In search of limits for the Alien Tort Statute

Supreme Court Grand Chamber

In the reargument of Kiobel this week, the justices of the U.S. Supreme Court seemed to be searching for a way to limit the scope of the Alien Tort Statute.
As detailed in previous IntLawGrrls posts, Kiobel v. Royal Dutch Shell involves claims that Shell aided and abetted the Nigerian government’s commission of crimes against humanity in connection with suppressing opposition to Shell’s oil extraction operations. The plaintiffs, who received asylum in the United States and currently reside here, filed the lawsuit in federal court in New York.
The U.S. Court of Appeals for the Second Circuit held on appeal that the suit should be dismissed because a corporation (as opposed to a natural person) could not be sued under the ATS. The Supreme Court originally granted certiorari on the question of corporate liability. Shortly after the oral argument on that question in February of this year, the Court set the case down for reargument this fall, with the addition of a question on the broader question of whether the ATS applied to conduct outside the territory of the United States.
Many thought that the answer to that question was implicit in the Court’s decision in 2004 in Sosa v. Alvarez-Machain, in which the Court seemingly endorsed the line of cases that began in the 1980s with the Second Circuit’s decision in Filártiga v. Peña-Irala. Filártiga had allowed an ATS suit to go forward, against a former Paraguayan police officer living in the United States, for the torture and murder of the plaintiffs’ relative in Paraguay. The relevant portions of Sosa were joined by a 6-to-3 majority of the Court (including Justice Anthony M. Kennedy, a crucial swing vote).

Justice Kagan

The issue of the presumption against extraterritorial application of statutes was explicitly argued in the Sosa case, including in the brief of the U.S. government. Nevertheless, the Court in Sosa did not adopt that line of reasoning.
To the contrary, as Justice Elena Kagan noted in her questions during the argument this past Monday, the opinion in Sosa quotes from the Filártiga court’s declaration that

'for purposes of civil liability, the torturer has become like the pirate and slave trader before him ... an enemy of all mankind.'

Echoing this line of reasoning, Justice Stephen G. Breyer asked in this week’s argument,

Justice Breyer

'[T]he question to me is who are today's pirates. And if Hitler isn't a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today's pirate, who is?'

Some observers speculated that the Court was eager to find another ground for decision, feeling that this suit seemed a bridge too far in its attenuated connection to the United States (while the plaintiffs are resident here, the defendants are U.K. and Dutch corporations, and the conduct occurred in Nigeria), yet also feeling was reluctant to rule for Shell on the corporate liability question. That presumed reluctance would be due to the unspoken shadow of the Court's decision in Citizens United v. FEC (2010). Here's the question that ruling suggested in the context of Kiobel:

If corporations are “persons” who have First Amendment rights to spend money on political campaigns, how can it be that they are not “persons” who can be sued for committing torture and genocide?

While the issues are legally distinguishable, they might not be so received by the general public. (In fact, the cab driver who drove me away from the Court on the day of the first Kiobel argument – which I attended as co-counsel in a companion case that has since been dismissed, Mohamad v. Palestinian Authority – brought up the Citizens United analogy when he learned what the question presented in Kiobel was.)
Other, less cynical observers noted that the extraterritoriality issue had been aggressively briefed by some of the amici, and that several newer members of the Court might be eager to revisit the basic holding of Sosa.
During this week's reargument (full transcript available here):
► Shell’s lawyer, Kathleen Sullivan, argued for a categorical rule against any extraterritorial application of the ATS – a rule that would exclude Filártiga and other cases like it.
► Paul Hoffman, for the plaintiffs, argued against such a categorical rule, but emphasized the other ways – not currently before the Court – in which ATS actions could be limited, including doctrines such as personal jurisdiction, forum non conveniens, political question, and exhaustion.
► Solicitor General Donald Verrilli, arguing for the U.S. government, offered a confusing compromise solution. The government’s position seemed to boil down to an argument that Filártiga itself should remain good law, because we don’t want the United States to become a safe haven for individual torturers. But the Kiobel suit should not be allowed, this argument continued, because it involved (1) a foreign corporation (2) aiding and abetting (3) a foreign government (4) in the latter's territory. It was not at all clear which of these conditions would be either necessary or sufficient to the outcome.
The government refused to say how any other case – including past cases such as the Marcos case – should come out. This seemed to frustrate some on the bench.
Still other justices seemed frustrated by the government’s inconsistent positions on ATS suits.

Justice Scalia

The government had filed in favor of the Kiobel plaintiffs on the corporate liability issue, and had previously taken a more categorical position against extraterritoriality in Sosa. Justice Antonin Scalia went so far as to ask why the government should receive any deference at all in its articulation of the nation’s foreign policy interests. (From a separation of powers perspective, Scalia’s approach was somewhat shocking; isn’t the fact that the executive branch is elected and may change its position in light of elections precisely why the unelected judiciary is supposed to be deferential to it in matters of statutory interpretation, particularly on matters such as foreign policy where the executive has comparatively greater expertise?)
► Shell’s lawyer, Sullivan, suggested that applying a blanket rule against extraterritorial application of the ATS would be a “democracy-forcing device” to send the issue back to Congress. But Sullivan’s argument gets basic principles of statutory interpretation exactly backwards.
The principle of stare decisis applies particularly strongly in cases of statutory interpretation precisely because the legislature can change statutes that it believes the Court has wrongly interpreted. Eight years have passed since the Court interpreted the ATS to allow suits based on extraterritorial conduct in Sosa, and there is no shortage of corporate lobbyists who have pressed their woo on Congress since then. And yet Congress has left the ATS intact, apparently agreeing with the U.S. government’s current position that providing accountability for human rights abusers is consistent with U.S. foreign policy interests.
► As Hoffman noted, there are a million ways that ATS plaintiffs can and do lose, even when they have suffered grievous wrongs.
In this case, the defendants apparently failed timely to raise and pursue issues such as personal jurisdiction, forum non conveniens, political question doctrine, and exhaustion, choosing to emphasize other arguments instead. (Actually, Shell also failed to raise both the corporate liability and the extraterritoriality questions in a timely fashion – both were brought up for the first time on appeal.) Shell can clearly afford a good lawyer when it wants one, and its poor lawyering in the district court should not be rewarded with a massive and unjustified victory on appeal.

Joint session of Congress

Reasonable judicial modesty suggests that Sosa should not be overturned. If the members of Congress want to change the law to protect corporations who do business here while aiding and abetting torture in foreign lands, let’s at least make them vote for that on the record.
Isn’t that how democracy works?

'Nuff said

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

Arkansas Supreme Court (credit)

'It is evident to this court that the legislature has abdicated its responsibility and passed to the executive branch, in this case the [Arkansas Department of Correction], the unfettered discretion to determine all protocol and procedures, most notably the chemicals to be used, for a state execution. The [Method of Execution Act] fails to provide reasonable guidelines for the selection of chemicals to be used during lethal injection and it fails to provide any general policy with regard to the lethal-injection procedure. Despite the fact that other states may analyze similar statutes differently according to their respective constitutions, we are bound only by our own constitution and our own precedent.'

–  Judgment in Hobbs v. Jones, a decision (available in full here), issued yesterday, in which a 4-member majority of the Arkansas Supreme Court ruled a 2009 lethal-injection law to violate the Arkansas Constitution; specifically, its guarantee of separation of powers. Justice Karen R. Baker (above at far left) wrote the 2-member dissent, while Justice Courtney Hudson Goodson (above at far right) voted with the majority. The judgment sends the fate of the 40 men now on death row in Arkansas back to the legislature.

On April 8

On this day in ...
... 1952 (60 years ago today), in a speech to the American people, President Harry S. Truman said the U.S. government would seize control of the steel industry in order to avert a national strike, an event he contended would imperil the security of a country whose troops then were engaged both in armed conflict in Korea and in anti-Soviet containment efforts in Europe. On June 2 of the same year, the U.S. Supreme Court would invalidate the order in Youngstown Sheet & Tube v. Sawyer, a judgment (prior IntLawGrrls posts here, here, and here) still considered a landmark in setting out separation of powers among the 3 branches of the U.S. government. Studies of the incident include Truman and the Steel Seizure Case (1977), by legal historian Maeva Marcus (left), currently a Research Professor of Law at George Washington University.

(Prior April 8 posts are here, here, here, here, and here.)

How the Cold War matters to war powers debate

(This is the second in a series of posts; the first post, published yesterday, is here.)

Helpfully generating an on-line discussion of my new book, War·Time: An Idea, Its History, Its Consequences, University of Chicago Law Professor Eric Posner dismissed an argument about Cold War statebuilding, writing that "it would be hard to exaggerate legal scholars’ obsession with the rise of executive power, going back at least to the Nixon administration, indeed to the New Deal."
The question of why the Cold War matters to an understanding of the war powers debate might, at first glance, seem obvious.
The most iconic U.S. Supreme Court case about the presidential war power, Youngstown Sheet & Tube v. Sawyer (1952), known as the Steel Seizure Case, is a product of the Cold War era, decided during the Korean War. We might also think of the Cold War as one “wartime” among many in American history, so that we might compare this wartime to others when analyzing the role of the courts in reining in executive power. It’s especially when this sort of argument is employed that the Cold War presents some difficulty. The Cold War is ambiguous, on its own terms. Was it really a “wartime” that we can compare with others, or was it something else?
The problem of just what the Cold War was was anticipated by George Orwell in 1945. When reflecting on what the advent of nuclear weapons would bring, Orwell suggested that the world would be divided between two or three “monstrous super-states,” each with nuclear weapons, that would “divid[e] the world between them.” These monster states would not use the bomb against each other. Instead, they would be “unconquerable and in a permanent state of ‘cold war’” with their neighbors. The nuclear age would therefore bring “an end to large-scale wars at the cost of prolonging indefinitely ‘a peace that is no peace.’” The idea that the Cold War was neither wartime nor peacetime ultimately competed with a discourse of the end of peace itself – the idea that wartime had become a permanent feature of the world.
The nature of the Cold War was troublesome at its ending as well as its onset. When an American soldier thought of as “the last Cold War casualty” was laid to rest on March 30, 1985, in Arlington National Cemetery, a controversy erupted about how he should be remembered. Arthur Nicholson’s headstone reads: “Killed in East Germany, U.S. Military Liaison Mission.” The Veterans of Foreign Wars objected. “No mention is made of who killed him or why he was shot,” argued an editorial in the VFW Magazine. “This is reflective of how many Americans who preceded Nicholson in death during the Cold War are remembered.” American veterans have lobbied for the creation of a Cold War medal, so that the Cold War would be memorialized as a wartime, but the bill has not been enacted. (credit for photo of Nicholson)
Arthur Nicholson’s body came to rest in a shifting terrain. Even as he bled to death in a field in East Germany, the historical category of his military service—the Cold War—was beginning to collapse. The nature of this death and its consequences (was it a murder, as Vice President George Bush claimed? or was he a soldier killed in battle?) depended on whether it fit into a period that we call wartime. He was a liminal figure in an ambiguous era, and his death seemed to trigger a need to stabilize the categories.
The ambiguities of the Cold War era, so much a part of its experience, get lost when it is simply assumed to be a “wartime” in a way that allows for a comparison with other American wartimes.

Opportunity for constitutional reform in Jamaica

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

At her swearing-in ceremony as Jamaica’s seventh Prime Minister a few weeks ago, Portia Simpson Miller (right) announced her government’s intention to begin the process of removing all ties with the British monarchy to make Jamaica an independent republic. (Prior IntLawGrrls post)
A product of the British-drafted Constitution handed down upon attaining independence in 1962, fifty years later the nominal head of state in Jamaica remains Elizabeth II, the Queen of England. Consequently, making good on this intention will require a Constitutional amendment. That, in turn, presents an opportunity for broader constitutional reform, which has been pending since the 1970s. (photo credit)
The British-drafted Constitution contains several provisions whose relevance to an independent Jamaica has long been questioned. Indeed, the very process by which the current Constitution was drafted highlights the need for a new Constitution, one that has evolved out of a period of consultation in which all Jamaicans have had an opportunity to participate. The following discussion highlights three particular areas, relating to the republic, the judiciary, and citizenship, that merit reform.

Establishing Jamaica as an Independent Republic
Executive authority of Jamaica is currently vested in Her Majesty the Queen (left), pursuant to Article 68 of the Constitution of Jamaica, and it is exercised by her appointed representative, the Governor-General. (image credit) Among other functions, the formal assent of the Governor-General, who is the nominal head of Parliament, is required for Bills of Parliament to become law.
As a “specially entrenched provision,” its amendment requires:
► Support of two-thirds of all the members of each of the two Houses of Parliament in the special manner prescribed under Article 49; and
► Support of the majority of those voting in a national referendum held within a two- to six-month period after passage of the Bill to amend.
Control by the People's National Party, Simpson Miller’s ruling party of the Parliament, having secured exactly two-thirds of the Parliamentary seats, makes the first criterion reasonably attainable.
However, success in a referendum will most likely require extensive public education and mobilization. There has been no recent polls to capture the opinions of the Jamaican electorate on this matter, but a 2009 attempt by St. Vincent & the Grenadines, a Caribbean neighbor in a similar position, suggests success should not be taken for granted. Only 43.13% of Vincentians voted in support of the proposal to replace the constitutional monarchy with a republic.
The question of what would take its place is also a divisive issue – a strong executive similar to what exists in the United States, or a ceremonial President appointed by the ruling Party? The political stalemate created in Caribbean neighbors that have made this transition, most notably Trinidad and Tobago, has flagged the negative consequences of taking the wrong path on this issue.

Creating a Caribbean-based Court of Final Appeal
As with many of its Caribbean neighbors, Jamaica’s court of final appeal remains, under Article 110 of its Constitution, the British-based Privy Council.

Rwanda's women MPs on women in Parliament

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

An increasing number of women serve in parliaments across the world, and a growing body of research has studied female political representation. Within this research line, three points of focus can be distinguished:
► Study of female representation in a descriptive manner, with concentration on the number of women in Parliament;
► Exploration of substantive representation, preliminarily concerned with the effect female representation has on policy outcomes and political styles and cultures; and
► Consideration of symbolic representation.
This last research-focus suggests that female Members of Parliament (MPs) are role models for women in society, inspiring them to engage in political activity and discussion and serving to increase political trust.
Little research exists, however, on how female representatives themselves think about female political representation. And no study has empirically investigated female representatives' conceptions of female political representation. Yet, these perspectives and conceptions are important, because they may eventually indicate how female representatives behave.
My explorative case study, Conceptions of Female Political Representation: Perspectives of Rwandan Female Representatives, investigates the conceptions of female political representation held by female members of Parliament in Rwanda.
Rwanda has positioned itself on the international stage as having the most gender-equal Parliament in the world. In 2003, the country adopted a gender-sensitive constitution, including a guarantee that 30% of posts in all decision-making organs would be held by women. The Lower House of the Rwandan Parliament has 80 members, 53 of whom are directly elected by a proportional representation system. The additional seats are reserved for women (24), youngsters (2 seats), and disabled people (1 seat). (credit for February 2011 AFP photo of Rwanda's Parliament in session)
As a result of this rule, women hold at least 30% of the seats in the Lower House of the Parliament; a number that is added to by women elected through additional, openly contested seats. Women also hold at least 30% of the seats within the Senate, the Upper House of the Rwandan Parliament, as indicated by the constitution. (Prior IntLawGrrls posts here and here.)
My analyses, based on Q method exercises during interviews held with 14 female Rwandan members of the Lower and Upper Houses of Parliament, revealed three unique types of conceptions regarding female political representation. Specifically, female representatives focused on:
► (1) Symbolic and descriptive representation;
► (2) Symbolic representation and power; and
► (3) Substantive representation.
The first group treats the political representation of women mainly as a numbers game, and focuses on descriptive representation. Women in this first group also have a favorable attitude towards gender quota. As one female representative put it:

'If there would have been no quotas; we would not be here.'

'Nuff said

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

International law now reaches into almost every aspect of our day-to-day lives. The possibility that such legal commitments could be made by the President without the input, much less approval, of Congress or the public raises serious questions about the potential of these agreements to undermine democratic lawmaking writ large.

— Our colleagues, Yale Law Professor Oona A. Hathaway (near right) and Berkeley Law Professor Amy Kapczynski (far right), in an ASIL Insight that expresses concern respecting the Obama Administration's announced plan to conclude a new multilateral pact as a sole executive agreement, which means, as Oona and Amy explain, "that it will enter into effect upon the signature of the President or his representative, without being formally presented for approval to either house of Congress." The scope of that pact, the 2010 Anti-Counterfeiting Trade Agreement, is intellectual property; however, the Insight authors argue that if the sole executive agreement process is used successfully in this instance, it would establish a precedent applicable to "any area in which an international agreement may be concluded — which is to say, nearly any area of law."

Prospective Advice & Consent

(Many thanks to Diane Marie Amann and IntLawGrrls for inviting me to contribute this guest post!)

Under the current U.S. treaty-making process, treaties are first negotiated and signed by the executive branch, then sent to the Senate for advice and consent, and then ratified by the executive branch.
For important multilateral treaties, the Senate stage of this process can move slowly and sometimes endlessly. The oldest treaty in the Senate's queue of pending treaties arrived in 1949, and the backlog includes treaties supported by administrations from both parties, such as the Law of the Sea Treaty (prior IntLawGrrls posts). (credit for above left photo of Capitol's wing)
During an interview last year the previous the Legal Adviser of the U.S. Department of State, John Bellinger, described this backlog as weakening the credibility of current U.S. negotiators because

'our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate.'

Our negotiators, he suggested, were in a situation akin to “the boy who cried wolf.”
In an article forthcoming next year in the Yale Journal of International Law, I propose a new approach to treaty-making that would alleviate these problems – an approach that I call “prospective advice and consent.”
Briefly, I argue that under certain conditions, the Senate can and should give its advice and consent to treaties in advance of their final negotiation. Specifically, the Senate could give its advice and consent through the passage of a resolution that, by a two-thirds vote, authorizes the President to make a treaty or multiple treaties that conform to whatever conditions are set out in the resolution. Provided that the negotiated treaty or treaties ultimately conform to these conditions, the President could then ratify without further action by the Senate. This approach would both speed up the treaty-making process and strengthen U.S. credibility at the bargaining table, thus potentially allowing the United States to obtain more favorable treaty terms.
The article takes up two main questions: First, would prospective advice and consent be constitutional? Second, would it be workable and desirable? My answers are yes and yes, with some qualifications.


Constitutionality
The constitutional question centers on the Treaty Clause of Article II of the Constitution. I show that the text, historical context, and evolving practice of that clause leave the President and the Senate with the flexibility to determine the timing and specificity of the Senate’s advice and consent. The Treaty Clause simply gives the President the

'power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.'

Once we accept – as we currently do – that “advice and consent” can come at the same time, nothing in the text dictates when this must occur. Indeed, on several occasions President Washington received the Senate’s advice and consent to negotiate treaty amendments and then, following successful negotiations, ratified these amendments without returning again to the Senate.
I also see no constitutional problem in the Senate giving its advice and consent to negotiating objectives rather than to the specific text of a treaty, provided that the negotiating objectives satisfy the intelligible-principle test. As I show, the Senate did this several times in relation to a series of treaties extending the U.S.-Mexico Claims Commissions in the 1920s and 1930s. In any event, this is how Congress authorizes the ex ante congressional-executive agreements that are the bread-and-butter of U.S. international agreements.

Practicality
On the practical side, I argue that prospective advice and consent would work well for certain types of treaties. In this post, I’ll discuss one type: major multilateral treaties where U.S. negotiating power would otherwise be reduced because other negotiators doubt the President’s ability to deliver the Senate. (credit for below left photo of White House)
Why might the Senate be willing to give prospective advice and consent to such treaties?
For one thing, to the extent that the United States can negotiate better terms if it can credibly signal the Senate’s agreement, then the prospect of better terms might in turn make the Senate more willing to act. The Senate can set tough terms in a resolution of prospective advice and consent.
For another, this approach would give the Senate a long-desired formal role at the negotiations stage, thus potentially making the inter-branch relationship more collaborative and less adversarial.
In terms of timing, I argue prospective advice and consent would best come late in the negotiating process, when the overall contours of the treaty are in shape but important points of contestation remain.
A few caveats:
► First, I don’t think prospective advice and consent would always work. Sometimes the Senate would not give it or the President would be unable to succeed in negotiating a treaty along the Senate’s terms. Instead, I make the modest claim that prospective advice and consent might sometimes work where post-negotiation advice and consent would not be obtainable (or would take many years to achieve).
► Second, I recognize that the Senate may be leery of ceding final review of a treaty. In response, I argue that the Senate could condition its resolution of advice and consent in a way that would preserve some form of post-negotiation review.
► Third, I don’t think prospective advice and consent is desirable for all types of treaties. There is a broad scholarly debate over how U.S. treaty-making can and should be legitimately accomplished (e.g., through the Treaty Clause, congressional-executive agreements, or executive agreements). I don’t think there’s a single answer to this question, and my article does not offer prospective advice and consent as a sole solution. Rather, I argue that it is a legitimate option that would work well in some circumstances.
Comments on this work-in-progress would be most welcome!

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.

Law, not fear, should guide detention

(Delighted to welcome back alumna Laurie Blank, who contributes this guest post)

Hearings have begun on proposed House and Senate legislation designed to create a comprehensive framework for the detention of individuals captured in the course of U.S. counterterrorism operations against al Qaeda and other terrorist groups. Those who have decried the lack of a statutory framework for what appears to be the inevitable long-term detention of suspected terrorists will likely welcome the proposed legislation as the long-awaited antidote to the ad hoc process that has developed over the past nine-and-a-half years.
As I argue in a recent op-ed in the Atlanta Journal Constitution, entitled "Build Detainee Policy on Sound Law," however, mere legislation itself is not the answer.
Legislation based on the fundamental moral and legal principles that guide our country would be a giant step forward – for fair and effective counterterrorism that balances national security and individual rights. But neither the Detainee Security Act (House, proposed by Representative McKeon) nor the Military Detainee Procedures Improvement Act (Senate, proposed by Senators McCain, Graham, Lieberman and others) fits the bill.
These proposed bills are based primarily on fear. On the fear that civilian courts cannot handle terrorism cases and on the fear that courts will not defer completely to the Executive’s claims of national security when faced with grave violations of individual rights.
The first fear is unfounded.
Since September 11th, over two hundred suspected terrorists have been prosecuted in federal courts with a conviction rate over 91%. We have hundreds of convicted foreign terrorists in prison in the U.S. right now. In contrast, fewer than five have been tried before the military commissions and most of those have already been released. The military commissions have seen significant improvement from their first iteration, but still remain barely tested both in substance and numbers of prosecutions.
These numbers demonstrate that completely foreclosing all trials in civilian courts and all transfers of detainees to the United States is not grounded in careful policy analysis. It seems to be based instead on the fear of those who are suspected – not proven – of trying to kill Americans, and a reactive desire to therefore deny them rights. The worst serial murders in U.S. history got full and fair trials. What is it about the word “terrorist” that makes us forget where we come from?
But it is the second fear that should catch the breath of every American.
The proposed bills simply legislate the courts out of the picture altogether. The annual periodic review process created to assess the continued detainability of detainees at Guantánamo (or future detainees) has no appeal process. This is important enough to repeat – no appeal process. There is no doubt that an annual review is better than long-term detention with no review process at all. This incremental improvement is insignificant, however, when the review board is not accountable in any way to a court or any other method of independent judicial review.
The Senate bill actually goes one step further still. In a total bow to Executive authority, the legislation states that the review panel’s finding regarding a detainee’s continued detention is simply a recommendation and does not bind the President. This is the ultimate dagger in the heart of separation of powers and checks and balances – a Congressional license of complete Executive authority and no courts to say otherwise.
The Geneva Conventions do not, to be sure, mandate judicial review of all detention determinations, either for prisoners of war under Article 5 of the Third Geneva Convention or under Article 43 of the Fourth Geneva Convention. Both require necessary guarantees of independence and impartiality, not a particular type of forum, judicial or administrative or other. Beyond the fact that the proposed legislation raises serious questions about whether the review panels can meet this test, the lack of judicial involvement in the long-term detention review process poses a much greater problem. As I discussed in my recent article, on which I previously posted, to call the indefinite detention at Guantánamo – both ongoing and future – detention “under the laws of war”” is a significant stretch of the traditional concept of law of war detention. When we do not know how long this conflict will last or the parameters of the battlefield, when detention effectively serves a punitive purpose rather than a protective purpose, judicial engagement in the process is critical to ensuring protection of individual rights.
The only reason to keep the courts out, as the proposed legislation seeks to do, is the fear that the courts will not approve of the process, either in individual cases or overall. The fear that courts might actually inject individual rights into the equation, upsetting the current complete dominance of national security interests over any other interest, no matter how fundamental.
We have learned the lesson of an unchecked executive before – with the suspension of habeas corpus during the Civil War and the internment of Japanese-Americans during World War II – and in both cases it was the courts that set us back on course and restored the balance between national security and individual rights.
As detailed in IntLawGrrls' many posts on Guantánamo, when detention there threatened to become truly a legal black hole in the first years after September 11th, the Supreme Court repeatedly held that detainees at Guantánamo have a right to legal representation and to habeas corpus – in essence, a right to exist in a legal framework. Let’s give our courts a direct role in that legal framework – detention without trial raises extraordinary challenges to American values; independent and robust judicial review throughout the process can help to mitigate those challenges and the risk to fundamental principles.
Supporters of indefinite detention – and likely of the proposed bills in the House and Senate – staunchly defend it as “detention under the laws of war.” If the detention is founded on fundamental legal principles signed and ratified by every nation around the world, then why keep the courts out of the business of reviewing and assessing the lawfulness of such detention?
Legislating based on panic is neither moral nor effective. America needs a counterterrorism strategy – including detention of suspected terrorists where appropriate – that is based on sound legal principles and paradigms, not just on the fear of a future attack.

"Judicial restraint" chez le Conseil

Today the Conseil constitutionnel rejected a challenge to French law that prohibits same-sex marriage.
Plaintiffs identified only as Corinne C. et Sophie H. had contended that Articles 75 and 144 of the Code Civil (in English here) -- each of which designates that the couple to be married will be compsed of a man and a woman -- denied them rights and liberties guaranteed by the French Constitution.
Invoked was Article 6 of the 1789 Declaration of the Rights of Man and the Citizen (available here in the original French), which, in English translation, sets out the principle of equality:

Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.

The 6-man, 2-woman Conseil (prior posts here, here, and here) articulated as its basis for sustaining the ban on same-sex marriage a structural / separation-of-powers / judicial restraint argument. It's an argument that American constitutionalists will find rather familiar.
Pivotal was ¶9 of the 11-paragraph judgment styled Mme Corinne C. et autre [Interdiction du mariage entre personnes de même sexe]. Per loose translation by this 'Grrl, ¶9 repeated the gist of Article 6 quoted above, then continued with additional considerations:

► The principle of equality is not contravened by legislation that regulates different situations in different fashions, nor by certain inequalities adopted in the general interest, provided that the resulting difference in treatment bears a direct relationship to the goal underlying the legislation;
► In maintaining the principle according to which marriage is the union of a man and a woman, the legislature, exercising power granted by Article 34 of the Constitution, has deemed that the difference of situation between same-sex and opposite-sex couples can justify different family law rules;
► It is not for the Conseil constitutionnel to substitute its judgment for that of the legislator respecting the nature of this difference of situation;
► For these reasons, the complaint is dismissed.

With that, it would seem, French marriage-equality advocates must move chez le Parlement.

Questions constitutionnelles

Imagine if ex-Presidents were automatic members of the U.S. Supreme Court.
If, that is:
► John Adams had been on the Court that decided Marbury v. Madison, or
► George W. Bush were sitting now, while the Court continues to resolve cases involving post-9/11 policies?
Even ad hoc recusal might seem insufficient to relieve the Court of an unwelcome appearance of potential partiality.
Yet that is the situation in France.

As of right, former Presidents -- today, Valéry Giscard D'Estaing and Jacques Chirac -- serve on the Conseil constitutionnel. Serving along with them are 2 women and 7 additional men, each of whom owes nomination, to a 9-year term, to France's President or to a president of a house of parliament.
Le Monde's just raised questions about that arrangement, suggesting that it may be "obsolete." The Paris-based newspaper also is questioning the absence of any requirement that Conseil members satisfy some standard of judicial competence.
A couple developments have prompted these new questions about the 52-year-old institution:
►1 ex officio member, ex-Président Chirac, remains dogged by a range of legal problems (and see here), some of which were present even during his executive tenure.
► The Conseil is a "constitutional court" now more than ever. As IntLawGrrl Naomi Norberg then posted, it just acquired a judicial review power approaching that which its U.S. counterpart claimed in Marbury: consideration of a citizen's after-the-fact claim of constitutional violation. Since the change took effect in March, the Conseil's constitutional docket has mushroomed. Among the 1st uses of its new power, as Naomi also posted, was a September decision invalidating reforms pushed by the current Président, Nicolas Sarkozy, and enacted, of course, by the parliament.
Time will tell if Le Monde's questions gain traction.

On February 2

On this day in ...
... 1790 (220 years ago today), in the chamber at left tucked inside the Senate wing of the Capitol in Washington, D.C., the U.S. Supreme Court convened for the 1st time. (photo credit) On the bench were 1 Chief Justice of the United States, John Jay, and 5 Associate Justices of the Court. This website gives an apt summary of this moment in U.S. history:

At its creation, the judicial branch was by far the weakest and most timid of all three government branches, holding back from strongly upholding and deciding controversial issues.

The story of how all that began to change with the arrival in 1801 of Chief Justice John Marshall has been told often -- most recently by our colleagues Cliff Sloan and David McKean, in The Great Decision (2009) (prior posts here and here).

(Prior February 2 posts are here and here.)

Khadr in the Canadian Supreme Court

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.
In the Canadian Supreme Court's decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.
The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of 'nudging' judgment we have seen in both the US and the UK superior courts in the 'War on Terrorism' (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and 'the people'? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.

(Cross posted at Human Rights in Ireland

Post-hoc constitutional review à la française

Post-hoc constitutional review is finally coming to France.

As many comparatists know, constitutional review of laws has hitherto been limited to abstract review before laws are adopted, and it has only been about 20 years since the right to request such review was enlarged such that a group of 60 or more senators or deputies (members of the national assembly) may make such a request. Well, yesterday Parliament approved one of aspect of the constitutional revisions proposed by the Sarkozy government in July 2008: the right of citizens to petition the Conseil constitutionnel or Constitutional Council (above right) -- albeit indirectly -- for post-hoc review of a law they feel violates their constitutional rights.

Except in felony trials before the cour d'assises, citizens in the course of first-instance or appellate proceedings may claim a law already implemented violates her constitutional rights. If to he lower-court judget deems the complaint founded, she forwards the request for review either the Cour de cassation, the supreme court for civil actions, or the of civil jurisdiction, or to the Conseil d'État, the supreme administrative court. That court then decides whether or not to forward the complaint to the Conseil constitutionnel (Game of telephone, anyone?)

The government's original proposal included a time limit for all this forwarding, after which the citizen could petition the Conseil constitutionnel directly if the relevant supreme court hadn't responded. But fears of overloading the Conseil constitutionnel led to adopting the law without any such limit.

Defended by some as not being an "Americanization" of French law (major fear here in France) because other European states allow post-hoc review and because there will be both pre- and post-hoc review, the new law may be implemented as early as next spring. There's no telling, however, when it might actually lead to a Conseil constitutionnel ruling on a post-hoc challenge.

On November 20

On this day in ...
... 1969 (40 years ago today), the Supreme Court of Canada issued its 6-3 decision in The Queen v. Drybones, a landmark in the law relating to the rights of native peoples and in the constitutional jurisprudence of Canada. The judgment arose out of a challenge to the 1967 arrest in Yellowknife, Northwest Territories (right), of Joseph Drybones, and of his subsequent conviction under a statute that forbade Indians from being intoxicated off of a reserve. (map credit) The Supreme Court invalidated the statute as unconstitutional -- a result predicated on its 1st-ever (and apparently its only) holding that its had the power to strike federal legislation offensive to the 1960 Canadian Bill of Rights. Canada's legislature consequently repealed the offending statute.

(Prior November 20 posts are here and here.)

The better to implement U.S. obligations

(Thanks to IntLawGrrls for this opportunity to contribute this guest post)

Increasingly, the proper implementation of the United States’ international obligations in domestic law has presented difficult challenges in the structural context of the U.S. legal system. Challenges are evident at multiple levels of that structure; that is, among the branches of the federal government and between the states and the federal government.

In my recent article, The U.S. Supreme Court Misses the Mark: Towards Better Implementation of the United States’ International Obligations (2008), I use the efforts of the White House (below right) to implement the judgment of The Hague-based International Court of Justice (courtroom above), in the Case Concerning Avena and Other Mexican Nationals (2004), to illustrate some of the problems presented by this issue.

International law scholars, not to mention IntLawGrrls readers of these prior posts, will remember the backstory:

In Avena, the ICJ found that that the United States had breached its obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, for the reason that authorities within the United States had not informed certain arrestees, Mexican nationals, of their treaty-based rights to consular notification. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States’ own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case.

In the domestic implementation stage of that decision, a 2005 memorandum by President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals’ judgments in state criminal proceedings. The President’s claim to such authority was troubling, because it appeared to violate structural principles of separation of powers and federalism. Ultimately, the U.S. Supreme Court (below left) rejected the President’s claim to such unilateral authority in Medellín v. Texas (2008), in a decision that leaves unanswered many questions regarding the proper implementation of the United States, international obligations.

My article analyzes the strengths and weaknesses of arguments that were made in the Medellín litigation regarding the proper way to implement the ICJ judgment consistent with the United States' constitutional structure. It then places the litigation in the larger context of the debate regarding the implementation of the United States’ international obligations, examining: from a separation-of-powers perspective, the proper role of each branch of the federal government; and from a federalism perspective, the interplay between the state and federal governments. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future:

► 1st, the U.S. Supreme Court should pay more than lip service to its own statement, at footnote 9 of Chief Justice John G. Roberts' opinion for the Court, that ICJ decisions are entitled to “respectful consideration.” The article describes how a true respectful dialogue between the two courts might proceed.

► 2d, with respect to the political branches, when ratifying a treaty the Senate (left) and the President should provide clearer directions as to how the treaty ought to be implemented, and whether and what types of private claims will be allowable under the treaty.

► 3d, the federal and state governments should establish a better consultation process, particularly for treaties that affect areas of traditional state regulation.

Through these methods, it is hoped that treaties will be implemented more effectively in U.S. law, and that better relations will result, both externally with the United States’ treaty partners and internally among the various branches and levels of government.

New: Journal of Human Rights Practice

Thanks to our colleague William Schabas at PhD Studies in Human Rights blog, I've discovered the new Journal of Human Rights Practice. The introductory issue is free, and it looks like there's plenty of good reading to be done. I immediately spotted an article by Israeli lawyer Michael Sfard to add to Fiona de Londras' & Fergal Davis' inquiry into how to effectively check the executive during times of terrorism, though Sfard's article deals more broadly with the costs of human rights litigation in domestic courts. The abstract reads:

Many of the legal campaigns against governmental practices and policies in large-scale human-rights abusing regimes are waged ‘internally’, through the regime's own institutions. Such litigations raise serious dilemmas for human rights lawyers and for human rights organizations. This essay is an attempt to dig out the implications of these internal legal struggles, whatever their effectiveness, for the project of bringing an end to the human rights abusing regime. The essay analyzes 35 years of ongoing, occupation-related human rights litigation in the Israeli court as a generic example of a massive ‘internal’ legal opposition. The author of this essay, an Israeli lawyer, involved in such litigations, reaches a painful conclusion: although internal legal action might ease human sufferings in individual cases, it nevertheless potentially empowers the regime and contributes to its sustainability.

Also in the introductory issue is an article by IntLawGrrl's own Stephanie Farrior on the challenges and opportunities of human rights advocacy on gender issues. Here's the abstract:

Recent years have seen notable progress on issues of gender and human rights in standard-setting and to some extent application of those standards through international and domestic legislation and jurisprudence, and in institutional programming and development. Some international and regional human rights bodies now go beyond just including ‘women’ in a list of ‘vulnerable’ groups, and have begun to incorporate women's experiences and perspectives into recommendations for structural changes needed to bring about full enjoyment of human rights by women and girls. In addition, recent years have seen the human rights of lesbian, gay, bisexual, transgender, and intersex people being taken up beyond the first human rights bodies that addressed them, and developments have taken place in standard-setting. Despite this progress, many challenges remain. Violence against women continues at a staggering rate. Gender-based discrimination persists in the workplace, housing, education, disaster relief, health care, and countless other areas. Access to justice continues to be hindered by a range of obstacles. Religion, tradition, and culture continue to be used as a shield for violating women's rights. Same-sex conduct is still criminalized in scores of countries, and it carries the death penalty in seven states. The traditional human rights law paradigm, with its focus on the state, may be obsolete in dealing with human rights abuses by such diverse non-state actors as powerful militias and global corporations. This article highlights just a few opportunities and challenges to come for international human rights advocacy on gender issues.

Bonne lecture (good reading)!

Effective Oversight of Counter-Terrorism

We all, when we think about repressive state action done in the name of national security, wonder about how such activity can be successfully restrained. There are, of course, a number of divergent views on this. For some resisting such repressive action is not a desirable course of action; we should simply let the Executive branch of government ‘get on with’ countering the threat (especially terrorist threats) and remember that such activity is the job of the Executive which has particular expertise to allow it to do this job successfully. In a recent paper entitled “Controlling the Executive in Times of Terrorism: Competing Perspectives on Effective Oversight” myself and a colleague and friend, Dr. Fergal Davis (left) of Lancaster University, reject this view for well-rehearsed reasons around excessively repressive and rights-restricting activity that executive action is prone to. There, however, our agreement ends and we both express—as the title suggests—competing perspectives on appropriate oversight.

For Fergal the extra-constitutionalist thesis is very attractive. In his view popular oversight mechanisms (parliament and the people) are to be trusted. While he acknowledges that parliamentary or legislative oversight has not always been forthcoming or effective, Fergal posits an interesting and to my mind very innovative argument about the capacity for popular oversight by ‘the people’ once they have become alive to their constitutional obligation to engage. One of the main bases for Fergal’s argument that we ought to trust judges or courts is, therefore, that relying on courts allows popular mechanisms including the people to abrogate their responsibility for oversight.My perspective, on the other hand, is that popular oversight mechanisms not only fail to work but can not be expected to work. They are, in fact, fundamentally structured in a way that prevents effective oversight of national security activity (especially where party political systems dominate parliamentary structures) and, in any case, genuine fear, trauma and panic together with the well-trodden path of identifying the terrorist as ‘the other’ makes any kind of rights-based oversight unpopular and politically dangerous for the vast majority of political actors.

I argue that we should trust judges because courts, simply, are more steeped in the pillars of liberal constitutionalism and liberal legalism than are the political branches and, in recent years at least, courts are pushing back against repressive executive and/or legislative action done in the name of national security.Which of us is right (if either of us is) is not something that we try to decide on in the paper. Rather, the paper is focused on trying to move the debate away from so-called ‘institutional competences’ (i.e. identifying what is or is not the ‘proper job’ of different state institutions) and rather towards effectiveness. We define effective oversight by reference to the idea of a balanced and proportionate approach to counter-terrorism. One that ensures that the state can act to repress a threat but that such action must be objectively justified, proportionate and—to the extent possible—compliant with the requirements of individual rights (both domestically and internationally).

The paper forms part of the UCD Working Paper Series in Law, Criminology and Socio-Legal Studies, a new initiative from the UCD School of Law. We welcome any comments on its content.

On January 18

On this day in ...
... 1930, Maria de Lourdes Pintasilgo (left), a "pioneer feminist," was born in Abrantes, in Portugal's Tagus Valley. Having "she opted for a 'man's subject' so as to demonstrate the abilities of women," in 1953 she earned an engineering degree in industrial chemistry. She was active in Catholic women's political groups beginning in her university days, and served as the 1st woman on an advisory group to the country's long-in-power dictatorship. But after that dictatorship ended in 1974, Pintasilgo served in the new government, 1st as Minister for Social Affairs, then as UNESCO minister, and, in 1979, as the 1st woman Prime Minister of Portugal -- and the 2d woman to hold such a post anywhere in Europe. Her later bid for the presidency having failed, she served as a Member of the European Parliament for 2 years in the late 1980s. Pintasilgo, who died in Lisbon in 2004, once said of her male colleagues:

'You know, they never forgive me for having dared to enter their world.'

... 1689 (320 years ago today), Charles-Louis de Secondat, Baron de Montesquieu, known through history simply as "Montesquieu," was born at his family's chateau near Bordeaux, France. Following education and marriage he launched a career as "one of the great political philosophers of the Enlightenment." An enduring work is his 1751 treatise De L'Esprit des Lois (Spirit of the Laws) (right). In it Montesquieu articulated a theory of separation of powers that -- in an early instance of comparative constitutionalism -- inspired the framers of the U.S. Constitution and bedevils commentators on the powers of the U.S. President in this new millennium.