and democracy to our hemisphere. That two American liberals attempt to re-write history and thus demean the U.S. role in the advance of freedom in this region, imperfect as it was but one that came at a high cost in lives and treasure, is an obvious illustration of the moral bankruptcy of American liberalism today.
But SA are not satisfied with running down their country: Their despicable and rude anti-Reagan screed reaches another ridiculous nadir with the statement that those (1980s) U.S. policies were based on "the pursuit of questionable geopolitical aims." Really? What aims were those? The main geopolitical aim of Ronald Reagan, as I remember, was the defeat of communism. The policy succeeded. And with it came an unprecedented global spread of freedom, human rights and prosperity. By whose standards was this policy "questionable?" I do recall it was questionable to the Kremlin, many western Marxist "intellectuals," and most Third World socialist despots and guerrilla leaders. It was not questionable to the hundreds of millions of people of Eastern Europe or the Soviet Union whom it helped to liberate from oppression. We now know they supported Reagan. As did the other hundreds of millions people who benefitted from the end of the Cold War and from the ensuing prosperity resulting from the "peace dividend".
Why does U.S. Cold War policy appear to be a "blunder" to Sabatini-Altshuler? For the same reason they cannot see why the U.S. should support free elections in Honduras. Historical ignorance and political ideology blinds them.
Reuters reports that an Italian judge has delayed the resumption of Prime Minister Silvio Berlusconi's tax fraud trial until January, at least. Why? "Pressing state business" -- that is, presiding over a U.N. summit on hunger in Rome.
But Berlusconi has not managed to delay the other criminal case pending against him and is due in court later in November. The magnate/bon vivant/political leader allegedly paid a prominent British lawyer $600,000 to testify falsely on his behalf in a 1997 corruption case. (David Mills, who accepted the bribe, has already been convicted and is currently appealing his jail sentence.)
Today, Greg Craig, the White House's top legal advisor, stepped down from the post he once described as his dream job. The speculation over the much-respected lawyer's resignation has been swirling for months, reaching a fever pitch back in October, when the New York Times published a story on the controversy in the White House office of legal counsel.
Craig's resignation comes on the day the administration announced it will try Khalid Sheikh Mohammed -- among the tougher Guantanamo cases from a prosecutorial stance, given that he was tortured and that the government hopes to seek the death penalty -- in federal court a few blocks from Ground Zero.
The most obvious reason (Craig gave none specifically in his resignation note) is that he was the person charged with closing the facility at Guantanamo Bay, determining how to relocate and try all of the detainees. When Obama came into office, he promised it would be done by Jan. 22, 2010. It will not, likely costing Craig his job. The October Times story explained:
When an administration stumbles, whispers begin and fingers point in search of someone to blame. At a certain point, assumptions can become self-fulfilling, and an official in the cross hairs finds it harder to do the job. In Mr. Craig’s case, friends said he was unfairly being made a scapegoat for decisions supported across the administration.
It is, of course, not a good thing that the administration has stumbled in its goal of closing Guantanamo. But it is worth considering that it isn't really Craig's fault at all.
Gitmo, ultimately, isn't closed because Craig did not take any of the easy ways out. He could have moved all of the prisoners to Bagram or another overseas military facility. He could have tried all of them in military commissions, the legal process jerry-rigged by the Bush administration. Because, in part, of Craig's insistence on taking each case separately and at least trying to conform to U.S. law, Guantanamo remains open.
It is a much lesser sin than what came before it. Craig is stepping down less due to his own failures than due to the extralegal maneuvering of the Bush administration. Lawyers like John Yoo and David Addington made a mockery of due process back then, and their sins are now being revisited upon members of the Obama administration. If anyone should have to answer for Greg Craig's job, it is John Yoo.
"Some people get the giggles after using cannabis -- you may laugh at the most random things" cautions "FRANK," the UK's anti-drug website. Despite declining drug use in the country, in January the British government changed marijuana's classification from a "Class C" to a "Class B" drug; possession now carries a maximum penalty of five years imprisonment, while dealing can get you 14 years in jail.
Professor David Nutt, formerly a member of the UK's independent Advisory Council on the Misuse of Drugs, was fired for publicly disputing the decision; five other members of the 31-person Council have since resigned in protest of the politically-motivated firing. In a lecture (later published), Nutt argued that the use of illicit drugs like marijuana and ecstasy poses less severe health risks than the use of alcohol or tobacco. Nutt has also equated the dangers of ecstasy use and the risks of horseback riding.
Nutt's firing and the subsequent resignations have caused quite a political row, with politicians and scientists making pointed attacks on home secretary Alan Johnson, who gave Nutt the axe. "Your leader on drugs policy is long on righteous indignation but short on logic" wrote Johnson in a defensive letter published in The Guardian.
Nutt fired back in a column published in The Telegraph, writing, "Some politicians find it easier to ignore the evidence, and pander to public prejudice instead."
Photo: SCOTT BARBOUR/Getty Images
Italy's highest court may be able to strip Prime Minister Silvio Berlusconi's Teflon coating.
In July 2008, Italian lawmakers "freed" Berlusconi with an immunity law that freezes criminal cases against the prime minister, president and heads of both chambers of parliament while they are in office. (See last week's edition of The List for more.) Now prosecutors are saying this law is unconstitutional, as it goes against the provision that all citizens are equal before the law.
The Constitutional Court could rule by the end of the week; however the Italian media says the decision could be delayed because the 15-judge court is unable to reach a consensus.
Berlusconi would most likely have three cases re-opened against him. The most devastating of these cases accuses Berlusconi of paying British lawyer David Mills $600,000 in 1997 to give false testimony in Berlusconi's corruption trials. Mills was sentenced to 4 1/2 years for taking the bribe in February, however he will likely never see jail because of Italy's appeals system.
Other cases that will likely be re-opened include a tax fraud and false accounting case and a case in which he allegedly tried to corrupt senators.
ANDREAS SOLARO/AFP/Getty Images
The city council of Nairobi passed a series of by-laws yesterday outlining new illegal activities for the streets of Kenya's capital. Newly outlawed activities include blowing one's nose in public without using a hankercheif and spitting into trash cans. Another of the laws criminalizes loud noise.
This particular ordinance may have the biggest impact on the economy of Nairobi, in which street hawkers, cab drivers and store owners rely on verbally cajoling customers into their services. One resident argued the city is just trying to make money, either from imposed fines or bribes, and directly ignoring the needs of its citizens:
"We get our daily bread here,We are not making noise. The council must know that we are self-employed."
The city maintains that the purpose of the news laws is to make the city more habitable and reduce general nuisance.
Yesterday, award-winning director Roman Polanski was arrested in Zurich for a long-outstanding U.S. warrant. In 1977, Polanski was arrested for the statutory rape of a 13-year-old girl. He pleaded guilty, and fled the county in 1978 to avoid going to jail. He eventually became a dual citizen of France (which does not extradite) and Poland.
Today, Polish Foreign Minister Radoslaw Sikorski and French Foreign Minister Bernard Kouchner called on U.S. Secretary of State Hillary Clinton to stop the extradition. Kouchner called the arrest "a bit sinister." In these countries, Polanski is widely regarded as an exceptional filmmaker and a victim of the overzealous American justice system. (HBO made a documentary about this dichotomy, Roman Polanski: Wanted and Desired.)
But Sikorski's defense of Polanski comes at an awkward time: Poland is in the process of implementing much-harsher punishments for people who commit sex crimes. Last week, all but three of the 460 members of Poland's lower chamber of parliament voted to punish certain sex offenders with chemical castration. People convicted of raping a person under 15 (the crime Polanski pled guilty to) or a close relative would be given drugs to diminish their libido, under the new law. On top of chemical castration, there are increased penalties for incest and pedophilia. Trying to justify pedophilia would also be criminalized.
Regardless, it seems Polanski might end up serving his time in the United States, ending his 31 years on the lam. While abroad, Polanski has made a number of films -- including Tess, which was dedicated to his wife Sharon Tate (who was murdered by the Manson Family) and the Oscar-winning The Pianist, set during the Holocaust. After being forced into the Kraków Ghetto during World War II, Polanski escaped the concentration camps; his mother did not and was killed in Auschwitz. He also made arguably the creepiest movie of all time, The Ninth Gate, starring Johnny Depp as a used book salesman who tries to track down the devil.
Roman Polanksi, the famed director of Chinatown and The Pianist, who has not set foot in the United States for more than three decades, is now facing extradition proceedings in Switzerland -- at the request of the Los Angeles district attorney's office.
Upon touching down at the Zurich airport on Saturday, after departing his native France, Polanksi was detained by authorities. Unlike France, Switzerland has an extradition agreement with the United States that applies to cases like that of Polanski, who is wanted in connection with a 32-year-old sex case.
In 1977, Mr Polanski admitted to having sex with a 13-year-old in Los Angeles. The woman has since identified herself and publicly offered her personal forgiveness. But that has not changed the course of legal proceedings.
As Sandi Gibbons, a spokeswoman for the Los Angeles County district attorney’s office, told the New York Times:
"Any time word is received that Mr. Polanski is planning to be in a country that has an extradition treaty with the U.S., we go through diplomatic channels with the arrest warrant."
Polanski's case is perhaps not unique in the world of extradition law, but it is provocative. The notion of the Los Angeles DA's office for 32 years tracking the director's busy European travel schedule, waiting for an opportunity, whilst he chose to appear at various film festivals via video-conference rather than in person, is fascinating. But beyond the celebrity factor, it's hard to pin down exactly what seems so incongruous.
Is it simply that in a post-9/11 world we're now accustomed to thinking of "extradition" in connection with national security interests, and clear-and-present danger?
A new Islamic law in Indonesia's devoutly Muslim Aceh province takes a strict interpretation of Sharia law including a provision to stone adulters to death. The "Islamic Crime Bill," passed by the regional parliament on September 15, 2009, authorized the following punishments for adultery and homosexuality:
“Any person who deliberately commits adultery is threatened with 100 cane lashes for the unmarried and stoning to death for those who are married.”
“Any person deliberately performing homosexuality or lesbianism is threatened with up to 100 cane lashes and a maximum fine of 1,000 grams of fine gold, or imprisonment of up to 100 months.”
Additionally, the law outlines the punishment for rape is a minimum of 100 cane lashes and a maximum of 300 cane lashes or imprisonment of at least 100 months and up to 200 cane lashes or a maximum imprisonment of 200 months for pedophiles.
The regional parliament passed this law in order to target "behavior considered morally unacceptable."
Jewel Samad/AFP/Getty Images
German Judge Albert Bartz has taken issue with laws that ban drivers from talking on handsets while driving but do not address many other potentially more distracting activities, including sexual activity.
"The police have no legal basis for taking action against a driver who is, for example, letting their left hand dangle out of the open car window while they use their right hand to work on a laptop that's sitting on the passenger's seat and steer the car with their thighs," Bartz said. "In my opinion, the current legislation is outdated."
The judge considered the law while handling the case of a man who appealed his fine for talking while driving. Bartz insists however that he does not have personal motivation for his legal position.
Bartz emphasized that he has never been caught using his mobile phone in the car and that he also avoids other risky activities while driving. As he told the mass circulation daily Bild: "Sex at the steering wheel is strictly off-limits for me."
Bartz forwarded the statute on to Germany's highest court, the Constitutional Court in Karlsruhe, for further review.
Peter Macdiarmid/Getty Images
For decades, all that Japan knew of jury trials came from foreign legal dramas. Now, for the first time since 1943, Japan is watching a real jury decide the fate of a criminal, as six "lay judges" join three professional judges for four days of deliberations over the fatal stabbing of a 66 year-old South Korean woman by her 72 year-old neighbor.
Since the end of trial by jury during World War II, Japan's trials have been carried out under professional judges, which led to accusations of too much secrecy. The 99 percent conviction rate that currently accompanies these trials has increased concern that many innocent people are being convicted, and the reintroduction of juries, which was passed five years ago, is designed to bring the public into the judicial process (though only for serious crimes such as murder). However, the public has been skeptical of the new system, especially the hassle involved in taking time off to serve. Furthermore, many Japanese do not enjoy the open forum of deliberations; a New York Times article from 2007 reported that even a mock trial "had left [participants] stressed and overwhelmed." Overall, polls show that almost 80% of the public does not want to serve, and there have been intermittent protests (shown above) since the law's passage.
But while the hassle of serving and the confusion at a new system are at the top of the public's complains, the legal community is more concerned about something else: sentencing. Many critics in Japan have expressed unease at the power given to jurors to pass sentence on criminals, including the death penalty (though at least one professional judge must agree with the lay judges' recommended sentence). Since the accused has already pled guilty in this case, the jury will likely be focusing on the appropriate penalty -- as will the nation.
In Britain, the battle over assisted suicide and right-to-die laws has been heating up over the past few weeks.
The country has no intention of making assisted suicide legal. But, in the past decade, hundreds of Britons have traveled to Switzerland, where clinics offer doctor-assisted suicides for the terminally ill. And thus far, the country has been reticent to prosecute and punish their family members for going with them or aiding them in the process, although assisting a suicide is a felony in Britain.
The gray area led to numerous calls -- from doctors, citizens, and members of Parliament -- for a clarification of the law. This month, a famous couple chose to end their lives in Switzerland, and a woman with multiple sclerosis appealed to Parliament as well.
And today, the House of Lords instructed the director of public prosecutions to do just that.
A few weeks ago, I wrote a post arguing for the clarification of the law on class grounds. (See a rebuttal to my point from Felix Salmon here. Though I disagree with Felix -- the terminally ill are probably not capable of getting loans worth thousands of dollars and the process is expensive.) Assisted suicide in a foreign country is an expensive thing for Britons -- today, one doctor said he gave a third of the cost, 1500 pounds, to a terminally ill man who could not afford the trip to Switzerland without it.
And, today, the general practitioner called on Britain to prosecute him for doing so. The Guardian reported:
A former GP said today he hoped to be prosecuted for helping a terminally ill man to have an assisted suicide. Dr Michael Irwin, 78, said he wanted to highlight the "hypocrisy" of a system where the wealthy could pay to travel to Switzerland's Dignitas clinic for euthanasia but the poor could not. He will be questioned by police today after writing a cheque...
I don't want to make a point about whether assisted suicide itself should be legal. But this Irwin's case does make me realize I was imagining families -- not sponsors -- when I thought of those who might benefit from a clarification of the laws.
On Friday, Britons Lady Joan and Sir Edward Downes, a prominent orchestral conductor, committed suicide with barbituates provided by the Dignitas clinic in Switzerland. According to British newspapers, Joan, 74, was suffering from terminal pancreatic cancer and had but weeks to live; Edward, 85, was going blind and deaf and did not want to live without her. The couple had been together for 54 years.
The story has reignited the debate over assisted suicide in Britain -- where every family that makes that horrific trip to Zurich commits a political act.
Indeed, in a brief interview with the Evening Standard, the Downes' son said, "It is a very civilized way to end your life, and I don’t understand why the legal position in this country doesn’t allow it." He also mentioned that he and his sister rang the police themselves to inform them of the deaths.
British police are questioning them, as assisting a suicide is illegal in Britain. But the justice system is unlikely to do anything. At least 117 Britons have committed suicide in Switzerland, where it has been legal to help terminally ill people end their life since 1998. No members of their families have ever been prosecuted. Britain, in essence, turns a blind eye.
I don't have much to say about the validity of assisted suicide laws. But one thing about the story struck me.
It's an expensive way to die -- it costs 4,000 Euros for Dignitas' services, plus the cost of bringing out one's family. And, because it is so expensive, only the wealthy seem to choose to do it. The titled Downeses. Businesspeople. University professors. Doctors.
One can imagine other terminally ill patients, in extraordinary pain and with no quality of life, wishing to end their life in a manner of their choosing, but being unable to do so because of the cost.
Britain's laws, de facto, make it possible for the rich to die via assisted suicide, but impossible for the poor to do so.
It reminds me of one of the common arguments over abortion laws. Women in countries like Portugal (which has restrictive abortion laws) or states like South Dakota (where virtually no clinics provide the service) often need to travel far distances to obtain the service. Which means the rich are able, and the poor aren't.
And access to such services should be determined by law, not class.
Reporting on the launch of the new congressional "sovereignty caucus," a group of GOP senators opposed to international law and institutions, David Weigel writes about how the confirmation battle over Harold Koh could set the stage for a confrontation over the long-debated Law of the Sea treaty and a few others:
While Republicans and conservative activists were disappointed by the confirmation of Koh, the long delay leading up to the vote and its relative closeness — 65 to 31 to end debate on the nomination and 62-35 to confirm him — have boosted their hopes of successfully battling treaties that they characterize as threats to American rights and national interests. Treaties need the votes of 67 senators to be ratified, and can gum up the business of the Senate for weeks if they become flash points for controversy. The Convention on the Rights of the Child, for example, has convinced Rep. Pete Hoekstra (R-Mich.) — a member of the House Sovereignty Caucus — to introduce a Constitutional amendment protecting the right of American parents to discipline their children and send them to religious schools.
Those hopes are likely to be tested at least twice this year. According to staffers for the Senate Foreign Relations Committee, the United Nations Convention on the Law of the Sea, or the Law of the Sea Treaty — a 1982 treaty that governs the right of countries to use the oceans — could be reintroduced next month. And President Obama is in Russia this week in part to move forward the Comprehensive Nuclear-Test-Ban Treaty, the 1996 agreement on weapons testing that was rejected by the Senate in 1999, when the upper chamber contained 55 Republicans and 45 Democrats. Of the 16 treaties that the State Department included on its priority list in a May 11 letter to the committee, both sides agree that these two will be the first to face full votes. And both sides agree that the Koh vote provided a good idea of the support these treaties might command from a very skeptical Senate Republican conference.
“The vote against Harold Koh is probably the minimum vote against both of those treaties,” said John Bolton, who served as U.S. ambassador to the United Nations under George W. Bush, and who has been a forceful critic of both treaties. “I think that a lot of Republicans, whether they agreed or disagreed with Koh’s views, basically agreed that president had the right to appoint his own team. Whether they would also support these treaties, given their concerns about national sovereignty, is another question.”
Commander James Kraska of the Naval War College made the case for Law of the Sea on FP back in February, arguing that by holding up ratification, congress is only aiding China's efforts to unilaterally redefine international law. Law of the Sea is just one of those issues doomed by the fact that not that many people care about it, but those who, care about it a lot.
An Iraqi police woman shows off her skills during a parade to mark the withdrawal of US troops from Iraqi cities and towns across the nation on June 30, 2009, in the city of Karbala, 110 kms south of the capital Baghdad. Iraqi forces took control of towns and cities across the country to replace departing US forces, a milestone in the country's recovery six years after the US-led invasion.
AFP PHOTO / MOHAMMED SAWAF
Good news from last night: Dave Weigel of the Washington Independent reports that Democrats are moving for cloture on the nomination of Harold Koh, the dean of Yale Law School and a respected scholar, to become legal advisor to the State Department.
Back in April, FP featured an Argument piece by law professor Ronald Slye. It's an excellent primer on transnational law -- Koh's specialty, and the sticking point for Republicans opposing his nomination -- and a good look at the new State advisor.
All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law's traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law -- that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws....
Ultimately, legal transnationalism, particularly as articulated by Koh, falls squarely within the mainstream. Koh himself is a moderate, having worked for both the Republican Reagan and Democratic Clinton administrations. Everyone from Laurence Tribe of Harvard Law School to Dean Kenneth Starr at Pepperdine University School of Law, as well as half the country's law school deans, supports him. This is not surprising. We are, of course, talking about the legal office that most directly engages with issues of international law. Why would we not want one of the foremost international law experts in the country in that position?
Annie wrote yesterday about how Bermuda and Palau's economic dependency on the United States might have something to do with their decision to accept Uighur prisoners from Guantanamo Bay. But Bermuda also has a legal dependency on Britian, and London was surprised, to say the list, by the news, and they're a bit ticked off at Washington as well:
Under a 1968 understanding known as the general entrustment, Bermuda has the right to conduct external relations "on behalf of" Britain, on condition that London is consulted before agreements with other states are entered. At issue is whether the prison transfer represented such a formal agreement, or simply a local immigration matter. The Foreign Office insisted the matter was "a security issue for which the Bermuda government does not have delegated responsibility."
British officials said there would now be talks with Bermuda on the interpretation of the general entrustment. But by this evening they were playing down a suggestion made earlier in the day that the understanding would be suspended. Meanwhile, a Foreign Office official said Britain would help Bermuda carry out a thorough security assessment of the four Chinese Muslim separatists.
Taken by surprise by news of the Uighurs arrival, Britain's foreign secretary, David Miliband, is understood to have had an uneasy telephone conversation with the US secretary of state, Hillary Clinton, about why London was not told. Clinton reportedly said the US had assumed that Bermuda had agreed the move with Britain before agreeing to host the Uighurs.
Just to connect the memes, the question of whether Bermuda's sovereignty is recognized in U.S. law was one taken up by none other than Supreme Court nominee Sonia Sotomayor, who argued in a 2000 dissent that Bermudans should be considered citizens of a foreign state, despite the fact that the State Department does not recognize the island as a sovereign nation.
No exactly relevant to this question, but interesting.
It isn't just Congress that's stalling Barack Obama's hopes for closing the U.S. detention center at Guantanamo Bay.
Ordinary Americans favor keeping Gitmo open by a two-to-one margin, according to a new USA Today/Gallup survey released today. The survey, conducted by phone among 1,015 adults, also suggests that a sizeable number think Gitmo's helped make the country safer:
By 40%-18%, [respondents] said the prison had strengthened national security rather than weakened it.
Those who want the prison to remain open feel more strongly on the subject tha[n] those who want to close it. A 54% majority of those polled say the prison shouldn't be closed, and that they'll be upset if the administration moves forward to close it."
Adulterers might want to avoid the Emirates city in the future:
A British couple have been jailed in Dubai for two months for committing adultery.
Sally Antia, 44, was arrested with Mark Hawkins, 43, a construction manager from Manchester, as they left the five-star Radisson Blu Hotel on May 2.
They were today sentenced to two months in jail, to be followed by deportation. They will be released in four weeks' time, after the judge took into account the one month they have already spent in custody[...]
It is understood that Mrs Antia’s husband, Vincent, 48, also believed to be British, had informed police in Dubai of his wife's relationship with Mr Hawkins. Divorce proceedings are under way between the couple.
This is not the first adultery arrest to be making news in Britain either: another woman, Marnie Pearce, is still fighting deportation and custody battles after spending three months in jail earlier this year. Perhaps a French beach in the future?
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