U.S. laws against ICC cooperation

(Part 2 of a 2-part series; Part 1 is here)

Notwithstanding the rapprochement between the United States and the International Criminal Court set out in yesterday's post, domestic legislation dating from the Bush Administration prohibits most forms of U.S. cooperation with the Court absent specific waivers or other contingencies.

The legislation in question is the remnants of the American Service-Members' Protection Act of 2002 (ASPA). The ASPA—enacted a month after the Rome Statute of the ICC entered into force—is a product of the initial hostility of the Bush Administration toward the Court, as symbolized by the May 6, 2002, retraction of the United States’ signature on the Rome Treaty. In its original incarnations, the ASPA contained a number of provisions aimed at limiting both U.S. involvement with the Court and the exposure of U.S. or allied citizens to prosecution before the Court. In particular, much of the original ASPA was geared toward intimidating potential ICC states parties by threatening to withhold various forms of international aid unless they entered into an Article 98 agreement not to transfer U.S. citizens to the Court. For a list of extant Article 98 treaties, see here.

The Bush Administration’s second term witnessed a moderation in attitude toward the Court. In keeping with this evolution, the ASPA’s punitive provisions began to be significantly dismantled, by either congressional repeal or non-renewal, starting in 2006.
Although the ASPA has largely been declawed, other aspects of the legislation remain in full force. Most importantly for the question of state cooperation, the ASPA continues to prohibit many forms of cooperation with the Court by U.S. courts, state or local government entities, and in some cases federal agencies and personnel (22 U.S.C. §§ 7423-7425). Forms of prohibited cooperation include:

• transmitting letters rogatory,
• aiding in the investigation or transfer of any U.S. citizen or permanent resident to the Court,
• using appropriated funds to assist the Court, and
• assisting in the extradition of any person to the Court (§§ 7423(b)-(f)).

In addition:

• treaties of mutual assistance are to be interpreted to comply with the ASPA (§ 7423(g)),
• no agent of the ICC may conduct any investigative activity in the United States (§ 7423(h)), and
• no U.S. court or state or local governmental entity may respond to requests for cooperation from the Court (§ 7423(b)).

Even information-sharing is prohibited. The President must ensure that appropriate procedures are in place to prevent the direct or indirect transfer of not only classified national security information, but also any law enforcement information to the Court or to a party to the ICC Statute (§ 7425). In addition, the legislation bars U.S. government entities from providing any support to the Court (§ 7423(e)). “Support” is broadly defined in the legislation as

assistance of any kind, including financial support, transfer of property or other material support, services, intelligence sharing, law enforcement cooperation, the training or detail of personnel, and the arrest or detention of individuals (§ 7432(12)).

The result of these provisions is that the Court is deprived not only of U.S. support and assistance, but also of U.S. training and expertise. Under certain circumstances, the President is entitled to waive the provisions barring cooperation and the transfer of information to the Court (§ 7422(c)).

Notwithstanding all these particular limitations, the statute also provides that the United States is not prohibited from participating in international efforts to bring to justice certain foreign nationals (including Osama bin Laden, Saddam Hussein, Slobodan Milošević, and members of al Qaeda) and

other foreign nationals accused of genocide, war crimes or crimes against humanity,

thanks to an amendment proposed by Senator Christopher Dodd (D-CT) (§ 7433) (right). It is unclear to what extent the Dodd Amendment trumps other more restrictive elements of this legislation.

Given that the coercive aspects of the ASPA are no longer in force, repealing or scaling back the anti-cooperation aspects of the ASPA should be a high priority for the Obama Administration.
Short of total repeal of the ASPA, Congress could be encouraged to make surgical amendments to the legislative scheme to curtail its over-broad elements. Some suggestions:

1. The most effectual fix would be the repeal of § 7423 of the ASPA, which prohibits a number of forms of cooperation and support. This would enable the United States to choose from a range of ways to cooperate with the Court—entirely at its discretion and when it is in its interests to do so.
2. Congress could also tinker with specific parts of § 7423. In particular, the limitations on cooperating with ICC investigations or transferring suspects to the Court could be removed in the case of non-U.S. nationals (so-called covered allied persons in § 7432(3)) and—more controversially—in the cases of individuals who are not members of the U.S. armed forces or elected/appointed government officials (i.e., “other persons employed by or working on behalf of the United States Government” (§7432 (4)).
3. “Support” could be more narrowly defined to exclude the provision of in-kind assistance, such as training, intelligence or collaboration in law enforcement (§7432(12)).
4. Congress could also permit the ICC to conduct investigations within the United States (§ 7423(h)).
5. Similarly, Congress at a minimum could redraft § 7425 to allow for the sharing of law enforcement information for the purpose of facilitating the investigation of ICC crimes, the apprehension of fugitives, and the prosecution of defendants. The ban on the sharing of classified information could remain in place subject to the waiver provisions.
6. Finally, the waiver provisions in § 7422(c) could be liberalized and delinked from the requirement that there also be a waiver in the peacekeeping context.

A risk inherent to seeking legislative reform is that it may result in the return of ASPA’s more restrictive provisions, or a weakening of the modus vivendi provided by the Dodd Amendment. Accordingly, so the timing of any such effort should be carefully considered to ensure Congress’s receptivity to cooperating with the Court.

If the United States is to best position itself to use all international tools available to it to advance our interests in responding effectively to the commission of international crimes, ASPA should be significantly scaled back so that the United States can work with the Court to both promote the United States’ foreign policy agenda and support the mission of the Court.

Prizing human rights

An institution established in memory of a Nuremberg prosecutor is seeking prize nominees.
Institution:
The Thomas J. Dodd Research Center, dedicated in 1995 at the University of Connecticut. The Center's namesake is Thomas J. Dodd, who began his career in the U.S. Department of Justice and went on to serve as a senior prosecutor at Nuremberg (right), cross-examining defendants in the Trial of the Major War Criminals and serving too in subsequent Nuremberg proceedings. (photo credit) Dodd, born in 1907, was a Democratic U.S. Senator from Connecticut from 1959 until a few months before his death in 1971; his children include the retiring senior Senator from Connecticut, who published his father's Letters from Nuremberg (2007), as well as a former U.S. Ambassador.
Prize:
The Thomas J. Dodd Prize in International Justice and Human Rights, awarded biennially by the University of Connecticut "to an individual or group who has made a significant effort to advance the cause of international justice and global human rights." Previous winners (here and here): 2003, Bertie Ahern and Tony Blair, then Prime Ministers of Ireland and Britain, respectively; 2005, Louise Arbour (left), then U.N. High Commissioner for Human Rights, and former South African Constitutional Court Justice Richard J. Goldstone, like Arbour a onetime Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda; 2007, the Center for Justice & Accountability, of which IntLawGrrls guest/alumna Pamela Merchant serves as Executive Director, and Mental Disability Rights International, last month renamed Disability Rights International; and 2009, the Committee to Protect Journalists.
To nominate a worthy individual or group for this monetary prize (no self-nominations accepted), complete and submit the form available here. Deadline is December 31, 2010.

"Human rights v. American national security"

Can't let last week's presidential debate recede into dim memory without taking note of an interesting colloquy on the role of human rights in today's political discourse.
Eventually enveloping 5 of the contenders for the Democratic nomination, the discussion began when the moderator, Wolf Blitzer, questioned the call of Gov. Bill Richardson (New Mexico) (left) to cut off military aid to Pakistan unless its President, Gen. Pervez Musharraf, moves "to restore the constitution, take off his military uniform, end the national state of emergency and have free and fair elections." Here's the response:

RICHARDSON: ... [W]hat happened with our Pakistan policy, we got our principles wrong. ... [W]e said to Musharraf: 'You know, Musharraf, security is more important than human rights.' If I'm president, it's the other way around -- democracy and human rights. ...
....
BLITZER: What you're saying, Governor, is that human rights, at times, are more important than American national security?
RICHARDSON: Yes, because I believe we need to find ways to say to the world that, you know, it's not just about what Halliburton wants in Iraq. It's also about our values of freedom, equality. Our strength is not just military and economic. ... Our strength as a nation is our values: equality ... freedom, democracy ... human rights.

Asked "to weigh in," former Sen. John Edwards (North Carolina) dodged the human-rights-versus-national-security dichotomy posited, and so in turning to Sen. Barack Obama (Illinois) (right), the moderator homed in on that question:

BLITZER: ... [I]s human rights more important than American national security?
OBAMA: The concepts are not contradictory, Wolf.
BLITZER: Because occasionally, they could clash.
OBAMA: They are complementary. And I think Pakistan is a great example. Look, we paid $10 billion over the last seven years and we had two goals: deal with terrorism and restore democracy. And we've gotten neither. ... Pakistan's democracy would strengthen our battle against extremists.
The more we see repression, the more there are no outlets for how people can express themselves and their aspirations, the worse off we're going to be, and the more anti-American sentiment there's going to be in the Middle East. We keep on making this mistake. ... And that's going to make us less safe.

Then it was the turn of Sen. Christopher Dodd (Massachusetts) (left):

BLITZER: What is more important, human rights or national security?
DODD: Obviously, national security, keeping the country safe. When you take the oath of office on January 20, you promise to do two things, and that is to protect and defend the Constitution of the United States and protect our country against enemies both foreign and domestic. The security of the country is number one, obviously.

Finally, the moderator turned from Dodd to Sen. Hillary Clinton (New York) (left):

BLITZER: You say national security is more important than human rights. Senator Clinton, what do you say?
CLINTON: I agree with that completely. The first obligation of the president of the United States is to protect and defend the United States of America. That doesn't mean that it is to the exclusion of other interests.
And there's absolutely a connection between a democratic regime and heightened security for the United States. That's what's so tragic about this situation. After 9/11, President Bush had a chance to chart a different course, both in Pakistan and in Afghanistan, and could have been very clear about what our expectations were.

A few comments about this colloquy.
1st, there's the matter of the President's oath, which both Dodd and Clinton misremembered. See below.
2d, there's cause to be disturbed in the degree to which some contenders acceded to the moderator's insistence that "human rights" and "American national security" are at odds with each other, that they "clash" in a manner that demands abstract prioritization of one over the other. Seemed clear to him, at least, that "American national security," standing alone, is the lone right answer. Little need, then, to consider precise context, let alone the security of other states, let alone the security of humanity as a whole. To be commended are those who said otherwise -- who resisted playing the moderator's zero-sum game and instead suggested that in the reinforcement of human rights may be found national security and that, conversely, national security ought to encompass human rights.
Only by acknowledging the complexity of the contemporary world can America's leaders hope truly to improve it.

* on U.S. officials' oaths

* A point of correction: Contrary to the above description advanced by Sen. Dodd, to which Sen. Clinton then alluded, the U.S. President's oath is only to the Constitution:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Appears they got confused with the oath of the U.S. Senate, the legislative chamber in which both serve:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Not just water under the bridge

Concerns about the nomination of Michael B. Mukasey were posted here the very same day that President George W. Bush tappped him to become the next Attorney General of the United States. At that time it seemed the concerns would fall on deaf ears; reporters predicted little opposition to a man who clearly possesses the credentials for the job. But that's not what happened.
After sailing through the 1st day of Senate Judiciary Committee hearings, in part because he disavowed the so-called "torture memo" of August 1, 2002 (as the Justice Department did years ago; see my article Abu Ghraib), on Day 2 Mukasey foundered, refusing to give a straight answer to a straightforward question. At issue was "waterboarding" -- pretending to drown an interrogee, a tactic that, as we've posted, the United States is said to have deployed against Khalid Sheikh Mohammed and certain other post-9/11 detainees. (The image at left, which reflects concerns about the recent proliferation of depictions of violence, is the one we've used consistently to "illustrate" this topic.)
The question: Is waterboarding torture?
He "remained mum" on this point, and his answer has not changed in the 2 weeks since the hearing. Yesterday, according to the New York Times, Mukasey "said that waterboarding and other harsh interrogation techniques 'seem over the line or, on a personal basis, repugnant to me; and promised to review the legality of such methods if confirmed." But as to "whether waterboarding, which simulates drowning, was illegal torture," he "could not say."
That position prompted Senators Christopher Dodd (D-Conn.) and Barack Obama (D-Ill.) to oppose Mukasey's nomination. Other presidential candidates then followed suit, and with good reason.
There ought to be no doubt that this practice is illegal. It's an assault and battery that has been known at times to result in death. It's cruel, inhuman, and degrading treatment. The United States prosecuted enemies as war criminals for it in prior conflicts. (See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Columbia Journal of Transnational Law 468 (2007)). And when it's done by state actors in a (misguided) effort to get information, waterboarding fits this definition:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

That, according Article 1 of the international convention that the United States ratified more than a decade ago, is torture. Anyone who can't find the words to say so shouldn't be seeking the job of the United States' top law enforcement officer.

Gitmo on the Demo campaign trail

Democratic presidential candidates seem even more united than Republicans on the issue of Guantánamo/"Guantánamo"; that is, not only on questions of closure of the detention camp that bears the name, but also on post-September 11 practices of coercive interrogation. As detailed yesterday, nearly all GOP candidates favor the camp and/or the harsh methods. In stark contrast are the Democrats: nearly all have advocated closing the camp, and none has supported coercive interrogation. Here's a sampling of Demos' comments this campaign year (and in the 1st example, well before):

U.S. Sen. Joseph Biden of Delaware, 2005 TV appearance:

This has become the greatest propaganda tool that exists for recruiting of terrorists around the world. And it is unnecessary to be in that position. ... I think we should end up shutting it down, moving those prisoners. ... Those that we have reason to keep, keep. And those we don't, let go.

U.S. Sen. Hillary Clinton of New York, Senate committee hearing:

Rather than keeping us more secure, keeping Guantanamo open is harming our national interests. It compromises our long term military and strategic interests, and it impairs our standing overseas. I have certainly concluded that we should address any security issues on what to do with the remaining detainees, and then close it once and for all.

U.S. Sen. Christopher Dodd of Connecticut:

Dodd has sponsored the Restoring the Constitution Act 0f 2007, a bill that would not close Guantánamo, but would allow detainees to petition federal courts for writs of habeas corpus, and also would address some due process concerns related to the military commissions set to try some Gitmo detainees.

Former U.S. Sen. John Edwards of North Carolina, speech to the California Democratic Party Convention, San Diego:

On my first day in office, you have my word that Guantanamo will be closed.

Former U.S. Sen. Mike Gravel of Alaska, radio appearance:

I will withdraw U.S. troops from Iraq within 60 days and raze Abu Ghraib prison and Guantanamo. We must tell the world that the United States does not stand for
torture. It is unacceptable human behavior.

U.S. Rep. Dennis Kucinich of Ohio, news interview:

You could close Guantanamo; that’s a good move — but until the United States ends the occupation (of Iraq), we will still have this war.

U.S. Sen. Barack Obama of Illinois, speech in Kansas City:

He also called for the closing of Guantanamo -- the American military base in Cuba where putative al-Qaida terrorists are imprisoned: 'Why don't we say we don't do torture, we don't do rendition, that's not who we are as a people.'

Gov. Bill Richardson of New Mexico, 2007 speech in Washington:

... Richardson told an Arab-American group that, as president, he would close the Guantanamo Bay prison for terrorists ... Richardson said the prisons at Guantanamo Bay and Abu Ghraib had made Americans 'very, very ashamed.'

'Nuff said.