Op-eds on legal news by law professors and JURIST special guests...

Arizona Legalizes Racial Profiling

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says that Arizona's new immigration legislation - requiring law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers - demeans us all by effectively legalizing racial profiling...

The conservative “states’ rights” mantra sweeping our country has led to one of the most egregious wrongs in recent U.S. history. New legislation in Arizona requires law enforcement officers to stop everyone whom they have “reasonable suspicion” to believe is an undocumented immigrant and arrest them if they fail to produce their papers. What constitutes “reasonable suspicion”? When asked what an undocumented person looks like, Arizona Governor Jan Brewer, who signed SB 1070 into law last week, said, “I don’t know what an undocumented person looks like.” The bill does not prohibit police from relying on race or ethnicity in deciding who to stop. It is unlikely that officers will detain Irish or German immigrants to check their documents. This law unconstitutionally criminalizes “walking while brown” in Arizona.

Former Arizona attorney general Grant Woods explained to Brewer that SB 1070 would vest too much discretion in the state police and lead to racial profiling and expensive legal fees for the state. But the governor evidently succumbed to racist pressure as she faces a reelection campaign. Woods said, “[Brewer] really felt that the majority of Arizonans fall on the side of, ‘Let’s solve the problem and not worry about the Constitution.’” The polls Brewer apparently relied on, however, employed questionable methodology and were conducted before heavy media coverage of the controversial legislation. No Democrats and all but one Republican Arizona legislator voted for SB 1070.

Undocumented immigrants in Arizona now face six months in jail and a $500 fine for the first offense – misdemeanor trespass – and an additional $1,000 fine for the second offense, which becomes a felony.

By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders.

SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.

The bill also makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver impedes the normal flow of traffic, albeit briefly. How many New York taxi drivers impede the flow of traffic when they pick up fares? The law also criminalizes the solicitation of work by an undocumented immigrant in a public place, who gestures or nods to a would-be employer passing by. This part of the legislation is also unconstitutional as courts have held that the solicitation of work is protected speech under the First Amendment.

The new law effectively compels Arizona police to make immigration enforcement their top priority. Indeed several law enforcement groups oppose SB 1070. The Law Enforcement Engagement Initiative, an organization of police officials who favor federal immigration reform, condemned the law, saying it would probably result in racial profiling and threaten public safety because undocumented people would hesitate to come forward and report crimes or cooperate with police for fear of being deported. The Arizona Association of Chiefs of Police also criticized the legislation, saying it will “negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner;” the group believes the immigration issue is best addressed at the federal level.

Many civil rights and faith-based organizations also oppose SB 1070.
The Mexican American Legal Defense & Educational Fund (MALDEF) called the law “tantamount to a declaration of secession.” The National Coalition of Latino Clergy and Christian Leaders Legal Defense Fund - which represents 30,000 evangelical churches nationwide - as well as MALDEF, the National Day Laborer Organizing Network (NDLON), and the American Civil Liberties Union (ACLU), are preparing federal lawsuits challenging the constitutionality of SB 1070.

Cardinal Roger M. Mahony of Los Angeles called the ability of officials to demand documents akin to “Nazism.” Former Arizona Senate majority leader Alfredo Gutierrez said, “This is the most oppressive piece of legislation since the Japanese internment camp act” during World War II. Representative Raul M. Grijalva (Dem.-AZ) called for a convention boycott of Arizona. The American Immigration Lawyers Association (AILA) complied. AILA is moving its fall 2010 conference, scheduled for Arizona, to another state.

Even though SB 1070 will not take effect for at least 90 days, undocumented immigrants in Arizona are terrorized by the new law. A man in Mesa, Arizona looked around nervously as he stood on a street corner waiting for work. “We shop in their stores, we clean their yards, but they want us out and the police will be on us,” Eric Ramirez told the New York Times.

Ironically, expelling unauthorized immigrants from Arizona would be costly. The Perryman Group calculated that Arizona would lose $26.4 billion in economic activity, $11.7 billion in gross state product, and approximately 140,324 jobs if all undocumented people were removed from the state.

“This bill does nothing to address human smuggling, the drug cartels, the arms smuggling,” according to Democratic Senator Rebecca Rios.

“And, yes, I believe it will create somewhat of a police state,” she added. “Police in Arizona already treat migrants worse than animals,” said Francisco Loureiro, an immigration activist who runs a shelter in Nogales, Mexico. “There is already a hunt for migrants, and now it will be open season under the cover of a law.”

SB 1070 is the latest, albeit one of the worst, racist attacks on undocumented immigrants. The federal program called 287(g) allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities. But a report released earlier this month by the Department of Homeland Security Office of Inspector General found a lack of oversight and training without adequate safeguards against racial profiling.

We can expect SB 1070 to be replicated around the country as the ugly wave of immigrant-bashing continues. Lawmakers from four other states have sought advice from Michael Hethmon, general counsel for the Immigration Reform Law Institute, who helped draft the Arizona law.

“SB 1070 is tearing our state into two,” said Phoenix Mayor Phil Gordon, who called the bill “bitter, small-minded and full of hate.”

He thinks “it humiliates us in the eyes of America and threatens our economic recovery.” More than 50,000 people signed petitions opposing SB 1070 and 2,500 students from high schools across Phoenix walked out of school and marched to the state Capitol to protest the bill before it passed. On Sunday, about 3,500 people gathered at the Capitol, chanting, “Yes we can,” “We have rights,” and “We are human.”

President Obama criticized SB 1070 as “misguided,” saying it will “undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” He called on Congress to enact federal immigration reform.

But Isabel Garcia, co-chair of the Coalition of Human Rights in Tucson, told Democracy Now! that there have been more deportations under the Obama administration than in any other administration. “This administration continues to follow the flawed concept that migration is somehow a law enforcement or national security issue,” she noted.

“And it is not. It is an economic, social, political phenomenon.” She mentioned that NAFTA has displaced millions of workers in Mexico who flood into the United States.

Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, there is an increasingly virulent strain of racism that targets non-citizens. Republican lawmakers are joining together to oppose federal immigration reform, opting instead for a “states rights” approach where each state is free to enact its own racist law.

Let us join the voices of compassion and oppose the mean-spirited actions that aim to scapegoat immigrants. Laws like SB 1070 demean us all.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and immediate past president of the National Lawyers Guild. See

April 27, 2010

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The Iraqi High Court's Understated Rise to Legitimacy

JURIST Contributing Editor Haider Ala Hamoudi of the University of Pittsburgh School of Law says that a look at recent decisions by Iraq's Federal Supreme Court illustrates the court's growing authority as an independent and legitimate voice in matters of constitutional interpretation....

There has been much attention recently devoted to the Iraqi elections and the government that will result from them. Unfortunately, the elections have detracted from a more interesting salutary legal development that has made the entire political process run much more smoothly. This is the growing independence of the Federal Supreme Court and its ability to solve what would be rather intractable problems in a manner that has been broadly accepted as legitimate.

Any number of cases come to mind, but perhaps the two which stand out most prominently are the Court’s recent decision, No. 25 of 2010, as well as an earlier decision issued in December, No. 76 of 2009. The latest decision issued by the Court, concerning Article 76 of the Iraqi Constitution, was probably the more important. While Rod Nordland of the New York Times reported recently that until the Court’s ruling, the meaning of Article 76 was not contested, in fact almost the reverse was true. The provision had been deeply and seriously debated in legal and political circles for months. The provision requires the President to choose a prime minister-designate from the “representative bloc with the highest number,” who would have first opportunity to form a government. The phrase, however, is hardly clear in that it might refer to an election list—in which case the list that had done the best in the elections would have first opportunity—and it might refer to a post election coalition. Ironically, throughout 2009 it was the Sunni coalitions—and most pointedly the Vice Chair of the Legal Committee, Selim Al-Jibouri—who had advanced with some passion the latter interpretation, and it was Maliki’s men, Ali Allaq and Abbas Bayati, who had insisted that the phrase had to mean the winning pre-election list. The reasons they held to these positions seemed rather clear from considerations of self interest—everyone assumed until rather early in 2010 that Maliki was most likely to win the plurality of seats in the election. After the election, which a Sunni coalition had won, and in which Maliki came a close second, the positions of the two groups on the question of Article 76 were precisely reversed, precisely in keeping with their self interest.

For those of us following Iraqi politics, this matter of Article 76 was of serious concern because of the rather fierce nature of the debates concerning its interpretation for some time. Given that the politicians themselves had flipped on the matter, they clearly had no credibility or authority to impose a sensible interpretation of the Article. It seemed as if the matter has to be resolved by the Federal Supreme Court, but that even if it did make a ruling there was a real risk the Court itself would be maligned by one side or the other. Fortunately, the Court ruled and the criticisms were muted. The Court, in a tersely worded one-page opinion, indicated that as the term “bloc” does not necessarily seem to reference any pre-electoral coalition, and as the sequence of events pursuant to which the government is formed is careful and detailed, the natural conclusion is that the bloc did not have to be a pre-election coalition. As contested as the continuing political wrangling has become, this particular decision, of potentially enormous consequence, has been accepted by the major parties. The Court had thus used the law to defuse a potentially violent debate.

The second important decision came last year just as the Iraqi Council of Representatives was getting ready to approve a resolution concerning the interpretation of an Amended Electoral Law, as demanded by Vice President Hashimi if he was not to veto the law. Some parliamentarians, however, argued that the ten-day deadline to veto the law had already passed and that Hashimi’s veto threat was therefore empty. Again, the matter was referred to the Federal Supreme Court for clarification. The narrow legal issue was whether Article 138 of the Constitution, which required a veto within ten days, included only business days, or whether all calendar days were included. Analogizing from similar provisions in the Civil Procedure Code, the Court concluded that in fact the days did not include any holidays, but that if the last day of the ten-day period fell on a non-working day, then the period extended until the next working day. Applying this rule, the Court ruled that the veto would not expire until Sunday, December 6. Again, the decision was followed without objection from the legislature, which did in the end issue a resolution that avoided a veto before the deadline.

To be clear, Iraq’s Federal Supreme Court is hardly able to defuse all political crises within Iraq that have a legal component, and if it were to attempt to do so, its credibility could be damaged. This may well be why the Court has wisely avoided attempting to deal with the thorny constitutional issues concerning ownership and management of oil and gas, or the fate of Kirkuk. But this limitation of judicial authority in the realm of the political is true of all judicial institutions, including our own Supreme Court, which—when it has entered into highly charged political debates, whether those concern the election of a President in this century, or the institution of slavery in an earlier one—seems to have lost some credibility in the process.

The remarkable fact is not therefore the limitations of the Iraqi High Court, but rather its rising authority as an independent and legitimate voice in matters of constitutional interpretation. We can only hope that this encouraging trend will continue.

Haider Ala Hamoudi is a professor at the University of Pittsburgh School of Law. The American-born son of Iraqi parents, he has lived and worked in Iraq and has been a legal advisor to the Iraqi government, experiences he describes in his book, Howling in Mesopotamia (Beaufort Books). He has a blog on Islamic law at

April 23, 2010

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Is Health Care Reform Constitutional?

JURIST Guest Columnist Sallie Sanford of the University of Washington School of Law says that although challenges to the constitutionality of the Patient Protection and Affordable Care Act are valuable for inspiring dialogue within and outside the legal community, they are unlikely to succeed in the face of decades of Supreme Court case law....

The ink had barely dried on the president’s signature when the lawsuits commenced. Three lawsuits filed in federal court now challenge the constitutionality of key provisions in the new health care reform law.

If a court does reach the merits in these lawsuits, it will almost certainly uphold the constitutionality of the Patient Protection and Affordable Care Act. Under existing case law, Congress has appropriate authority under either its power to regulate interstate commerce or its power to tax and spend for the general welfare. To find otherwise would require a significant shift in Constitutional jurisprudence.

The Individual Mandate

The primary challenge in each of the lawsuits is to the “individual mandate” – the requirement in the new law that most citizens have health insurance or pay a tax penalty. There are several statutory exemptions, including for religious objections, for financial hardship, and if the least expensive plan would cost more than 8% of household income.

Unless an exemption applies, however, each citizen will be required to have health insurance, either through Medicare, Medicaid, an employer-sponsored plan, or individual purchase; premium and cost-sharing subsidies will be available for those with incomes below 400% of the federal poverty level. People who are required to have insurance and do not will be taxed, with the tax rate ratcheting up over time to reach $695 per person or 2.5% of household income, whichever is greater.

Commerce Clause and Tax and Spend Authority

Under our system of government, Congress may exercise only those powers that are specified by the Constitution or that are “necessary and proper” for exercising those express powers. Among the express powers is the regulation of interstate commerce.

In the 1942 case of Wickard v. Filburn, the US Supreme Court considered a challenge to the federal government’s authority to regulate, under a Depression-era price-stabilization law, wheat grown for a farmer’s own personal use. The court concluded that this wheat production, though not for sale, did impact interstate commerce because it reduced the amount the farmer would buy and, considering the activities of similar-minded farmers, would impact the total amount grown.

Following this decision, a variety of federal laws have been upheld as authorized under this power to regulate activities that “arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” In the Heart of Atlanta Motel case, for example, the Court held that a motel owner’s decision not to allow black people to rent rooms impacts interstate commerce and thus could be prohibited by the Civil Rights Act of 1964. Even the federal Partial-Birth Abortion Ban was grounded in Congress’ interstate commerce powers.

Health care constitutes a huge portion of our nation’s economy, currently constituting more than 17% of the GDP. Both health care and health insurance indisputably impact interstate commerce.

Two modern cases have, on a 5-4 basis, overturned federal laws as beyond the scope of the Commerce Clause. In the 1995 case of United States v. Lopez, the Court struck down a law mandating a gun-free zone around public schools because it was “a criminal statute that by its terms had nothing to do with ‘commerce’ or any sort of economic enterprise.” The court wrote that there must be a distinction between Congress’ authority and the general police powers retained by the states, between “what is truly national and what is truly local.” Utilizing a similar rationale, and also on a 5-4 basis, the Court’s 2000 decision in United States v. Morrison invalidated part of the Violence Against Women Act.

In 2005, however, a 6-3 Supreme Court decision, Gonzales v. Raich, once again affirmed an expansive view of the Commerce Clause. The Court held that the federal government has the power to supersede state law, and to prohibit marijuana cultivation, even if grown at home for personal medical use and not for sale.

Writing for the majority, Justice John Paul Stevens wrote that: “We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Congress could rationally conclude that medical marijuana might find its way into interstate commerce, and, as with Farmer Filburn’s wheat, that growing one’s own could impact the overall market, particularly considering the cumulative impact of numerous growers.

Justices Anthony Kennedy and Antonin Scalia formed part of the Raich majority. Justice Scalia’s concurrence explains that this case differed from Lopez and Morrison (in which both he and Kennedy had voted to limit Congress’ authority) and that Congress may in the appropriate circumstance regulate non-economic intrastate activity.

In his Raich concurrence, Justice Scalia maintains that “the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” Under the structure of the new health reform law, the requirement to have insurance is integral to Congress’ overall approach to regulating insurance practices and attempting to stabilize the insurance market.

The Inactivity Argument

The plaintiffs in the pending lawsuits argue, however, that the individual mandate is different because it attempts to regulate inactivity. By definition, they maintain, a person who declines to purchase health insurance is not engaging in commerce at all.

A gamble to remain uninsured does, however, impose economic costs in at least two ways. The first is when an uninsured person seeks medical treatment. Because of a federal emergency care law, state legal requirements, hospital mission obligation, and actions rooted in medical ethics, that care is sometimes mandated and is often provided. Particularly when the patient comes in through the emergency room, as is not infrequently the case, costs are substantial and often go unpaid, either because of a decision at the outset to provide “charity care” or because the patient does not pay the bill.

Findings in the new law estimate the costs of providing uncompensated care at $43 billion in 2008. While many of these costs are ultimately borne by federal, state, and local governments (in the form of subsidies to hospitals and clinics), a substantial amount is shifted to insured patients. Findings in the new law estimate that $1,000 of the cost of an employer-provided family insurance premium (out of an average of about $13,000) is attributable to uncompensated care.

The second way that being uninsured imposes economic costs is by shifting the insured risk pool. Among the approximately one in seven United States citizens who lack insurance, a significant percentage is young and healthy. By not participating in the insurance market, by gambling that they will not need expensive health care (or that if they do, someone else will pick up the tab), they skew insurance pools towards an older and sicker population, raising the premium costs. Thus, this sort of inactivity or non-participation does have an economic impact, and certainly a far more substantial economic impact than the growing of marijuana for personal, medical use.

The plaintiffs also argue that unlike with state requirements to have car insurance, one cannot avoid the requirement by declining the activity. One can avoid a state’s requirement to purchase car insurance by not driving. Unless an exemption applies, however, one cannot avoid the requirement to have health insurance, as it is attached simply to the condition of being a citizen.

There is no direct precedent for a federal law requiring purchase of a private product without the option to not engage in the triggering activity. Businesses can in theory avoid federal requirements to install (privately purchased) environmental or safety equipment by not engaging in the business. Those of us who did not want to buy a new television or sign up for cable service to maintain realistic access after the recent conversion could simply not watch television at home.

More to the point, though, the health reform law does offer a choice. Rather than purchasing health insurance (though an employer-sponsored plan or on the individual market) one can choose to pay the tax. The tax has been criticized by many, in fact, as being too low to act as an incentive. These critics raise the policy concern that some will choose to pay the tax until they get expensively sick or injured and then, based on other, inexorably linked provisions in the new law, insurance companies will be obligated to sell them a plan without pre-existing condition limits or cost adjustments.

The Supreme Court has long upheld the ability of the federal government to regulate behavior through taxation. In a 1937 case, the Court noted that “[e]very tax is in some measure regulatory. . . . But [it] is not any less a tax because it has a regulatory effect[.]” Congress’ taxation power cannot burden a fundamental right, but there is no fundamental right to be uninsured. Some have argued that if this is not really a behavior-encouraging and revenue-raising tax but more of a pure penalty, then there needs to be a separate source of authority, such as the power to regulate interstate commerce.

The Current Court

Even if that is true, the Supreme Court, as described above, has recently reaffirmed a broad interpretation of the commerce clause. The two most recent justices to join the court replaced two dissenters, and thus if they change the calculus it would be to add support to the view that the law is constitutional. Justice Scalia, however, who concurred in the judgment in Raich, has long advocated an “originalist” or more limited view of federal power. It is conceivable that he might find that the health care reform’s individual mandate goes beyond the reach of federal powers and into the state’s police power domain.

That potentially leaves Justice Kennedy as the swing vote. And, of course, the author of the Raich opinion has just announced that he will retire at the end of the current term. The loss of Justice Steven’s persuasive force might have an impact on the court’s analysis.

Medicaid Expansion and Insurance Exchanges

The Florida Attorney General’s lawsuit, which a dozen other attorneys general have joined, also contends that the new law encroaches on state sovereignty by creating state-based insurance exchanges and by expanding Medicaid eligibility. Both of these provisions, they argue, will impose on the states increased costs and expanded administrative burdens and, generally, will “commandeer” them into the service of the federal government.

These arguments have even less of a chance of success than do those related to the individual mandate. The states are not required to set up the exchanges. Under the terms of the law, if a state does not do so, the federal government will. To encourage states to use their regulatory and administrative powers to set up these exchanges, the law offers some funding.

Similarly, states are legally free to drop out of the Medicaid program and to forego the matching dollars that accompany it. Medicaid is a joint federal-state program in which the federal government sends financial support to state programs that, in compliance with federal guidelines, provide health care to low-income people. Wealthier states have a baseline 50/50 match, meaning that for every dollar they spend, the federal government contributes at least a dollar. The less well-off states have at least a 25/75 match.

It is true that, as a practical matter, states are heavily reliant on the matching Medicaid dollars to care for their poorest citizens and to support key safety-net health care providers. It is also true that Medicaid funding is a significant part of most states’ beleaguered budgets. The new law expands eligibility by opening the program up to all citizens and legal residents with incomes below 133% of the federal poverty level. This will have the effect of adding many adults to the program. Initially, the federal government will cover all of the costs of providing care to the newly eligible, though this coverage will ratchet down to 90% over a few years.

The Supreme Court has upheld similar conditional-spending arrangements as valid exercises of Congress’ tax and spend authority. In South Dakota v. Dole, for example, the Court upheld a federal law that withheld 5% of highway funds from any state that did not raise its legal drinking age to 21. The Court did recognize in Dole that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’" To date, the Court has not identified such a circumstance.

It is hard to reasonably argue that the new law’s Medicaid expansion inducement reaches the point of compulsion. Congress has changed Medicaid conditions numerous times over the years and, with this new eligibility expansion, the federal government will initially assume most of the costs of the newly eligible. The exchanges present even less of a case for compulsion as they do not yet exist, and the new law provides some administrative funds for their establishment.

Procedural Hurdles

The plaintiffs also face significant hurdles before a court would get to the merits of their claims. One hurdle is ripeness. The challenged provisions do not go into effect for several years. In general, a claim is not ripe for adjudication if it rests upon contingent future events that might not occur; an exception might be made for a purely legal challenge to a law, such as this one, that will require significant advance groundwork. However, with Republican calls to “repeal and replace,” it is not far-fetched to wonder if the challenged provisions will survive. Such was the fate of the Medicare Catastrophic Coverage Act, which, in the late 1980s, was repealed before it went into effect.

Another procedural hurdle is standing. In general, only those who are being, or imminently will be harmed by a law can challenge its constitutionality. The individual mandate, if it were in effect, would certainly harm some individuals. Its harm to the states is less clear, and it is on the states’ behalf that the plaintiffs in the Florida case have filed their complaint.

In a 2007 case, the Supreme Court did grant states standing to challenge the EPA’s inaction on greenhouse gas regulation, finding sufficient injury on the theory that the states were impacted by potential changes to their coastlines and to overall environmental wellbeing. Drawing on this 5-4 decision, perhaps the states could make a not-yet-articulated argument having to do with diverted state tax revenue and population wellbeing, but this seems a stretch. The separate complaint filed by the Virginia attorney general is based on that state’s recent enactment of a law purporting to nullify the individual mandate as to Virginia residents, and the defense of that law perhaps provides a toe-hold into standing. The Thomas More Law Center plaintiffs do include four individual citizens. And of course, if the other complaints survive the ripeness and other challenges, individuals might join as plaintiffs.

Nonetheless, based on decades of Supreme Court case law, the substantive challenges to the constitutionality of the Patient Protection and Affordable Care Act are unlikely to succeed. They are likely, though, to continue to inspire discussions within the legal community and within the general public about the role of government, the nature of health care, and the obligations of citizens. Perhaps that, in itself, is a valuable outcome.

Sallie Sanford is an Assistant Professor of Law at the University of Washington.

April 21, 2010

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Not Child's Play: Revisiting the Law of Child Soldiers

JURIST Special Guest Columnist Lt. Col. Chris Jenks (USA), Chief of the International Law Branch of the Office of the Judge Advocate General, says that the discussion on child soldiers in general and Omar Khadr in particular should be broadened to move past misperceptions of the applicable law and norms concerning detention and prosecution of child combatants....

In the fall of 2009, Attorney General Eric Holder announced that Canadian Omar Khadr would likely be tried by military commission for, among other offenses, the murder of U.S. Army Sergeant First Class Christopher Speer. Khadr is alleged to have thrown a grenade which killed Speer and wounded another U.S. Army soldier during a 2002 engagement in Afghanistan. Khadr also faces other charges which stem from his alleged participation in: al Qaeda “basic training,” land mine training, the conversion of land mines into improvised explosive devices, and the shooting and killing of two Afghan militia members.

Canada’s announcement that it will not seek Khadr’s repatriation means that not only is Khadr likely to face trial by military commission, he may well be the first to do so under the revised commissions the Obama administration employs.

Much of the attention on Khadr’s case has focused on his age – according to his defense counsel he was 15 years and 10 months at the time of his alleged offenses. Much of the attendant criticism which flows from Khadr’s age when detained, and the authority to hold him criminally responsible, is misdirected if not misplaced. Such critiques overlook well established international norms which provide not only for restricting Khadr’s liberty but also for holding him accountable for any crimes he may have committed. These norms are extant both in the lex specialis, the law of armed conflict (LOAC), and in more general international law writ large. The discussion about child soldiers could, and should, be broader.

Under the LOAC, the Fourth Geneva Convention on civilians discusses the detention of individuals who, like Khadr, don’t qualify as either members of a regular or irregular armed force and thus are not considered prisoners of war under the Third Geneva Convention. Additionally (and more specifically), regardless of whether you characterize the armed conflict in Afghanistan in 2002 as international (IAC) or non-international (NIAC) in nature, the Additional Protocols (AP) to the Geneva Convention clearly envision the detention of “children” who directly participate in hostilities. While the United States has not ratified either of the APs, and one can argue about the applicability of the various Geneva Conventions to the current conflicts, through Department of Defense Directive 2311.01E, the United States policy is to apply the law of war during all armed conflicts, regardless of how such conflicts are characterized. Perhaps more relevant to this discussion, the majority of the world has ratified the APs and detention of individuals like Khadr is consistent with those widely subscribed instruments.

Additional Protocol I, which deals with IAC, discusses the protection of children in art. 77. While art. 77 affords special protections, those protections apply to children under 15. Even then, the special protections do not preclude children, even those under 15, from being arrested, detained, or interned if they take a direct part in hostilities. Under AP I, persons who had not reached 18 years of age when they committed an offense related to armed conflict are not subject to the death penalty. The clear inference is that such individuals may be held criminally responsible for their actions and subject to punishment, just not capital punishment.

Additional Protocol II, which deals with NIAC, describes the care and aid children require in art. 4, and in slightly more detail than AP I. It does so first as applied to children who do not take a direct part in hostilities or who have ceased to take part in hostilities. It then qualifies that the special protections remain applicable to children under 15 who have taken a direct part of hostilities. Again though, the special protections do not include protection or immunity from internment or detention, and wouldn’t apply to Khadr anyway as he was not under 15.

Most of the provisions of the APs reflect current U.S. practice (see Michael Matheson, The US Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, Remarks before Session One of the Humanitarian Law Conference (Fall 1987), 2 AM. U. J. Int'l Law & Pol'y 419 (1987). But to the extent that the APs are considered anachronisms and not indicative of evolving norms against child soldiers, fair enough. Yet the normative evolution focuses on increasing the minimum age for direct participation in hostilities and for recruitment into armed groups--not on preventing prosecutions of those in violation of the norm. The detention provisions of the LOAC should not be viewed as an aberration or radical departure from how the world community otherwise views detention and prosecution of child offenders. They are not.

The international community has struggled to reach consensus on at what age children may be held criminally responsible. The Convention on the Rights of the Child (CRC) defines a child as anyone under 18 and while the CRC provides special protections to children, those protections don’t include immunity from prosecution and punishment (other than capital punishment or life imprisonment without possibility of release). The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) were also not able to agree on an age trigger for criminal responsibility, instead that decision is left to individuals States with the guidance that the age should not be set at too low a level and should reflect emotional, mental, and intellectual maturity. Under the Rome Statute, the International Criminal Court lacks jurisdiction over persons under the age of 18 while the Statute for the Special Court for Sierra Leone allowed for prosecution of children age 15 and older, although no such prosecutions occurred.

The era of the doli incapax rule, an irrebutable presumption that children may not be held criminally responsibly, is over. Even when it existed, it did not extend past the age of 14. This is borne out in international practice, for example in 1993 the United Kingdom found two 11-year-olds criminally responsible for kidnapping and murdering a two year old boy. In reviewing that decision, the European Court for Human Rights, in T and V v. UK, ruled that attributing criminal responsibility to a 10 year old did not in and of itself give rise to a violation of the European Convention on Human Rights and Fundamental Freedoms. The Court also noted that the age of ten cannot be said to be so young as to differ disproportionately from the age-limit followed by other European States.

While aspects of children and criminal responsibility are either unsettled or left to individual nations, at a minimum we should acknowledge that the LOAC provides authority to detain and prosecute individuals like Khadr. Moreover, in the broader sense, there isn’t a norm governing the age of criminal responsibility but if there was (or is), the prosecution of an individual two months shy of their 16th birthday for murder would fit safely within its ambit.

Chris Jenks is a Lieutenant Colonel and Judge Advocate in the United States Army. The opinions expressed above are exclusively those of the author, and not necessarily reflective of any agency of the United States government.

April 13, 2010

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The US-Israel Standoff over Settlements

JURIST Guest Columnist Victor Kattan of the Centre for International Studies and Diplomacy, School of Oriental and African Studies, University of London, says that morally, legally, and politically the Obama administration is on solid ground in its confrontation with the Israeli government over its refusal to stop constructing settlements in East Jerusalem....

US-Israel relations are reputedly at their lowest ebb in years. Last month, Vice-President Joe Biden visited Israel to bolster peace negotiations with the Palestinians. To shore up Israeli support, he told Prime Minister Netanyahu that the US had an ‘absolute, total, unvarnished commitment to Israel’s security’. He did not expect that on the very same day, Israel’s Interior Minister would announce that a decision had been made to construct 1,600 new housing units that would almost double the size of Ramat Shlomo, an ultra-Orthodox settlement in East Jerusalem. The expansion of the settlement, which is contrary to international law, killed off the proximity talks with President Abbas which were supposed to have begun in earnest that week. Biden reportedly left Israel embarrassed and angry. The rift was not healed when Netanyahu arrived in Washington later that month to speak at the American Israel Public Affairs Committee (AIPAC). The White House imposed a news blackout on the meeting between Netanyahu and Obama. There was no picture of the two men together and no press statement by the White House as is customary on such occasions.

The Obama administration is on solid ground in its confrontation with the Israeli government over its refusal to stop constructing settlements in East Jerusalem morally, legally, and politically. It has been long-standing US foreign policy to oppose Israel’s attempts to alter the facts on the ground by constructing settlements in the occupied territories in an attempt to alter its ethnic and demographic composition. Jerusalem is also home to the Holy Places which are of special significance to the three monotheistic religions. This is why various attempts were made in the past to internationalise the city, to diffuse religious and racial tensions, by having it administered by a third party. However, Israel has historically been opposed to plans to internationalise the city because it views Jerusalem as its ‘eternal and undivided capital’, although this has never been recognised by any other country, and for that reason they locate their embassies in Tel Aviv. Moreover, the eastern part of the city is considered occupied territory, which means it has a distinct and special status under international law. It is a cardinal rule of international humanitarian law that sovereignty does not pass to the occupying power which only has a right of temporary administration over the territory. No state has recognised Israel’s annexation of the eastern half of the city, where the Holy Places are located, and which has been condemned as ‘null and void’ by the UN Security Council.

Disputed or Occupied Territory?

Israel has employed a number of arguments, both legal and political, to justify its four decades long policy of constructing settlements in the occupied Palestinian territories. These arguments all relate to the legal status of the territory that was occupied by Israel in 1967. Under international law when territory is captured in an armed conflict, it is placed under belligerent occupation, regardless of whether the conflict which preceded it was lawful or not. One often comes across the argument that the territories are ‘disputed’ rather than ‘occupied’. Beyond the realm of propaganda, this argument is disingenuous since the Israeli government has in practice always treated the territories as occupied as has Israel’s Supreme Court in a number of rulings. This is why Israel uses military orders to channel Israeli legislation into the occupied territories for the benefit of the settlers, why the Supreme Court considers the norms of belligerent occupation in its assessment of government policy regarding ‘targeted killings’, its construction of the barrier, and the application of legislation from workers rights to human rights. The only issue that Israel contests is the applicability of the Fourth Geneva Convention of 1949. It disputes that the Convention applies in its entirety to the occupied territories, a view no one outside Israel accepts, and which does not affect the status of the territory as occupied. Israel has never contested the application of the Hague Regulations of 1907 concerning the Laws and Customs of War on Land which applies to occupied territory.

The Position under International Law

Article 49 (6) of the Fourth Geneva Convention provides that: ‘The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies’. The authoritative commentary of this convention prepared by the International Committee of the Red Cross states that this prohibition was adopted to prohibit the colonization of occupied territories. It does not distinguish between forcible and non-forcible population transfers and prohibits any and all population transfers from the occupying power to occupied territory. On 9 June 2004, the International Court of Justice ruled unanimously in an advisory opinion that the Fourth Geneva Convention was applicable to the occupied Palestinian territories and that Israeli settlements there are illegal. This included the opinion of Thomas Buergenthal, the US judge at the International Court and who, whilst exercising his discretion to refrain from hearing the case, concurred with the Court’s finding on the illegality of Israeli settlements.

It should be noted that the Israeli government was aware even before it began settling its population in the West Bank in the 1970s that its settlements policy would be illegal. Theodor Meron, a former judge at the International Criminal Tribunal for the former Yugoslavia, and presently Professor of Law at New York University’s School of Law, made this clear in a legal memorandum he wrote when he was the legal adviser to Israel’s Ministry of Foreign Affairs. ‘My conclusion,’ he advised the Israeli Government on 18 September 1967, ‘is that civilian settlement in the administered territories contravenes explicit provisions of the Fourth Geneva Convention’. An authoritative English translation of the declassified legal advice is currently available online at the website of the Sir Joseph Hotung Project in Law, Human Rights, and Peace Building in the Middle East at the School of Oriental and African Studies, University of London.

In 1978, Herbert J Hansell, the US State Department’s Legal Adviser concurred with Meron’s reasoning by reaching the same conclusion: Israeli civilian settlement activity in occupied territory is contrary to international law because it breaches Article 49 (6) of the Fourth Geneva Convention 1949. In addition to this legal advice there were a score of UN Security Council resolutions passed in the late 1970s and early 80s condemning Israeli settlement activity. When former President George H. W. Bush was Ambassador to the United Nations in 1971 he expressed his regret that Israel had failed to abide by its obligations to refrain from constructing settlements which he said were, and I quote, ‘contrary to the letter and spirit of the fourth Geneva Convention’. It has recently been reported that the US government may abstain from voting on any draft resolution presented to the Security Council condemning Israeli settlement activity should the disagreement with Israel over the settlements in Jerusalem remain unresolved.

The Missing Reversioner Thesis

In December 2009, Danny Ayalon, Israel’s Deputy Foreign Minister, published an article in The Wall Street Journal in which he claimed that the occupied territories are not occupied but rather ‘disputed’ because the Palestinians ‘had not attained recognised sovereignty before Israel’s conquest’. The argument that the Palestinian Arabs had not attained sovereignty after the Britain relinquished its mandate and before Israel’s conquest in 1948-9 is highly questionable. This is because upon the termination of the mandate sovereignty vested in the population of Palestine as of 15 May 1948 as a whole. The majority of Palestine’s inhabitants on that date viewed themselves as belonging to Palestine’s Arab community to whom sovereignty would vest. The demography of Palestine would vastly change after the war, but an unlawful conquest is no basis to deny them sovereignty to this day. Moreover, Ayalon’s argument is self-defeating because prior to Israel’s conquest of Palestine in 1948-9, no state had recognised Jewish sovereignty over Palestine. As regards the application of the Fourth Geneva Convention, Ayalon advanced the argument that Israel has better title to the West Bank because no one else had a stronger claim to sovereignty over it (apart from the Palestinian Arabs of course) after Britain relinquished its mandate over Palestine on 15 May. This argument has been referred to by legal scholars who have adopted it as ‘the missing reversioner thesis’. It was expounded in a number of legal articles published in Israel and the United States in the 1970s which included an article published by Meir Shamgar, who was then Israel’s Attorney-General. The ‘missing reversioner’ argument was expressly rejected by the ICJ in the Wall advisory opinion. The ICJ ruled that the Convention applies to any armed conflict between High Contracting Parties and that it was irrelevant whether or not territory occupied during that conflict was under their sovereignty. Judge Buergenthal expressly concurred with the opinion of the majority in his separate opinion on this point. This conclusion is also foreshadowed by the Meron opinion, which noted that the international community had rejected Israel’s claim that the territories were not occupied.

Eugene Rostow’s Argument

In 1979, Eugene Rostow, who served as Under Secretary of State for Political Affairs under President Lyndon B. Johnson and who was once Dean of Yale Law School. published a paper in the Yale Studies in World Public Order in which he invoked the history of the British Mandate of Palestine to support Israeli claims to sovereignty over the whole of the Holy Land including the West Bank and Gaza. He attacked the US State Department’s advice on the illegality of Israeli settlements and reached the rather strange opinion that, ‘Jewish rights of immigration and close settlement in the West Bank and Gaza Strip, established by the [British] Mandate, have never been qualified’.

The argument advanced by Rostow is at variance with British law and state practice in the mandatory era which I am familiar with as I wrote a 400-page book on it. This is because on 15 May 1948, the British Mandate was legally terminated by the British authorities in Palestine and Westminster. One cannot rely on an international instrument which no longer exists. Moreover, Jewish rights to settle in Palestine during the mandate were always subject to restrictions from immigration, to land usage, to the political rights of the indigenous Arab population. This was implicit from the terms of the mandate and from the safeguard clauses in the Balfour Declaration protecting the civil and religious rights of the non-Jewish community. Moreover, throughout the mandatory years the British government proposed several Partition Plans that envisaged the creation of an independent Arab state in Palestine. Thus the right of the Palestine Arabs to self-determination and to establish an independent state of their own in Palestine was explicitly recognised even during the mandate era. Continued Jewish settlement in the West Bank conflicts with the right of the Palestinians to self-determination which has since been recognised in numerous international instruments and resolutions. In its 2004 opinion the ICJ referred to the Palestinian people’s right of self-determination as an obligation erga omnes. It is therefore incumbent on the international community to see to it that all efforts are made to secure a democratic, independent, and viable Palestinian state living side by side in peace and security with Israel. This can only emerge once Israel relinquishes control over the occupied territories and ceases settlement activity.

Concluding Remarks

In 1947, the United Kingdom turned over the future destiny of Palestine to the United Nations which voted in favour of the Partition Plan that sought to create a Jewish state and an Arab state in Palestine. Jerusalem was to be placed under some form of international administration as a corpus separatum. Israel accepted that Plan, which is mentioned in its Declaration of Independence. It was also on the basis of Israel’s acceptance of that Plan that many states afforded it recognition in 1948-49. Thus they did not recognise Israeli claims to Jerusalem or to those areas which had been assigned to the Arab state in that Plan. The Arab states opposed the UN Plan because they thought that it was unfair to the Palestinian Arabs who in 1948 still formed a majority of the population and owned most of the land. After several Arab-Israeli wars, including the June 1967 War, when Israel occupied East Jerusalem, the West Bank, and the Gaza Strip, the Palestinians have come to accept that Israel is an accomplished fact. In 1993, Yasser Arafat recognised the state of Israel, in the hope that Israel might one day reciprocate and recognise the right of his people to an independent homeland as well. This has yet to happen. In 2002, the Arab League—comprised of 22 member states including Egypt and Jordan who have already made peace with Israel—offered full normality and diplomatic relations with Israel if it would withdraw from the territories it occupied in 1967, cease settlement activity, and allow the Palestinian to create an independent state. Israel spurned the offer. Instead the party political platform of the Likud that Netanyahu chairs is totally uncompromising. ‘The Government of Israel’, the Platform dictates, ‘flatly rejects the establishment of a Palestinian Arab state west of the Jordan river’. On the question of settlements, the Platform states that ‘the Likud will continue to strengthen and develop’ them, thus further diminishing the prospects for peace in the Middle East.

Victor Kattan is a Teaching Fellow at the Centre for International Studies and Diplomacy at the School of Oriental and African Studies, University of London. Victor is the author of From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 (London: Pluto Books 2009). You can read more about Victor here.

April 07, 2010

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Prosecuting Terror Suspects in Federal Court: The Right Choice

JURIST Guest Columnist Virginia Sloan, president and founder of the bipartisan Washington DC-based Constitution Project, says that US Attorney General Eric Holder should stand by his decision to try Guantanamo Bay detainees in traditional federal court, rather than in military commissions....

Last month, the Constitution Project, working with Human Rights First, brought more than a dozen signatories to Beyond Guantanamo: A Bipartisan Declaration to our nation’s capital to meet with members of Congress and their staffers to advocate for the trial of terrorism suspects in traditional federal court, rather than military commissions. Signatories also cautioned against using a system of indefinite detention to hold suspects without charge or trial. These efforts were particularly timely given recent debate on these issues and pending legislation that could force the administration to pursue prosecutions of terrorism suspects only in military commissions.

For far too long, the national debate around how and where to try suspected terrorists now held at Guantanamo has been incorrectly framed as a partisan dispute. It is simply wrong to believe that the national security debate has to pit Democrats against Republicans, and conservatives against progressives. Beyond Guantanamo is an example of policy experts from across the political spectrum who have come together to support federal court prosecutions for suspected terrorists and to oppose any policy of indefinite detention without charge.

The range of voices that Beyond Guantanamo represents is vast, with former members of Congress, diplomats, federal judges and prosecutors, high-level military and government officials, as well as national security and foreign policy experts, bar leaders, and family members of 9/11 victims having joined the Declaration. At the conclusion of the day’s events, we asked a few of our participants to summarize their thoughts about the full day of meetings and activities.

From Stephen Abraham, retired Lieutenant Colonel in the U.S. Army Intelligence Corps (Reserves):
The choice of trying terrorists in Article III courts or by military commissions is a false choice. This is not a choice between tested and untested forums. Rather, it is a choice between a system of justice that has endured as a light unto the nations for more than 200 years and a process created in haste, borne out of fear. Terrorists seek to weaken our faith in our nation and ultimately ourselves. Affirming our institutions, our laws, and our values is our greatest weapon. Each time we try a terrorist according to our laws, we have won a battle in the struggle against terrorism.
From Bruce Einhorn, former federal judge and former Special Prosecutor and Chief of Litigation at the U.S. Department of Justice’s Office of Special Investigations:
I came three thousand miles to urge our elected officials on Capitol Hill to end the unproductive and so far unconstitutional use of military commissions to try alleged terrorists at Guantanamo or wherever such suspects are found or held. For almost nine years, our government has attempted to employ military commissions without success. In case after case, the U.S. Supreme Court has found the Executive Branch rules and congressional legislation that authorized these commissions to be constitutionally defective. During that period, only three trials of alleged terrorist were actually held before military commissions. In contrast, during that same period, hundreds of such trials have been successfully completed by the federal district courts, and 97% of those prosecutions have resulted in guilty verdicts.

The district courts have a long history of presiding over alleged terrorist cases in a fair and efficient manner, with no violence or security glitches' interfering in the proceedings. Moreover, U.S. Justice Department prosecutors have extensive experience in prosecuting complex cases of terrorism, sabotage, violations of the laws of war, and criminal conspiracy. By contrast, most military prosecutors, while intelligent and industrious, lack the background to handle the unusually challenging and complicated issues associated with the prosecution of alleged Al Qaeda operatives and their terrorist allies.

It is time to stop offending our Constitution and stop wasting taxpayer money on a military commission system that has not worked. I again urge our senators and congresspersons to utilize the finest and most respected civilian court system in the world, which has functioned with minimal revisions and maximum fairness since its inception in 1789.
From Don Guter, retired Rear Admiral in the U.S. Navy:
These guys are not warriors. They are thugs and they deserve to be treated like any other common criminal, not as legitimate soldiers. Our federal civilian courts have a proven track record of delivering the swift and sure justice that Americans expect and deserve. Attorney General Holder made clear that federal courts are [the] best venue to prosecute these cases and the administration should not waiver in its determination to do so.
From Donna Marsh O’Connor, member of September 11th Families for Peaceful Tomorrows:
September 11th Families for Peaceful Tomorrow is proud to partner with the Constitution Project as it works on the Beyond Guantanamo campaign. Knowing that we are surrounded by thoughtful and knowledgeable Americans (distinguished constitutional attorneys, military figures, and leaders of our nation from both sides of the political aisle) makes those of us who lost loved ones and continue to trust in the American rule of law feel supported, validated and energized. In our common goals we believe we will prevail. We support the closure of Guantanamo Bay, the end of indefinite detention and torture and we will work to dignify through its use the United States Constitution and the good citizens of the United States.
From Richard Rossman, former U.S. Attorney for the Eastern District of Michigan and former Chief of Staff for the Criminal Division at the U.S. Department of Justice:
Our American values are based upon equal justice, not making up new rules whenever we are afraid. For over 200 hundred years, our Constitution and our form of justice have served our country quite well. We have, however, strayed from these concepts since 9/11.

We need to get back to our basics. Except for the battlefield combatant captured in a war zone, those persons who commit wrongs against the citizens of the United States should be brought to justice in our federal criminal courts. Guantanamo should be closed immediately and not just moved to Illinois. Those persons who are detained in Guantanamo and anywhere else the military is holding alleged terrorists should be charged with wrongdoing in Article III Courts or released. Until this happens, we will not truly be a nation of ‘Equal Justice Under Law.’
As recent headlines demonstrate, it is far from clear whether Attorney General Holder's decision last November to try five of the 9/11 suspects in federal courts will be overturned. Last month, however, the Constitution Project was proud to enable so many individuals with so much authority and expertise to make their voices heard in support of the Attorney General's original decision. We hope Congress and the White House will listen.

Virginia Sloan is the president and founder of the Constitution Project.

April 02, 2010

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Supervising Intelligence: A Checked and Balanced Approach to National Security

JURIST Guest Columnists Victor Hansen and Lawrence Friedman of New England Law | Boston say that Congress’s effort to gain greater oversight of certain intelligence actions through the Intelligence Authorization Acts for Fiscal Year 2010 is a clear example of a bipartisan effort to exercise the constitutional responsibilities that it shares with the executive branch for national security....

Congress has sought to enhance its capacity to oversee national intelligence operations through the Intelligence Authorization Acts for Fiscal Year 2010. Among other requirements, the House bill would require the President to notify members of Congress about certain intelligence developments. The Senate bill would go further and require every member of the intelligence committees to be informed of the “main features” of certain intelligence activity. In addition, provisions in both bills would amend current law to allow the General Accounting Office to conduct intelligence oversight, by allowing any Congressional committee with some jurisdiction over an intelligence program to request a GAO review.

The White House has announced its opposition to these proposals. On March 15, 2010, the Director of the Office of Management and Budget, Peter Orszag, wrote the chairs of the Congressional intelligence committees to explain that the notification provisions, the GAO provisions, and the provisions concerning funding for the National Intelligence Program were problematic from the administration’s perspective. Indeed, Orszag went so far as to suggest that President’s senior advisers would recommend that he veto any bill containing these provisions.

At least in respect to the notification and GAO provisions, what the administration seems to oppose is any change in the relationship between the President and Congress in respect to the latter’s supervision of the work of the intelligence community. Currently, Congress is informed by proxy of significant intelligence activity — the President limits notification to senior leaders from both parties on the intelligence committees. In the administration’s view, the bills encroach upon “the President’s responsibility to protect sensitive national security information,” according to the Conference Letter prepared by the Office of Management and Budget.

Similarly, the administration argues that the GAO provisions would provide the GAO unprecedented authority. Currently, the intelligence community and the GAO have operated without any formal guidelines to govern their relationship. The administration fears that express GAO authority to engage in intelligence oversight would “alter the long-standing relationship and information flow between the [intelligence community] and intelligence committee members and staff,” as the Conference Letter argues, and "undermine the ability of the committees to contribute to improving the quality of intelligence operations through interaction with “a cadre of knowledgeable and experienced staff.”

The administration’s qualms with these Congressional proposals miss the mark. Neither the notification procedures nor the GAO provisions would undermine the relationship between the Congressional intelligence committees and the intelligence community. Neither proposal would compel the executive to disclose any sensitive national security information. Rather, these proposals would simply enhance the ability of members of Congress to be informed about the nation’s intelligence activities and, if necessary, to review those activities through GAO oversight that appear suspect. What the administration fears, in the end, appears to be a Congress that is better-informed and capable of acting more quickly to investigate executive actions in the area of national security.

Some might suggest Congress is simply operationalizing its constitutional obligation to keep the executive in check. There is no question that the textual allocations of national security authority in the Constitution are divided between both the executive and Congress. The Supreme Court, when called upon to determine where the line should be drawn between the executive and Congress on matters of national security, has held that the Constitution favors active political checks and balances. (See Youngstown Sheet and Tube Co. v. Sawyer, Hamdan v. Rumsfeld, Medellin v. Texas).

Congress’s effort through the authorization acts to gain greater oversight of certain intelligence actions is a clear example of a bi-partisan effort to exercise its shared constitutional responsibilities. One only has to look back a few years to see what can happen when Congress abdicates this responsibility. The intelligence oversight regime in effect back in 2005, which the Obama administration wants to preserve, is a regime that allowed the executive to engage in a multi-year warrantless domestic surveillance program. The full scope and details of this program remain unclear even to this day. It is noteworthy that the oversight — or lack thereof — kept members of Congress in the dark about the very existence of the program until the story broke in the New York Times in December 2005. It was several years after the fact and only after a great deal of legislative effort that Congress was able to exercise some form of regulation and oversight in this area. With the kind of freedom of action that the current oversight regime allows the President, it is small wonder that the Obama administration would be opposed to any change.

This is not an instance in which Congress should defer to the executive or to the intelligence community. Our constitutional structure is premised on the belief of the framers that each of the political branches of government should serve as a check on the excesses of the other, and should push back when the other branch pushes too far. The oversight mechanisms envisioned under the Intelligence Authorization Acts are precisely the kinds of programs that would allow Congress to exercise these constitutional responsibilities. This is not a partisan issue; Congress should not bow to the threat of a presidential veto. These changes should be preserved in the proposed legislation, and Congress should fulfill its constitutional obligations.

Victor Hansen teaches criminal law and criminal procedure and Lawrence Friedman teaches constitutional law and state constitutional law at New England Law | Boston. Their book, The Case for Congress: Separation of Powers and the War on Terror, was published in 2009 by Ashgate.

March 22, 2010

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Sovereignty, Atrocities and Accountability

JURIST Guest Columnist Laurie Blank of Emory Law's International Humanitarian Law Clinic says while legal debates about sovereign immunity most often center on principles of comity versus principles of victim access to justice, courts ruling on this issue should not forget about broader policy considerations and national security....

Remarkably, the United States Supreme Court and the International Court of Justice are addressing nearly identical issues at the same time: the application of sovereign immunity in suits for war crimes and other atrocities. Although the two courts may be unlikely to look to each other for guidance, the very existence of parallel cases about still unresolved issues speaks volumes.

It tells us that the notion of jurisdictional immunity for states is no longer automatic. It drives us to think about the role of sovereign immunity as a bar to jurisdiction and, more importantly, about the limited recourse victims of atrocities have to find justice through retribution and restitution. Finally, it spurs us to think about the policy considerations that rarely come to light amid technical discussions of statutory interpretation.

Samantar v. Yousef examines whether the Foreign Sovereign Immunities Act grants a former Defense Minister of Somalia immunity from suit in U.S. courts for torture and extrajudicial killings. In Germany v. Italy, the ICJ will consider whether Italian national courts have violated Germany’s sovereign immunity by awarding damages to Italian victims of Nazi war crimes.

Notwithstanding certain key differences – human rights violations or war crimes, individual state official or the state itself – the fundamental issues are decidedly similar. Does sovereignty immunize a state, or state officials, from accountability for atrocities, whether during armed conflict or during a repressive regime? Should victims lose the opportunity for redress simply because their oppressor is a state (or wears the cloak of state authority)?

Long-standing notions of comity and the desire to avoid one state’s courts sitting in judgment on another state’s conduct, the traditional justifications for sovereign immunity, are important considerations and worthy of great weight in analyzing how to respond to atrocities committed by states and state officials.

However, history and current events have taught us that the state’s capacity to commit atrocities knows no bounds. In the aftermath of repression and conflict, options for justice and compensation are often limited, if not non-existent. Germany’s provision of billions of dollars in war reparations to Italians and other victims of the Third Reich serves as a model – but unfortunately one that is rarely followed in modern times.

Beyond technical legal questions, therefore, lie broader policy reasons that should not be lost in sophisticated discussions of statutory interpretation and international comity. In other words, the resolution of these cases will not only provide excellent teaching materials for the next semester of International Law, but can have powerful ramifications both at home and abroad.

U.S. and international law prohibitions against torture, war crimes and other atrocities risk becoming meaningless without appropriate mechanisms for accountability. As we so often hear, victims of atrocities who find refuge here in the United States no longer have such refuge if the very perpetrators of those atrocities are living with impunity, just down the road.

But enabling perpetrators to find safe haven here has larger implications as well. The U.S. and other nations have important military and national security interests in ensuring accountability for atrocities, whether by domestic or foreign perpetrators. Our military’s long tradition of accountability for violations of the laws of war, dating back to the Revolutionary War, for example, reflects our military’s tradition of honor and adherence to the law.

More importantly, however, adherence to the law and accountability for abuses protect our military. First, our troops deployed overseas (and civilians as well) benefit from the protections of the law not only because all countries have obligations to respect the law of war and human rights law, but because reciprocity means that our adherence to the law demands comparable behavior from others.

Second, impunity for past abuses is a main ingredient in future abuses, which in turn foster the very instability and chaos that lead the U.S. and other nations to intervene in troubled spots to protect civilians and preserve or restore the rule of law. Increased accountability can thus protect our troops by helping to reduce the need to deploy them in such circumstances.

Debates about sovereign immunity most often center on principles of comity versus principles of victim access to justice. Let’s not forget about broader policy considerations and national security as well while we await the courts’ decisions.

Laurie R. Blank is the Director of Emory Law's International Humanitarian Law Clinic. She co-wrote the amicus brief on behalf of Retired Military Professionals in support of Respondents in Samantar v. Yousef.

March 17, 2010

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Roberts' Response: Not Out of Line (Either)

JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says recent comments by Chief Justice Roberts responding to President Obama's criticism of the Supreme Court's Citizen's United ruling were not disrespectful toward the institutions of Congress or the presidency or toward any particular person....

Chief Justice Roberts’ comments last week concerning President Obama’s controversial criticism of the Supreme Court’s campaign financing decision in his State of the Union address have generated criticism and controversy of their own. Some commentators believe that Roberts expressed excessive sensitivity toward criticism, while others have questioned whether he should have made any remark at all about an essentially political issue. Taken in context, however, Roberts’ remarks were appropriate for exactly the same reason that, as I explained in a JURIST column last month, Obama’s criticism of the Court was proper: the remarks of both Obama and Roberts were fair and reasonable and neither threatened judicial independence or integrity, or breached appropriate boundaries involving separation of powers.

Responding to a question from a student during an appearance at the University of Alabama School of Law on Tuesday, Roberts avoided any direct criticism of the President, whom he did not name. His remarks appear have been directed mostly and perhaps solely at the behavior of members of Congress, many of whom stood and cheered in the shadow of the silent and seated Justices after Obama forcefully criticized Citizens United v. Federal Election Commission, in which the Court by a five to four vote nullified certain limitations on spending by corporations in political campaigns.

After acknowledging that “anybody can criticize the Supreme Court,” Roberts added that “[o]n the other hand, there is the issue of the setting, the circumstances and the decorum.” According to Roberts, “[t]he image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court – according to the requirements of protocol – has to sit there expressionless, I think is very troubling.” Roberts remarked that “[t]o the extent that it has degenerated into a political pep rally, I’m not sure why we’re there” at State of the Union addresses.

The controversy that Roberts’ remarks has generated provides a reminder that judges, especially U.S. Supreme Court justices, need to be very circumspect in their public comments about any subject, particularly public affairs. Judicial conduct codes, including the Code of Conduct for United States Judges, prohibit judges from making public comment about the merits of any matter pending or impending in any court. Canons in these codes also require judges to uphold the integrity and independence of the judiciary and to avoid impropriety and the appearance of impropriety in all activities. These canons imply that a judge should refrain from any public comment that might suggest that they have pre-judged any legal issue, even ones that have not come before their court. They also imply that judges should steer clear of any political controversy in order to avoid any appearance that their decisions are influenced by partisan considerations. The Code of Conduct for United States Judges states that while judges “may speak, write, lecture, and teach on both law-related and nonlegal subjects,” a judge “should not participate in extrajudicial activities that detract from the dignity of the judge’s office” or “reflect adversely on the judge’s impartiality.”

Roberts did not transgress those standards in his remarks this week. Since he spoke only in response to a question than in a prepared statement, he did not deliberately interject himself into the controversy over Obama’s statement about Citizens United. His expressions of irritation did not transgress the bounds of dignity, although they may have teetered on the edge. Just as Obama’s remarks about Citizens United did not express any disrespect for the Court as an institution or encourage any extra-constitutional defiance of the Court’s decision, Roberts’ remarks this week were not disrespectful toward the institutions of Congress or the presidency or toward any particular person.

Moreover, Roberts said nothing that could have raised questions about his partiality concerning any issue that might come before the Court. Indeed, Roberts firmly refused several times during the question and answer session to respond to queries about issues that the Court adjudicates or might adjudicate, including the scope of the Ninth and Tenth Amendments, and problems arising from the spiraling costs of state judicial election campaigns.

Roberts’ appearance this week at the University of Alabama is an example of how Supreme Court justices can educate the public about the judicial process. During recent decades, Justices often have met with students, lawyers, and various civic groups to discuss a multitude of issues and subjects, including methods of constitutional interpretation, the process by which the Court selects and decides cases, and the Court’s history. These public appearances have served an important educative function and almost certainly have enhanced public respect for the Court as an institution.

All of the Justices have exhibited appropriate discretion in the vast majority of their public comments. When confronted with questions that would require them to comment on issues that might come before the Court or to speak about sensitive political issues, the Justices usually have not hesitated to decline to comment.

Roberts’ musing about whether the Justices should continue to attend State of the Union addresses is an example of the interesting issues that judges can raise when they speak in public, and his doubts about the value of such attendance deserve further consideration.

Ever since President Wilson in 1913 restored the custom of delivering the State of the Union address in person to a joint session of Congress, most members of the Court have attended nearly all of the addresses. The most notable exception occurred in 1937, when none of the Justices attended because they knew or anticipated that President Franklin D. Roosevelt would criticize the Court for its invalidation of New Deal legislation. In our own time, Justice Clarence Thomas has absented himself from State of the Union addresses because he contends that they have become too partisan. Justice Antonin Scalia also has avoided them, as did former Justice David H. Souter.

The State of the Union speech provides a unique opportunity for all three branches of the federal government to come together at one place and at one time. This annual convocation of the nation’s principal executive, legislative and judicial officials symbolizes both the unity of the federal government and the separation of its branches. But while there may be good reason to include the Justices in the joint session of Congress, there is no reason why they need to be present.

Indeed, the Constitution seems to pre-suppose their absence. Section 3 of Article II of the Constitution states that the President “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” The Framers therefore contemplated that the President’s message would be a communication between the President and Congress rather than any communication to both the Congress and the Court. Although the language of the Constitution should not bar Congress from extending invitations to the Justices to attend the President’s address, their attendance definitely is not part of their official constitutional roles or duties.

When legislators invite Justices to attend a joint session of Congress, they should not demonstrate disrespect toward the jurists. Although Obama properly used the “bully pulpit” of his State of the Union address to call attention to his objections to a very important judicial decision and to encourage Congress to enact legislation to ameliorate some of its effects, members of Congress did not need to pop out of their seats and erupt into applause in the presence of six Justices, including several who voted to strike down the campaign finance provisions. It is understandable that Roberts did not welcome the boisterous “pep rally” that Obama’s remarks provoked among members of Congress.

Since presidents rarely criticize Supreme Court decisions in their State of the Union addresses, there is little reason for Roberts or other Justices to fear that they will suffer again any time soon the discomfort that they may have experienced during this year’s State of the Union address. Indeed, their absence from next year’s address in the wake of this year’s controversy could suggest that they were unduly sensitive toward criticism or stir rumors that they bore some kind of animosity against Obama. Let’s therefore hope that Roberts and some Associate Justices attend the State of the Union address again at least one more time.

William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include various studies of extra-judicial speech, separation of powers, and the relationship between the Supreme Court and public opinion. His website is

March 16, 2010

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A Better Course: More on the Court-martial Alternative to Military Commissions

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.), a former Special Assistant to the Judge Advocate General for Law of War Matters and currently a professor at South Texas College of Law, says that no matter how much the military commission system for trying detainees is modified, it will never match the legitimacy of a General Court-Martial...

I write to offer a brief supplement to Professor Paust’s provocative JURIST editorial Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees (and note that we both trace our roots back to the Army JAG Corps and now find ourselves planted in Houston!).

Like Professor Paust, I also believe that trial by court-martial is a viable alternative to trial by military commission for Guantanamo detainees. In fact, I vividly recall the day that the Department of Defense announced that it would be creating the original military commissions. I had just returned from a meeting in Bonn with our German Bundeswher counterparts to discuss cooperative security efforts in response to the threat of terrorism against U.S. forces in Germany. When my Colonel told me the news, my initial reaction was “why don’t we just try them by court-martial?” I explained to him and others in the office how the UCMJ had always vested General Courts-Martial with jurisdiction over any person who was subject to trial by military tribunal pursuant to the law of war. I also explained that while the question of whether international terrorism could properly be characterized as violations of the laws and customs of war would be complex, the answer would be dispositive to jurisdiction of either tribunal. Why, therefore, would it be in the national interest to create a new tribunal instead of relying on the well established General Court-Martial?

I was told to draft an extensive memorandum addressing these points that my Colonel submitted to The Judge Advocate General of the Army. A reply was quickly received: ‘thanks for the ideas; already considered and rejected.’ I was perplexed. Then President Bush issued Military Order #1 creating the military commissions. That cleared things up quite quickly: the last thing the Administration sought to achieve was a regularly constituted tribunal with meaningful trial procedures, rules of evidence, or appellate process.

Nine years later, much has changed. Judicial and subsequent legislative interventions have substantially enhanced the legitimacy of the military commissions. Indeed, these enhancements prevent me from concurring with Professor Paust that the current commissions are fundamentally invalid. Nonetheless, I continue to believe, as I did from the day the commissions were announced, that trial by General Court-Martial would be a better course of action for any Administration determined to rely on military courts to try these detainees, and I applaud Professor Paust for suggesting this alternative. In support of his suggestion, I offer this one observation.

Professor Paust cites two provisions of the UCMJ as potential sources of jurisdiction over detainees: Article 2(10) and Article 18. Article 18 defines offenses subject to the jurisdiction of General Courts-Martial. The first prong of that article relates back to Article 2 of the UCMJ, which defines those individuals who are “subject to the Code.” This simply means that General Courts-Martial have jurisdiction over any person Congress subjects to the proscriptions of the UCMJ in Article 2. Accordingly, trial pursuant to prong one of Article 18 would be for a violation of the domestic US military code - the UCMJ itself. In addition, the second prong of Article 18 subjects any person who violates the laws and customs of war to trial by General Courts-Martial. This jurisdiction is triggered not for a violation of the UCMJ (U.S. law), but for a violation of international law. Through the second prong of Article 18 Congress has simply provided a forum for adjudicating such violations; the same forum established for adjudicating violations of the domestic military code (the UCMJ).

There is a fundamental and critical distinction, however, between these two grants of jurisdiction. In the first instance, the accused will be tried for violation of U.S. law, and therefore must be subject to that law at the time of the offense. This is why Article 2 of the UCMJ defines who is in fact “subject to the Code.” In the second, because the accused is tried for a violation of international law, there is no requirement that he or she be “subject to the Code” at the time of the offense. Article 2 is therefore the conduit that links an individual to the proscriptive jurisdiction of the UCMJ itself.

Unsurprisingly, Congress has limited individuals “subject to the Code” to individuals with some link to the U.S. military. The most obvious category is members of the regular armed forces. But Article 2 also includes some other interesting categories, such as “persons serving with or accompanying an armed force in the field." Civilian who accompany the U.S. armed forces in the field and provide support have always been subject to the U.S. military code, a tradition traced back to the British Articles of War. When Congress enacted the UCMJ, it continued this tradition through Article 2(10). This category does not, however, provide a court-martial with jurisdiction to try civilians accompanying an opposition armed force. These individuals have no connection with the U.S. armed forces prior to capture, and therefore were not intended to fall within this category. This does not mean Congress is prohibited from extending U.S. law to such individuals for pre-capture misconduct, but that intent must be clear. There is absolutely no indication Article 2(10) was intended to have such reach. Instead, there is ample evidence that only civilians supporting the U.S. armed forces fall into this category. This was reinforced in 2006 when Congress amended the provision to eliminate an implied “declared war” qualifier, a change intended to ensure accountability for civilian contractors, not to provide jurisdiction over enemy civilians.

Does this that individuals associated with enemy forces are immune from court-martial jurisdiction? No. This is where prong two of Article 18 becomes controlling. Pursuant to Article 18, there is a critical condition precedent to the exercise of court-martial (and in my view any military) jurisdiction for pre-captured misconduct of a detainee: the U.S. must allege a violation of the laws and customs of war. This is logical, as there is no issue of the U.S. projecting its law upon individuals not yet connected to the UCMJ. It is international law – law that proscribes the conduct of all participants in armed conflict – that provides the proscriptive jurisdiction applied by the General Court-Martial.

Fidelity to the distinction between the two categories of jurisdiction established by Article 18 is essential to future legitimacy. The UCMJ includes dozens of statutory criminal proscriptions, including offenses it would be absurd to apply to an enemy operative or enemy civilian prior to capture (for example, could such a captive be tried for desertion if he surrenders to U.S. forces?). Congress did not intend those statutory proscriptions to apply to captured personnel prior to capture (although upon capture they are subject to the UCMJ); instead, it merely provided a regularly constituted and legitimate forum for adjudicating allegations of pre-capture war crimes.

I therefore agree with the outcome of Professor Paust’s calculation, although I question the ingredients. One conclusion is, however, without dispute: no matter how much the military commission is modified, it will never match the legitimacy of a General Court-Martial.

Geoffrey S. Corn is a professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters.

March 15, 2010

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