'Nuff said

(Taking context-optional note of thought-provoking quotes)

'I will not sentence a man to 50 lashes with a whip and then 50 more for getting blood on the whip.'

– Senior Judge John C. Coughenour of the Seattle-based U.S. District Court for the Western District of Washington, quoted by New York Times reporter Kirk Johnson in an article on Wednesday's 2d resentencing of Ahmed Ressam. Months before the terrorist attacks of September 11, 2001, a federal jury had convicted the Algerian-born defendant of a 1999 plot to set off a bomb at Los Angeles International Airport. Ressam cooperated with the government respecting other cases, and so his sentence was delayed until 2005, well into the aftermath of 9/11. At each sentencing hearing, the government sought higher sentences than the judge imposed, and the appeals court reverse. At Wednesday's resentencing, the government sought life in prison; the judge levied a term of 35 years. The above-quoted comment by Coughenour, an appointee of President Ronald Reagan, reflected the judge's criticism of that prosecutorial stance.  Prosecutors justified it by pointing to the defendant's recantation of incriminating statements. The judge found the recanting to be "a deranged protest" against the sentence Ressam's already served – more than a dozen years so far, much of it in solitary confinement.

The judge's position bears added note given Hamdan v. United States (October 16, 2012), in which the U.S. Court of Appeals for the District of Columbia Circuit reversed the 1st military commissions conviction after trial. The circuit opinion was written by Judge Brett Kavanaugh, an appointee of President George W. Bush, who established the military commissions at Guantánamo. The D.C. circuit held that at the time the accused, Salim Ahmed Hamdan, acted, the sole count of conviction, material support for terrorism, was not a war crime under controlling international law.

On October 11

On this day in ...
... 2002 (10 years ago today), following on similar action in the U.S. House of Representatives, the Senate passed the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq. (map credit) The resolution would be signed into law by President George W. Bush on October 16. The United States would lead a coalition in invading Iraq in March 2003, beginning an intervention chronicled in our "...and counting..." series.

(Prior October 11 posts are here, here, here, here, and here.)

On July 30

On this day in ...

(photo by Kevin Lamarque/Reuters)

... 2002 (10 years ago today), in a ceremony at the East Room of the White House (right), President George W. Bush signed the Sarbanes-Oxley Act. Bush termed the law, known colloquially as SOX, "the most far-reaching reforms of American business practices since the time of Franklin Delano Roosevelt." Intended as a measure against corporate corruption, it established new rules for U.S. public company boards, management and public accounting firms. Its effect on international, as well as domestic, commerce has generated lots of commentary; for example, here, here, and here.

(Prior July 30 posts are here, here, here, here, and here.)

Look On! Turtles: Iraq war refugees

(Look On! takes occasional note of noteworthy productions)

I decided to watch Turtles Can Fly (2004), as part of my ongoing research into human rights and film, after it was recommended to me by a fellow intern at the International Criminal Court. She told me that it had invoked a strong reaction in her. I asked her if it was good, and she replied that she did not know what my criteria were to be able to answer my question.
When I review the films, I often do not have particular criteria in mind.

(credit)

I am not fixated by the 'legal realism' which dominated much of law and film scholarship beforehand; that is, I am not really interested in watching In the Name of the Father (1993), for instance, and pointing out all the procedural inaccuracies.
Nor am I purely looking at the formal aspects of cinematography. Being quite new to film studies, I often find myself captivated by the film and drifting off, instead of critically assessing the shots, editing, and mise en scène, all so de rigueur for film scholars.
But whatever the criteria, Turtles Can Fly, which focuses on the plight of children in refugee camps on the Iraqi/Turkish border, is an excellent film.
Turtles was directed by Bahman Ghobadi, who was himself born in Iranian Kurdistan. In a director's statement (p. 35 here), he wrote of the movie:

'Just as the world TV networks were announcing the end of the war, I began to make a film whose leading stars were neither Bush, nor Saddam, nor any other dictators. Those people had been the media stars the world over. Nobody mentioned the Iraqi people. There hadn't been a single shot of the Iraqis. They were mere extras...'

Shot on location, Turtles beautifully captures the consequences of war and poverty for children, who are often rendered extremely vulnerable. Many of the street children in the film have lost their limbs due to the Italian and US landmines. They receive money for picking them from the fields.
The film also tells the story of a girl, Agrin, and her brother, Hengov, who has lost his arms after stepping on a landmine. They have a small, blind child with them. It transpires that the toddler is the child of the girl. Through flashbacks, we see that the girl has been brutally raped by the men who killed their parents.
Through the course of the film I came to emotionally connect with the characters: Satellite, a boy in command of the children, the boy with no arms who can tell the future, the young boys collecting mines and hoping to be rescued by the American soldiers, the girl who has given birth to a baby that she does not want...
I have to thank my friend for this recommendation. An excellent and very moving film.

(Cross-posted at Human Rights Film Diary blog)

On June 26

On this day in ...
.... 2003, on the annual International Day in Support of Victims of Torture (marked yet again today), U.S. President George W. Bush said in an official statement:

'[T]he United States declares its strong solidarity with torture victims across the world. Torture anywhere is an affront to human dignity everywhere. We are committed to building a world where human rights are respected and protected by the rule of law.

'Freedom from torture is an inalienable human right. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, ratified by the United States and more than 130 other countries since 1984, forbids governments from deliberately inflicting severe physical or mental pain or suffering on those within their custody or control. Yet torture continues to be practiced around the world by rogue regimes whose cruel methods match their determination to crush the human spirit. Beating, burning, rape, and electric shock are some of the grisly tools such regimes use to terrorize their own citizens. These despicable crimes cannot be tolerated by a world committed to justice.'

Bush called out "[n]otorious human rights abusers" in, "among others, Burma, Cuba, North Korea, Iran, and Zimbabwe," lauded "Iraq's liberation" by a U.S.-led multinational coalition, and continued:

'The United States is committed to the world-wide elimination of torture and we are leading this fight by example. I call on all governments to join with the United States and the community of law-abiding nations in prohibiting, investigating, and prosecuting all acts of torture and in undertaking to prevent other cruel and unusual punishment.'

Less than a year later, photographs depicting brutality at Abu Ghraib, as well as Administration briefs dubbed the "torture memos," were revealed in the media. Since that time, as described in posts available here, here, and here, few persons have been prosecuted or otherwise held accountable.

(Prior June 26 posts are here, here, here, here, and here.)

On May 24

On this day in ...

... 2002 (10 years ago today), at Moscow, in a ceremony featuring Presidents Vladimir Putin, at far left, and George W. Bush, Russia and the United States signed the Strategic Offensive Reductions Treaty. (photo credit) Known as SORT, the weapons control treaty entered into force in 2003 and remained so until 2011, when it was superseded by the New START treaty discussed in prior IntLawGrrls posts.

(Prior May 24 posts are here, here, here, here, and here.)

Missed about War Time

University of Chicago Law Professor Eric Posner has spent much of the last decade criticizing the liberal legal response to post-9/11 government policies. In his review of my new book War Time – about which IntLawGrrls posted yesterday – Posner sticks to the script. But this leads him to miss a critical point: the book does not reinforce post-9/11 liberal thought but instead criticizes it.
What’s at stake here is the way the very concept of “wartime” works in contemporary American law and politics. Just in the past week, Defense Secretary Leon Panetta announced that the United States hopes to end its combat mission in Afghanistan in 2013. Meanwhile, at Guantánamo and elsewhere, the United States holds enemy combatants “for the duration of hostilities.” The “endings” of combat in Afghanistan and Iraq (prior IntLawGrrls posts) appear to have no consequences for the ending of detention. This illustrates a difficulty: there is a disconnect between the wars the United States is ending (Iraq and Afghanistan), and the war that has justified detention (the war on terror). President Obama generally has not employed the Bush Administration’s idea of a “war on terror,” but the war on terror continues to serve as the basis for detention.
This particular disconnect helps to uncover a more enduring problem of the misfit between the way war is conceptualized and the military conflicts the nation engages in. In War Time, I argue that this is not a new phenomenon. It has been of great importance at least since the Cold War. Uncovering the disconnect could enable more transparent decision-making – whether it be liberal-leaning or conservative.
Posner gets distracted by the usual right/left argument about war and civil liberties, and he reads the book as taking a position on the left side of that debate. I will address why this is a misreading in a later post (my argument is more about the scholarship on civil liberties, identifying a conceptual problem on both the left and the right), but right now let me take up what the book is actually doing.
A reader looking for conventional liberal complaints about post-9/11 government policy might be puzzled, as Posner is, about the reason the book spends so much time talking about time itself. The book is not a traditional historical narrative, but a work of critical historiography and intellectual history. It is short because it focuses on just one thing: the way ideas about time are part of the way we think about war, as captured in the very term “wartime.”
That temporal thinking is built into the way war is conceptualized goes back at least to the British political theorist Thomas Hobbes, who wrote in The Leviathan (1660):

Mugesera Deported

It has been a busy week for aficionados of International Criminal Law. One development that may have escaped notice concerns our neighbor to the north.

Rwandan Léon Mugesera recently lost appeals filed before provincial and federal courts in Canada seeking to prevent his deportation to Rwanda. Mugesera is known for an inflammatory speech given in 1992 that is believed to have helped trigger the genocide that engulfed Rwanda a year and a half later. After he successfully applied for permanent residence in Canada, Canadian immigration authorities commenced deportation proceedings against him. In 2005, the Supreme Court of Canada reversed an appellate court’s ruling that Mugesera did not deliberately incite murder,hatred or genocide. The Supreme Court concluded that there were “reasonable grounds to believe” that Mugesera committed crimes against humanity—the standard for deportation. The full speech is appended as appendix III to the Supreme Court opinion.
In an effort to avoid deportation, Mugesera invoked the non-refoulement principle, among other arguments, claiming that he would be subjected to persecution in Rwanda if he were returned. He filed an Article 22 individual petition before the Committee Against Torture, the body charged with enforcing the Convention Against Torture, seeking the Committee’s views on his vulnerability to torture. The Committee by letter requested Canadian officials to stay deportation so it could consider the petition. The Quebec Superior Court temporarily stayed the deportation, but then ruled that the Committee lacked the power to constrain states parties because it was limited to offering its views on individual petitions. It also determined that the responding to the Committee was an executive function, rather than a judicial one.

On January 24^th, after a 16 year legal battle, Mugeserawas deported and is now in custody in Kigali. This result, while welcomed by many, remained controversial, as many in Canada argued that Mugesera should have been prosecuted for his underlying crimes (including incitement to genocide) rather than simply deported.  So far, Canada has prosecuted only two individuals under its Crimes Against Humanity and War Crimes Act:

• Désiré Munyaneza and
• Jacques Mungwarere—both Rwandans.

(See our coverage of the Munyaneza case here). The current government has indicated an intention to streamline its laws (particularly the Immigration and Refugee Protection Act) to make deportation even easier. 

For more on Canada’s Crimes Against Humanity and War Crimes program, see here. Good coverage is also available on the website of theCanadian Center for International Justice). (We’ve covered the work of CCIJ before, see here (the effort to prosecute George W. Bush in Canada) and here (on Canada’s war crimes programgenerally and the prosecute v. deport debate)).

Guest Blogger: Joanna Cuevas Ingram

It's my great pleasure to welcome a former student of mine, Joanna Cuevas Ingram (right), as today's guest blogger.
Joanna's a third-year law student at the University of California, Davis, School of Law, where she also serves as Editor-in-Chief of the U.C. Davis Journal of International Law and Policy.
This past summer, she was one of two California-Davis students awarded a University of California Human Rights Fellowship; she worked at the Center for Constitutional Rights in New York, where she also was a Summer 2011 Ella Baker Fellow. In her guest post below, Joanna describes the efforts of CCR and other human rights organizations to compel Canada to prosecute former U.S. President George W. Bush on allegations of torture.
Following her graduation from Occidental College in Los Angeles, Joanna held a number of positions, including Labor and Community Organizer for SEIU, the Service Employees International Union. In summer 2010, as a King Hall Legal Foundation Fellow, she worked at the Center for HIV Law and Policy in New York.
Last academic year, Joanna served as my research assistant on 2 projects: the 2010 Darfur Project report produced jointly by the California International Law Center at King Hall and the Robert F. Kennedy Center for Justice & Human Rights, and the special issue of the International Criminal Law Review on "Women and International Criminal Law" (prior posts). She also is a research assistant to California-Davis Dean Kevin R. Johnson, and was a law clerk in the school's Immigration Law Clinic.
Heartfelt welcome!

The Convention Against Torture, the Canadian Criminal Code & the Prosecution of George W. Bush

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Yesterday, the former President of the United States, George W. Bush, was scheduled to speak in British Columbia, at the Surrey Regional Economic Summit.
Given Bush's presence in Canada—a state party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – many international scholars and human rights advocates alike, including Amnesty International and Human Rights Watch, are asking: Why aren’t Canadian officials indicting him for torture?
Attempts have been made in the national courts of Switzerland, in Germany, in France, and in Spain to hold Mr. Bush and other former top administration officials accountable. Under Article 5(2) of the Convention Against Torture, Canada may be obligated either to submit the case against George W. Bush for the purpose of prosecution or to extradite him to a third country willing to engage in prosecution. But thus far, the Attorney General of Canada has failed to do so.
Is Canada placing politics above the law?
If it is, that may be about to change.
Yesterday, four individuals who allege they were tortured during George W. Bush’s tenure as President of the United States filed to bring a private prosecution against him in Provincial Court in Surrey, British Columbia (right). (photo credit) The four men took this step after repeated calls by human rights organizations to the Canadian Attorney General to open a torture investigation of George Bush went unanswered.
According to the filing, the four men, Hassan bin Attash of Saudi Arabia, Sami el-Hajj of Sudan, Muhammed Khan Tumani of Syria, and Murat Kurnaz, a German-born Turkish citizen, each endured years of inhumane treatment that violated the Convention Against Torture. The horrific and illegal treatment, which they say occurred while in U.S. custody at military bases in Afghanistan or at the detention facility at Guantánamo Bay, included beatings, chainings to cell walls, being hung from walls or ceilings while handcuffed, lack of access to toilets, sleep, food and water-deprivation, exposure to extreme temperatures, sensory overload, and sensory deprivation. Three of the plaintiffs have since been released without ever facing charges. Hassan Bin Attash still remains in detention at Guantánamo Bay, though he too has not been formally charged.
Said former Guantánamo detainee and torture survivor Muhammed Khan Tumani:

'Although I was completely innocent, I lost nearly 10 years of my life. I suffered greatly while detained at Guantánamo, and continue to suffer. I have restrictions on my travel and cannot travel to see my father who is ill. George Bush must face justice and be held accountable for his actions, which continue to cause me and so many harm.'

Over 50 Human rights groups and prominent individuals are signing on in support.
On September 29 and October 14 of this year, the New York-based Center for Constitutional Rights and the Canadian Centre for International Justice, which has offices in Ottawa and Vancouver, made joint requests for the indictment of former President Bush for his role in the authorization and oversight of acts of torture committed pursuant to his administration’s well-documented torture program. The request for indictment was based upon Canada’s obligations under the Convention Against Torture, on Canadian Criminal Code § 269.1, which addresses criminal liability for torture, and on Canadian Supreme Court precedent condemning the acts of torture that took place at Bagram Air Base, secret “black sites,” through extraordinary renditions, and at Guantánamo against detainees in U.S. custody. The legal grounds for liability under the Canadian Criminal Code are based on evidence that Mr. Bush ordered, authorized, condoned, planned or otherwise aided and abetted acts of torture, or, at a minimum, that he failed to prevent or punish subordinates who committed these acts.
CCR and CCIJ delivered over 4,000 pages of exhibits, admissions and evidentiary materials together with joint letters and a 70-page legal brief and draft indictment to Canada's Attorney General, Robert Nicholson. Given the overwhelming documentation, there are reasonable grounds to believe that Mr. Bush is responsible for acts of torture and other cruel, inhuman and degrading-treatment and enforced disappearances, violations that took place during the CIA's secret detention program between 2002 and 2009.
Remarkably, as reported in this Washington Post article, the indictment is also supported by statements made by George W. Bush. His 2010 memoir, Decision Points, describes his role in the creation of the CIA secret detention program and the approval of “enhanced interrogation techniques,” such as waterboarding. Despite Mr. Bush’s arguments about the need for the authorization of waterboarding in the context of the “war on terror,” Article 2(2) of the Convention Against Torture:

'No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.'

The Canadian Federal Court of Appeal and the Canadian Supreme Court have in some ways acknowledged that the Bush regime authorized acts in violation of both the Convention against Torture and § 7 of the Canadian Charter of Rights and Freedoms, if not § 269.1 itself. This occurred with respect to the conditions of detention and interrogation of Omar Khadr, a Canadian citizen detained at Guantánamo. (See paragraph 51 here and paragraph 25 here.) The Canadian Supreme Court also made the following clear, at paragraph 50 of a 2002 decision, Suresh v. Canada (Minister of Citizenship and Immigration):

It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force.

Several recent Canadian asylum cases found sufficient evidence of command responsibility or membership in an organization responsibilty for acts of torture– not much unlike, and potentially less extreme than, acts apparently authorized by top officials in the Bush Administration.
Despite the overwhelming evidence presented to Canada’s government, Bush administration officials continue to visit the country with impunity.
Similarly, if Mr. Bush were not a former U.S. official authorizing the very same acts, would his fate be different from Mr. Bazargan (Iran, 1996), Mr. Bonilla (Colombia, 2009), Mr. Equizabal (Guatemala, 1994), Mr. Ishaku (Democratic Republic of the Congo, DRC, 2011), Mr. Ryivuze (Burundi, 2007), Mr. Sivakumar (Sri Lanka, 1997), Mr. Syed (Pakistan, 2006) or Mr. Zazai (Afghanistan, 2005)?
Why such selective recognition and enforcement of Canada’s bans against torture and crimes against humanity?
In my view, the Bush Administration’s legacy of torture has tarnished what remains of the reputation the United States maintained as a “beacon” of diplomacy democratic values. Will profitable political business relationships with former political leadership in the United States now sully the reputation of Canada’s judiciary as an independent body working to secure justice, fairness and equity for all?
People around the world need Canada to be a defender of human rights, not a country that conveniently forgets its principles when those accused of authorizing torture happen to be powerful neighbors. Today, with the filing of the first private criminal prosecutions against Mr. George W. Bush for torture, the Canadian judiciary has the chance to prove its mettle to its citizenry and the world.

On October 7

On this day in ...
... 2001 (10 years ago today), air strikes and covert ground operations marked the beginning of Operation Enduring Freedom, a U.S.-led offensive in Afghanistan intended as a response to the terrorist attacks of September 11, 2001, in the United States. In a public broadcast, according to the BBC, President George W. Bush

'promised a 'sustained and relentless' campaign. ... He warned there was 'no neutral ground; and that any government sponsoring terrorism would be taking a 'lonely path at their own peril.'

(Prior October 7 posts are here, here, here, and here.)

On September 19

On this day in ...
... 2001 (10 years ago today), The New York Times reported:

President Bush ordered heavy bombers and other aircraft to within easy striking distance of Afghanistan today and insisted that its ruling Taliban turn over Osama bin Laden and other suspected leaders of a terrorist organization believed to be behind last week's attacks in New York and Washington.

Thus began a post-9/11 counterassault on then-Taliban-controlled-Afghanistan that, as we've frequently recounted, continues to this day, notwithstanding the passage of a decade, the change in U.S. administrations (prior posts), and the killing of bin Laden (prior posts). (map credit)

(Prior September 19 posts are here, here, here, and here.)

Why I Hate Al Qaeda

(This post by IntLawGrrl Karima Bennoune marks the anniversary of the terrorist attacks of September 11, 2001, as her did posts on previous 9/11s, in 2010 and 2008)

Why I Hate Al Qaeda

September 11, 2011

To start, there are 2,975 reasons from 90 countries. An unforgettable patchwork quilt of humanity that was disappeared on a Tuesday morning ten years ago. (credit for photo above depicting many victims of 9/11) But that is only the beginning.
I hate Al Qaeda for all the human beings they have killed – the Africans, Americans, Arabs, Asians, Europeans, agnostics, atheists, Christians, Jews, Hindus, Muslims.
I hate Al Qaeda because they have murdered thousands of Muslims even while claiming to represent them, a claim they make even while bombing mosques during Ramadan. Because they reduce a rich religious heritage to a series of absurd prohibitions. They make the most sacred pronouncements, like Allahu Akbar – God is Great – into threats, into epithets.
I hate Al Qaeda because of the Caliphate of Doom they want to build.
I hate Al Qaeda because in these ten years they have facilitated the brutality of some on the right who built “enhanced interrogation” chambers for celebrations of simulated drowning. Because now almost everyone accepts a little torture.
But I also hate Al Qaeda because they have inspired some on the left to say the stupidest things. Proclaiming that Osama bin Laden was in the end simply an “unarmed victim” about whom there was no evidence of wrongdoing. That Anwar al-Awlaki is just a “Muslim cleric.” The people in the towers on 9/11 were “little Eichmanns” who deserved their fates. Inane.
I hate Al Qaeda because they hate women, gays, Jews, Christians, Muslims not like them, which is most Muslims. Because they only hate. And they make me hate too.
I hate Al Qaeda because they wanted a clash of civilizations. And we gave it to them in Qur’an burnings, in marches against Mosques, in Iraq.
I hate Al Qaeda because they support every one of the worst Muslim movements – Al Shabab (“the youth”), the Taliban (“the students”), Boko Haram (“Western education is a sin”) – the same movements we must defeat for the real youth, the actual students, to get a decent education, to have a future. Because we have to waste time talking about them when we should be talking about building that future for generations coming of age in an economic and environmental meltdown.
I hate Al Qaeda because the way forward should be the Democratic Spring, because jihadism should be the past.
I hate Al Qaeda for the young Algerian fiancé who bled to death in his mother’s arms in Cherchell after a suicide bomber broke his fast this August; for Mustapha Akkad and his daughter Rima; for Danny Pearl, Amenia Rasool, and Father Mychal Judge, all of whom are no more because Al Qaeda is.
I hate Al Qaeda for the bombs of Baghdad, of Algiers, of Amman, of Dar es Salaam, of all the cities they have blighted like New York. (credit for photo at left of firefighter standing amid smoldering ruins at World Trade Center days after the 9/11 attacks) Because a myriad of conspiracy theorists absolve them of their crimes even when they say they have committed them.
I hate Al Qaeda because there is no excuse for what they do, yet people make excuses for them.
I hate Al Qaeda because not enough of us will openly say we hate them, but those who do, no matter the risk, are made invisible. Because a Muslim bomber always makes headlines while a peace activist of Muslim heritage warrants virtually none.
I hate Al Qaeda because they make it harder for people who look like my father to board an airplane. Because they confirmed every racist’s view of Muslims. And provoked responses from the Bush Administration that confirmed every anti-American cliché.
And I hate Al Qaeda because on one breathtaking September day they changed the world in an explosion of cruelty.
Ten years on, I am ready to stop hating Al Qaeda. I am ready to stop Al Qaeda.

Not a moment too soon

OLC finally has a leader.
OLC stands for Office of Legal Counsel, an arm of the U.S. Department of Justice responsible for giving Executive Branch officials legal opinions on contemplated action. (photo credit) It's an acronym that IntLawGrrls readers will recall for at least 2 reasons:
► Out of this office came the some of the most notorious documents of the George W. Bush Administration, the so-called torture memos, which purported to construct a legal cover for the harshest methods of interrogation and detention.
► Even before his own inauguration, then-President-elect Barack Obama nominated Indiana Law Professor Dawn Johnsen, whose Bush-era critiques of the torture memos included an IntlawGrrls guest post. But her confirmation battle was nasty, brutish, and long. It ended with Dawn's withdrawal from consideration in April 2010.
At a Northwestern Law symposium in May, Dawn urged the confirmation of her successor nominee, Virginia Seitz (below left). (photo credit) The Sidley & Austin partner had been nominated the 1st week of this year, but her confirmation process too seemed stalled. In a vein similar to an op-ed she'd written the year before, Dawn stressed the importance of the work of OLC. Among the issues on which the office gave advice, she noted, were military targeting and others related to the laws of war.
Dawn's comments proved prescient in the middle of this month: The New York Times reported that the administration's top lawyers had divided on whether U.S. military involvement in Libya constitutes "hostilities" that require congressional approval pursuant to the War Powers Act.
Many commentators have pondered the personalities in that debate, mulled who took what side. (See, for example, Yale Law Professor Bruce Ackerman's criticism. State Department Legal Adviser Harold Hongju Koh testified on the matter before a Senate committee yesterday.)
Particularly noteworthy to this 'Grrl was that OLC had lost the President's ear. Times reporter Charlie Savage explained:

Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In the Libya war powers instance, however, Obama did overrule OLC's views -- as delivered through an acting head. One can only wonder whether those views would have carried more weight had the office been given the benefit of a permanent leader these last two years.
Yesterday the Senate confirmed the nomination of Seitz, a superbly credentialed lawyer. Formerly a law clerk to U.S. Supreme Court Justice William J. Brennan, and a member of the Women's Bar Association, she becomes the 1st woman to head the office in a permanent capacity, and the 1st permanent head since 2004, when Jack Goldsmith, now a Harvard law professor, left.
Confirmation came not a moment too soon. Here's hoping Seitz can reclaim for OLC the governmental gravitas it once enjoyed.

On June 29

On this day in ...
... 2006 (5 years ago today), in Hamdan v. Rumsfeld, the U.S. Supreme Court invalidated special military commissions established by fiat of President George W. Bush in the wake of the terrorist attacks of September 11, 2001. (photo credit) A majority joined most parts of Justice John Paul Stevens' lengthy opinion, which covered many aspects of Bush's commission plan. As discussed in posts available here and in my article here, within months Congress passed the Military Commissions Act, which reinstated much of that plan. The petitioner in Hamdan subsequently was convicted of material support for terrorism. The conviction was affirmed just last Friday, in United States v. Hamdan, a decision by a 7-member panel of the U.S. Court of Military Commission Review. (hat tip) This court, which was born out of the 2006 Act, held the offense to be cognizable as a war crime -- despite considerable commentary to the contrary.

(Prior June 29 posts are here, here, here, and here.)

Women lead

A couple administrative shakeups worth mentioning:
► Jill Abramson (left) will become the Executive Editor of The New York Times, the 1st woman to hold that top journalistic job since the paper was founded 160 years ago. (photo credit) Formerly and investigative reports and chief of the Washington bureau, she's been The Times' managing editor since 2003.
► Kathryn Ruemmler (below right) will serve as White House Counsel. She's been Principal Deputy Counsel to President Barack Obama since January 2010. Before that she was a federal prosecutor, a Deputy Attorney General at the U.S. Department of Justice, and a private practitioner. (photo credit) Ruemmler's the 3d woman to become White House Counsel. The 1st was Beth Nolan, appointed by President Bill Clinton in 1999; the 2d was, of course, Harriet Miers (prior post), whom President George W. Bush subsequently tried, in vain, to put on the U.S. Supreme Court.

Jerusalem status @ U.S. Supreme Court

A policy of not recognizing Jerusalem as part of the state of Israel is about to be tested in the U.S. Supreme Court.
Yesterday the Court agreed to review a decision below in M.B.Z. v. Clinton, which presents the following question:

Whether the 'political question doctrine' deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport.

The case began 9 years ago, when U.S. citizens, Ari and Naomi Zivotofsky, gave birth to a boy whom they named Menachem Binyamin. The U.S. State Department refused to record the Jerusalem hospital birth has having occurred in the state of Israel -- a refusal related to Executive Branch efforts to negotiate a settlement in the chronic dispute between Israelis and Palestinians respecting the status of the city. (credit for map, courtesy of State Department)
The executive policy underlying the department's refusal ran counter to Section 214(d) of the Foreign Relations Authorization Act for 2003. The provision stated:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

The Act became law when President George W. Bush signed it on September 30, 2002 -- but only after Bush voiced objection to the provision via this signing statement:

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

The parents invoked the statute as the basis for their lawsuit, but the U.S. Court of Appeals in the District of Columbia dismissed on the ground of political question.
In its filing available here, the Obama Administration agreed with its predecessor that the U.S. Constitution gives the President "sole discretion" on how to term the child's place of birth. Whether that is correct is a question that awaits deliberation by the Court.

On February 26

On this day in ...
... 2004, in an executive order, U.S. President George W. Bush lifted some restrictions on contacts with Libya. The move followed Libya's December 2003 pledge to dismantle its nuclear technology program, which was aimed at producing nuclear weapons but which was far from that goal at the time of the pledge. The New York Times reported:

The partial lifting of sanctions enables Libya, which produces about 1.4 million barrels of oil every day, to draw back American oil companies. A number of American companies, including Marathon Oil, Occidental Petroleum and ConocoPhillips, have already indicated interest in exploring new relationships with Libya.

Any such relationships are again in doubt given bloody attacks by leader Moammar Gadhafi (prior posts) on Libyan civilians who are demonstrating against his regime. Indeed, current events are provoking not only new U.S. sanctions, but also questions about the wisdom of the thawing of U.S.-Libya relations that began on this day in 2004.

(Prior February 26 posts are here, here, here, and here.)

On December 12

On this day in ...
... 2000 (10 years ago today), 5 weeks after national balloting, the Supreme Court issued its decision in Bush v. Gore, holding Florida's vote recount a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, and thus making way for the January inauguration of former Texas Governor George W. Bush as the country's 43d President. (photo credit) Division on the Court was evident in these concluding lines of the dissent of Justice John Paul Stevens:

Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

(Prior December 12 posts are here, here, and here.)

UNCLOS needs bipartisan push

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Twenty-eight years ago, on December 10th, 1982, 119 nations signed the United Nations Convention on the Law of the Sea, a convention that the United States has yet to join. It was written recently that the American government can no longer approve treaties, at least not ones of importance. While IntLawGrrls Diane Marie Amann made a convincing counterargument, the case of the United Nations Convention on the Law of the Sea (prior posts) could leave one pondering the issue again. (credit for photo of 1982 U.N. law of sea conference in Montego Bay, Jamaica)
UNCLOS is recognized worldwide as one of the great accomplishments in modern international law. Responding to changes of ocean use that were undermining the three-century-old Grotian regime of free seas, negotiators labored for more than a decade to craft a convention that benefited all nations. Then they labored another dozen years to resolve the last of the concerns, enumerated by President Ronald Reagan, which had previously kept the United States from joining the Convention.
Though it can be intimidating in its scope and detail, the Convention has garnered the support of the U.S. Navy and Coast Guard, the energy, transportation, fishing and telecommunications industries, and non-profit organizations committed to conservation, law, and international engagement. In fact, there is no international agreement in decades that has garnered such a broad and powerful body of domestic support.
In spite of this support, UNCLOS, with its partner agreement on the implementation of Part XI, has been stalled in the Senate for 16 years.
For the first eight years, Senator Jesse Helms (R-N.C.), who chaired the Foreign Relations Committee, refused all requests for hearings. In 2003, when Helms retired and Senator Richard Lugar (R-Ind.) took his place, the Convention moved smoothly through hearings and unanimous approval in committee, but was brought to a halt by Senate Majority Leader Bill Frist (R-Tenn.).
After Democrats took control of the Senate in 2007, the Convention was once again approved in committee -- only to have George W. Bush’s support disappear in light of the foxhole conversion of Senator John McCain (R-Ariz.) to opposition to the Convention during his campaign for the Republican nomination.
The Convention returned to the Senate Foreign Relations Committee again at the beginning of 2009. The new administration of President Barack Obama listed the Convention as one of 17 “priority” treaties, but never placed it above the economy and other domestic issues in the Administration’s legislative agenda. Without active Presidential support, the Senate declined to act.
At the beginning of 2011, the Convention will automatically return to the Senate Foreign Relations Committee to start the process once again.
So, should supporters of the Convention be discouraged and turn their attention and energy to other matters in 2011? That would be understandable, but it would be wrong.
The loss of 6 Democratic seats and replacement of several supportive Republicans certainly increases the effort needed to secure Senate advice and consent over the current session, during which the 2/3 majority was assured. Still, the outlook is more promising than in any other session since hearings began in 2003.
The key to approval of the Convention in 2011 lies in mobilizing a bipartisan coalition that includes Senate Democrats and Republicans, leaders of major industries, environmental groups, good governance and international engagement organizations, and respected Republican statesmen and military leaders. Most of these have already endorsed the Convention, but they won’t pull out their big guns and commit their political and financial assets unless and until the President calls on them to make common effort to secure approval.
The downside for the President is that the Convention will be subjected to all the procedural roadblocks that opposing Senators, James Inhofe (R-Okla.), David Vitter (R-La.), and Jim DeMint (R-S.C.) can devise. This includes not one but two filibusters and cloture votes -- one for adoption of the Convention and another for adoption of the resolution of advice and consent. These delays would come at the cost of floor time for other legislative issues.
In addition to the Senate battle, another contest will be fought by grassroots groups through faxes and e-mails.
Conservative and libertarian networks such as “FreeRepublic.com” and “GrassFire.org” have deluged Senate offices with thousands of messages on a moment’s notice. These communications are fraught with errors and outright lies, but the number of opposition messages puts senators on the defensive.
In the past, there have been no corresponding efforts to support for the Convention. This has to change. But just as businesses want to know that the Administration is serious before committing their CEOs and their political resources, public interest groups want to know that they will be part of a team effort and will not be abandoned by the Administration along the way.
Two women leaders will be key to success in approving the Convention: Secretary of State Hillary Clinton and Senator Lisa Murkowski (R-Alaska). (photo credit) Both have been outspoken supporters of the Convention, notably during Secretary Clinton’s confirmation hearing (video clip). The commitment recently was repeated Clinton’s comments to the Commonwealth Club in San Francisco:

We're going to prioritize the Law of the Seas next year. It is critical to how we're going to manage the Arctic. It is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea. It is so much in America's interests. And the objections to it are just not well founded. So I'm hoping that we'll be able to get a hearing on it early in the year and get a vote on it as soon thereafter as possible.

In the end, success or failure regarding the Convention on the Law of the Sea rests with President Obama, for three reasons:
► First, he, with Senate Majority Leader Harry Reid (D-Nev.), will determine where the Convention fits in the Senate’s agenda;
► Second, military leaders, always strong supporters of the Convention, will not move forward until the President directs them to do so; and
► Third, the heavy hitters of industry, environment and public interest groups will only move as part of a concerted effort with the Administration.
While Clinton and Murkowski will help lead the effort to move the Convention through the Senate, their effort cannot get underway until the President enlists partners inside and outside the government in a bipartisan and multi-sector effort to secure the support of all but the most ideological opponents in the Senate.