JURIST Contributing Editor David Crane of Syracuse University College of Law and Founding Chief Prosecutor of the Special Court for Sierra Leone from 2002 to 2005 says that in responding to post-electoral unrest Iran's Supreme Leader is utilizing a method employed by history's most notorious dictators...

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Events in Iran are tragically unfolding before our very eyes. The raw boned spectacle of tyranny is displayed on television and computer screens, and via text messages and twitter posts. Censors attempt to stop the information flow, but the clean sands of the truth slip between their fingers. The world sees what the Islamic Republic of Iran truly is — a tyranny ruled by demagogues.

After the so-called “election,” Iran’s leaders, in a whirlwind of statements bordering on the shrill, lashed out blindly at mostly perceived threats from within the country and internationally. They allege that the unrest in their country has been caused by a terrorist conspiracy backed by the United States, Great Britain, and, of course, Israel. Trying to deflect worldwide condemnation surrounding both the recent presidential elections and the heavy-handed way they have dealt with those who have taken to the streets in protest, the Supreme Leader and his President are using a centuries-old tactic that many tyrants, dictators, and thugs have relied on to focus the attention of their citizenry away from their oppressive internal policies and toward a supposed external threat to the nation.

In effect the Supreme Leader is creating what I call a “bogeyman” to justify his government’s actions. What these thugs are essentially saying is: “I am taking away your liberty and your freedom, arresting you without charge, even killing you to protect you from the real threat: the great Satan, the bogeyman, who seeks to destroy the nation.” I know this sounds absurd, but history has shown us that it works in the short term. Over the past thirty years in Iran, the bogeyman has helped the regime to hold on to power.

The 20th Century — what I call the bloody century — saw the deaths of over 100 million human beings at the hands and policies of their own governments. Tyrants, dictators, and thugs such as Adolf Hitler, Joseph Stalin, Mao Tse-Tung, Idi Amin, Pol Pot, Slobodan Milosevic, Saddam Hussein, Charles Taylor, and Robert Mugabe (to name a few), all justified their atrocious actions by claiming to protect the nation from a real or perceived external threat; to rally their citizens to sacrifice for the good of the nation, the motherland. What they admonish is, “I am protecting you!” What they were really doing was trying to gain and maintain their control of the nation.

At various times in recent history, the Jews, NATO, the West, capitalists, the infidels, former colonial masters, and the United States (by virtue of its political position on the world stage), have been characterized as the so-called bogeymen. These tyrants each claim to be the one person capable of saving their citizens from themselves and from that external threat. Without this, their policies and efforts to stay in power lose any justifiability whatsoever.

History also shows us that using the bogeyman tactic to stay in power is a short- term strategy that generally backfires on those who use it. These tyrants are generally overthrown, killed, indicted, forced to resign, or forced to flee. In Iran, the Supreme Leader is walking down a very slippery path, a path that most likely will lead to his demise. The desire for freedom is difficult to quash. All peoples want to be free from want and fear, to have the freedom to worship in their own traditions, and to speak their minds. This younger generation of internet savvy Iranians know that there is a world out there far different from that which has been depicted to them by the Supreme Leader. There is no bogeyman!

Query: Will the next bogeyman used by the rulers in Iran be the worldwide web?

It remains to be seen how this will all end, but at a minimum the end product will be a politically and morally diminished Iran. Their place in the world community will be that of a nation feared, isolated, and feeding upon itself from within. The regime will howl, lash out, and blame others for their problems and challenges. It may appear that they have all the cards for now, but they don’t have the ace of spades — freedom — and because they don’t have that card, they will ultimately lose.


David M. Crane is a professor at Syracuse University College of Law, and founding Chief Prosecutor for the UN Special Court for Sierra Leone (2002-2005).

JURIST Guest Columnist Andrew J. Puglia Levy, an attorney in Washington D.C. who served in the US Department of Homeland Security from 2006-2009, most recently as deputy general counsel, says the risks of bringing some Guantanamo detainees to the United States are significant because the Obama Administration's legal options for holding them here are limited and problematic....

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"The President would never allow it. Our judicial system would never allow it....In fact, I think it is beyond the realm of possibility." So said Senator Dick Durbin to critics of the Obama Administration’s decision to transfer former Guantanamo Bay detainee Ahmed Khalfan Ghailani to the United States to face trial in federal court.

The Illinois Senator was responding to concerns that detainees like Ghailani (who is accused of being involved with the 1998 U.S. embassy bombings) could be acquitted and set free in the United States. But dismissing these concerns reflects a misunderstanding of the legal framework that will govern the Administration’s recent decisions. Although trying detainees in Article III courts is President Obama’s prerogative, and although doing so may be the appropriate route for some cases, this strategy must acknowledge the real risk that alleged terrorists could be acquitted or could receive short sentences. Recent reports that President Obama is considering an executive order authorizing the indefinite detention of alleged terrorists suggest that he recognizes the current problem.

It is impossible to predict with certainty the result of any trial, let alone those involving such novel circumstances. Many of the detainees at Guantanamo Bay were captured in connection with combat overseas. For those whom the Administration decides it can try, their cases therefore come with the myriad challenges associated with turning battlefield encounters into successful federal cases, including the admissibility and availability of evidence and ensuring the protection of classified sources and methods.

Widespread allegations of detainee mistreatment as well as the recently released Justice Department memos, which set forth the legal justification for enhanced interrogation techniques, only make these cases more vulnerable. They provide traction for defense arguments that detainee statements were coerced, and they could undermine jurors’ overall confidence in the government’s case. These potential problems may explain the Administration’s reported new policy of reading Miranda rights to terrorists captured abroad—something that makes sense if your paramount concern is building a case, not fighting terrorism.

Military commissions are one viable alternative to trials in federal court, in part because they can more easily incorporate procedural and evidentiary rules to lessen some of these challenges. But while the Administration’s decision to restart military commissions at Guantanamo Bay is welcome news, these commissions cannot all be completed before the President’s January 2010 deadline for closing the base.

At that point, the White House will have serious options to consider. The Executive Order setting the deadline for closure contains a provision authorizing transfer of all remaining detainees to “another United States detention facility.” That leaves open the possibility that detainees could be transferred to another oversees U.S. facility, an alternative the Administration may be grateful to have. More likely, though, the remaining military commissions will take place in the United States.

Even these proceedings are not immune from risk, however. Salim Ahmed Hamdan, Osama Bin Ladin’s driver, was sentenced by a military commission jury to only 66 months and was given credit for the 61 months he had already spent at Guantanamo Bay. He was then sent to Yemen and is now free.

Regardless of whether the detainees are tried in federal court or by military commission, there is no federal law that expressly permits the government to indefinitely detain them in the United States in the event that they are acquitted or complete a court-ordered sentence. The fact that those at Guantanamo Bay are not U.S. citizens is of little significance because the immigration laws do not provide a guaranteed backstop either. Once detainees are here, it is more difficult, for both legal and policy reasons, to remove them. Over the years, the government has been forced to release convicted violent criminals when their home countries would not take them back or when the United States had concerns that the country would torture them upon return. In these cases, no acceptable third country was available.

Consider the case of Ha Tran, a Vietnamese refugee with a history of mental illness, who murdered his wife in the presence of their seven-year-old daughter, pled guilty, and was sentenced to eighteen to twenty years in prison. Before completing his sentence, he was transferred to immigration custody and placed in deportation proceedings. When the government was unable to effectuate his removal, a federal court of appeals granted his habeas corpus petition and ordered his release. Such an outcome is troublesome enough in an ordinary criminal case like Tran’s. It is obviously more so in the case of those who are reasonably expected to pose (indeed, are committed to posing) a continuing threat.

One possible safety valve is a provision buried in the PATRIOT Act geared toward alien terrorists picked up in the United States and pending removal, but it is likely to face its own legal challenges. The provision allows for the indefinite detention of suspected terrorists on review and certification by the attorney general that they pose a risk to national security. Yet, to my knowledge, this authority has never been used. It is an extraordinary power that would undoubtedly be challenged in the courts. And its availability is particularly unclear if an individual has already been cleared of terrorism-related charges.

To suggest that, despite this lack of reliable law, the President “would never allow” alleged terrorists to be set free in the United States ignores legal reality — or at least the version of legal reality President Obama has embraced so far. If he goes forward with an executive order allowing for the indefinite detention on U.S. soil of those Guantanamo Bay detainees who are too dangerous to release, he will be adopting a position advanced by the Bush Administration. That argument, that the President retains certain inherent constitutional authority as commander-in-chief in the war on terror, was maligned by some at the time, including Senator Durbin. At Justice Alito’s confirmation hearing, he referred to the notion of a unitary executive, including as a basis for indefinite detention, as a “marginal theory at best.”

An executive order may be a useful stop-gap measure, but it is not clear that the current Supreme Court would be willing to accept the Administration’s interpretation of executive power. Rather than allow Supreme Court review of cases in which alleged terrorists had been detained in the United States without charge based on a presidential determination that they were “enemy combatants, the Bush Administration and, more recently, the Obama Administration, transferred the cases for trial in federal court.

In lieu of an executive order, the Administration could work with Congress to pass a law authorizing this kind of detention, another option it is reportedly considering. A workable preventative detention law would be an important homeland security tool going forward, and providing for judicial review in the form of a national security court could increase the chances of such a law surviving legal challenge.

Bringing detainees here comes with risks nonetheless. The Supreme Court has shown an increased willingness to delve into war on terror decisions, as well as a refusal to automatically defer to the national security assertions of the President (or Congress). Considering the stakes, President Obama may not want to allow the only thing preventing dangerous detainees from walking the streets to be a newly enacted law that the Court could strike down.


Andrew J. Puglia Levy, an attorney in Washington, was deputy general counsel of the Department of Homeland Security in the Bush Administration.

JURIST Guest Columnists Olga Martin-Ortega of the Centre on Human Rights in Conflict, University of East London (UK), and Jordi Palou-Loverdos, a lawyer who has represented Rwandan, Congolese and Spanish victims of crimes against humanity before the Spanish courts, say that preserving Spain's broad universal jurisdiction law from growing political pressure to narrow it is in everyone's interest....

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On June 25th a bill to amend existing universal jurisdiction legislation in Spain was passed by the Spanish Congress and now awaits approval in the Senate. The bill follows an agreement between Spain's two main political parties on amending Article 23.4 of the Spanish Organic Law on the Judicial Power (LOPJ in its Spanish acronym). The purpose of this amendment is to limit the capacity of Spanish courts to exercise jurisdiction over international crimes committed abroad by non-Spanish nationals. This amendment has been made through an unusual and extraordinary parliamentary process which limits debate, and in fact prevents necessary informed discussion on it. While final passage of this legislation now appears inevitable, it is also lamentable, as it would be a loss to our common humanity.

Spanish courts have been exercising universal jurisdiction for over a decade now. They have made an extraordinary contribution to the development of international criminal law and the fight against impunity. Article 23.4 LOPJ establishes that the Audiencia Nacional has jurisdiction over acts perpetrated by Spanish nationals and acts perpetrated by foreigners outside of Spain if such acts are alleged to constitute: genocide, terrorism, war crimes, and any other crime which should be prosecuted by Spain in accordance with international treaties.

The Spanish courts first exercised universal jurisdiction in 1998 when the Audiencia Nacional indicted several Argentinean and Chilean officials for their alleged roles in abuses committed as part of Plan Condor. General Augusto Pinochet and other high ranking members of the former junta were among the 99 current or former members of the Argentinean military charged in the case. The fate of the proceedings against Pinochet is well known. While most of the indicted Argentineans were not extradited by Argentina, Mexico extradited former Argentinean military official Ricardo Miguel Cavallo in 2000. In 2001, Adolfo Scilingo was also detained, processed, and sentenced to a long prison term by the Audiencia Nacional for crimes against humanity committed in Argentina. Other cases followed, including a case initiated by the Nobel Peace Prize laureate Rigoberta Menchú concerning the genocide, torture, terrorism, assassinations, and illegal detention in Guatemala.

Spanish courts have continued to address serious violations around the globe for which no alternate forum has been found. Such efforts include a case against officials of the Rwandan Patriotic Army (RPA) and the Rwandan Patriotic Front (RPF) for crimes allegedly committed against Hutu Rwandans, Congolese, and nine Spanish victims surrounding the Rwandan genocide (1990-2002). As part of this effort, Spanish courts issued 40 international arrest warrants for alleged genocide, crimes against humanity, and war crimes by senior political and military officials in Rwanda. The courts have also addressed such human rights issues as Chinese abuses in Tibet and the US torture of Guantanamo detainees.

States have not only a right but a duty to guarantee that the most severe crimes— those which are considered to be committed not only against the victims, but against the international community as a whole — do not remain unpunished. The amendments introduced to the Spanish law constitute an important step backwards in the effort to develop coherent global processes of accountability for human rights atrocities. International law has developed since the Nuremberg and Tokyo trials to provide norms and venues for the exercise of universal justice, as seen in the ad hoc Criminal Tribunals for the Former Yugoslavia and Rwanda, the Special Courts for Sierra Leone, East Timor, and Cambodia, and the International Criminal Court. Each of these mechanisms, acting in tandem with domestic courts, serve as instruments for the enforcement of human rights and international humanitarian law. Universal jurisdiction is only one of the tools available in the fight against impunity for severe human rights violations.

Spain, therefore, is not acting as a “world policeman,” but is exercising both its right and its duty in international law. If the new amendment is passed, Spanish courts would have to prove Spain’s specific interest in prosecuting any given crime. In order to do so, courts will have to evidence one of the following: the involvement of Spanish victims in the claim, the residence of the suspect in Spain’s territory, or a “special relation” between the crimes and Spain. The introduction of these conditions will severely restrict the use of universal jurisdiction as a complementary tool for the achievement of universal justice. In practice, this would mean that those crimes committed where there is no other option for justice — where the international community is unwilling or unable to establish international tribunals, or where the crime was committed before the International Criminal Court was established — will not be addressed. In such cases, victims will not be vindicated and justice will not be served.

Until now, the Spanish universal jurisdiction law has managed to withstand political pressure rising to the level of that which ultimately compelled Belgium to revise its own universal jurisdiction legislation. It is in the interest of the international community as a whole - of all of us - to preserve this instrument as another avenue of justice, complimentary to the International Criminal Court and potential hybrid courts. As Human Rights Watch spokesperson Reed Brody recently put it, the Spanish universal jurisdiction rule belongs not only to the Spaniards, but to all of us. It is part of the heritage of the international community, and as such we should defend it.

Olga Martin-Ortega is a Senior Research Fellow at the Centre on Human Rights in Conflict, University of East London. Jordi Palou-Loverdos, a lawyer, has served as counsel for the International Criminal Court and has represented Rwandan, Congolese and Spanish victims of crimes against humanity before Spain's Audiencia Nacional

JURIST Guest Columnists Renée Landers of Suffolk University School of Law and Lawrence Friedman of New England School of Law say that unless US Presidents embrace a broader view of "diversity" in future Supreme Court nominations, they may deprive the public of justices who may see the world and the legal issues it presents differently and more helpfully than justices whose views on law are shaped by essentially similar educational and professional experiences...

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If confirmed as the first Hispanic to serve on the U.S. Supreme Court, Sonia Sotomayor will add long overdue diversity of ethnicity to the court’s composition, as well as enhance its diversity of gender and economic origins. In other respects, however, Judge Sotomayor will not add much at all: the court’s current members share with her a set of educational and professional credentials that reflect a narrow range of legal education and experience. In this regard, there is virtually no diversity on the court.

As noted by many commentators, Judge Sotomayor, like two current justices, Clarence Thomas and Samuel Alito, received her law degree from Yale, while five of the justices are Harvard Law School graduates (as is retiring Justice David Souter). Only one does not have an Ivy League law degree — Justice John Paul Stevens went to Northwestern.

Similarity in education is only one trait common to the current membership of the court. From their Ivy League educations, five justices were law clerks to federal judges, and four have been legal academics. All nine, moreover, served as federal appeals court judges, while seven worked in the Department of Justice, a federal prosecutor’s office, or as a legal counsel to a federal agency or Congressional committee. Only Justice Souter had state experience before becoming a federal judge — first as New Hampshire attorney general and then as a judge in the New Hampshire court system at both the trial and appellate levels.

According to the American Bar Association, there are 200 accredited law schools and more than one million lawyers in the United States. Needless to say, many of the lawyers who did not graduate from Harvard or Yale are just as accomplished as their Ivy League counterparts. They count among their numbers many hundreds of respected law firm lawyers, general counsels to corporations and institutions, agency lawyers, prosecutors, and state and federal judges.

To suggest that a Supreme Court justice need not have a Harvard degree and a federal judgeship is not to say that legal acumen should be disregarded as a qualification for the job. But the lawyers who receive elite educations and subsequent federal employment have no monopoly on legal acumen. Few would argue, for example, that Justice Stevens is any less sophisticated in his approach to judicial decisionmaking or constitutional analysis because he did not attend an Ivy League law school.

Elite lawyers, moreover, do not necessarily produce superior decisions as Supreme Court justices. At the annual meeting of the Association of American law Schools in 1990, A. Leon Higginbotham, Jr., a long-serving federal judge and an award-winning historian of race, addressed the difference values make in judicial decision making. Rejecting what he called a “whispered or unarticulated elitism” among some law school professors, he described how four of the five justices in the majority in Plessy v. Ferguson — the 1896 decision in which the Supreme Court enshrined segregation into American law — were educated at either the Harvard or Yale law schools. The lone dissenter in the case, Justice John Marshall Harlan — who stated what we now understand to be correct, that separate is not in fact equal — was a graduate of the Transylvania College of Law.

That an elite education is not necessarily commensurate with superior legal argument was most recently demonstrated during the administration of President George W. Bush. The lawyers who advised President George W. Bush on his controversial national security policies — including his policies on the detention and interrogation of terror suspects — were drawn from the same pool of lawyers from which Presidents select Supreme Court justices. And in case after case challenging the Bush administration’s policies, the arguments in support of increasing the executive’s power and limiting due process protections for detainees have been found wanting.

It remains that the tradition of judging in the United States, especially at the level of the Supreme Court, involves exercising judgment and not just a technocratic application of settled law. In A Primer on the Civil Law System, James G. Appel and Robert P. Deyling describe how, in civil law systems, the judiciary is a civil service-like career track that law graduates join after passing qualifying examinations. They move up the judicial hierarchy based upon seniority and performance. They are viewed as performing important, but not creative functions. Unless Presidents branch out from the trend toward viewing the ranks of judges on the Courts of Appeal as the only credible candidates for the Supreme Court, the federal judiciary may well start to function like the civil law system career track.

In the end, by confining the shortlist of potential nominees to those lawyers with certain backgrounds, Presidents overlook the opportunity to add to the Supreme Court another kind of diversity, one that may be just as important as racial and gender diversity. These Presidents deprive the public of justices who may see the world and the legal issues it presents in ways that are different and more helpful than those justices whose views on the law were shaped by essentially similar educational and professional experiences.

Renée M. Landers is a past president of the Boston Bar Association and teaches at Suffolk University School of Law, where she is Faculty Director of its Health and Biomedical Law Concentration; Lawrence Friedman teaches constitutional law at New England School of Law.

JURIST Guest Columnist Victor Hansen of New England School of Law says that Department of Defense approval of military defense counsel's participation in Ahmed Khalfan Ghailani's federal court terrorism case would underline the Department's core commitment to the rule of law, and would show that military lawyers are capable of providing competent legal representation to anyone, regardless of who they are or what they may have done...

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The first terrorist suspect held at Guantanamo, Ahmed Khalfan Ghailani, was recently transferred to federal district court in New York to face charges for his alleged role in the embassy bombings in Tanzania. The move received a great deal of media attention as a test case for the Obama Administration’s plan to close down the detention facility at Guantanamo and to prosecute at least some of the terrorist suspects in U.S. federal court, rather then by military commission. A development in the Ghailani case that received less attention was Ghailani's request to keep his appointed military defense counsel to represent him in federal court. The federal district judge ruled that Ghailani could keep his military counsel if the Department of Defense approved the request.

Representation of terrorist suspects by military defense counsel in federal district court is without modern precedent. While military defense lawyers occasionally represent military members in federal court, those situations typically arise when the military member is being criminally investigated or sued civilly for actions taken in his or her official capacity. There are no modern precedents for military defense counsel representing a suspected terrorist being prosecuted in federal district court. Because of this lack of precedent and the possible concern that if a request were granted in this case it would open the floodgates for other Guantanamo detainees to make similar requests, the inclination of Department of Defense officials may be to deny the request. More careful consideration, however, is warranted before Department of Defense officials act on such an inclination.

Since their initial inception by the Bush administration to try terrorist suspects, the military commissions process has been subjected to widespread criticism, both domestically and by our friends and allies abroad. The Obama administration’s recent announcement that it is considering using a revised version of the military commissions for some of the detainees at Guantanamo means that this criticism and concern is likely to continue. Much of the criticism has centered on the lack of fairness in the procedures to prosecute these detainees. Other criticism has focused on the lack of legal authority for these military commissions, the ex post facto nature of the offenses which are being prosecuted, and the concern that the military commissions process is not in compliance with our treaty and other international obligations.

The recent request by Ahmed Khalfan Ghailani that his military lawyers remain on his case in federal district court is another opportunity for the military to demonstrate the quality of its service members and the culture of respect for the rule of law that exists in the military. It is quite remarkable to consider that Mr. Ghailani would ask members of the military that has detained him for the past several years without trial, to now represent him in federal court. Granting Mr. Ghailani’s request would be akin to granting him the right that any service member has to make a by-name request for a military attorney to represent him or her. These requests are known as Individual Military Counsel (IMC) requests, and they are routinely granted if the requested counsel is available and not otherwise conflicted.

If the military were to treat Mr. Ghailani’s request as an IMC request, it is quite possible that the analysis would lead to the conclusion that his military counsel can continue to represent him in federal district court on these charges. In doing so, the military would send a strong message that one of its core institutional values is respect for the rule of law, and that military lawyers are capable of providing competent legal representation to anyone, regardless of who they are or what they may have done. The Department of Defense should carefully consider the powerful example and message of such a decision.


Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law

JURIST Guest Columnist Michael Macchiarola, an adjunct professor at CUNY Law School and Seton Hall University School of Law, says that the Securities and Exchange Commission's recent complaint against Countrywide Financial offers several lessons for those who would repair our ailing financial services industry...

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The recent SEC complaint alleging that three former Countrywide Financial executives engaged in securities fraud makes for some very important reading for our nation’s lawyers and law students. Aside from an insider trading claim aimed at Angelo Mozilo, the founder and former chief executive of Countrywide, the crux of the SEC’s civil charges concern the actions of Mozilo and two of his lieutenants, David Sambol and Eric Sieracki. Whether or not the allegations are proven true, the environment described in the complaint will be eerily familiar to too many swept up in the last decade’s euphoric rise of the financial industry. We can only improve our nation and repair the soul of financial services if we learn certain lessons that the complaint can teach. Here are five lessons to be gleaned immediately:

Don’t change your stripes

SEC Enforcement Director Robert Khuzami described the charges as “a tale of two companies.” While on the one hand the executives had grown increasingly worried about the risks that Countrywide was assuming in its aggressive pursuit of market share, on the other they continued to describe an environment of tight controls and responsible risk management to investors. In life, it is rarely a good idea to have a different story depending on your audience. More specifically, it is difficult to do right by your shareholders and abide by the disclosure requirements at the foundation of the federal securities laws if you do.

Don’t copy last year’s disclosure

The complaint alleges that the composition of Countrywide’s mortgage portfolio changed significantly as the company offered riskier products and increased the “exceptions” to its credit guidelines. At the same time, many of the descriptions of the Company’s products and controls remained remarkably unchanged from those offered in last year’s public disclosures. While most professionals are guilty of starting from a precedent document, it is generally a good idea to deviate from precedent as things change – especially when those changes are material.

It’s difficult to stand in the way of a money train

Bernie Madoff aside, very few businesspeople start out with malice in their heart. The siren song of money and continually increasing profits can be tough to resist, however. Here in-house counsel and regulators can play a meaningful role – perhaps ratcheting up oversight as a company gets more and more enamored with its own success. In hindsight, we know that each failed to assert a strong enough role as a healthy skeptic. Going forward, it is clear that we need aggressive, no-nonsense in-house counsel as well as financial regulators who are willing to ask tough questions.

Don’t let others define your business decisions

One of the complaint’s most damning allegations is its description of Countrywide’s “supermarket” business model which made available any product offered by at least one competitor (including subprime) and which expanded the risk guidelines to match other lenders. To even the untrained eye, this model amounts to little more than a cobbled together collection of the riskiest standards for each product in the mortgage universe. Not surprisingly, it didn’t end well for Countrywide. All too often in business, companies “outsource” their own decision making function to their competitors. Whether in hiring, pricing or risk management, it is generally a better idea to do your own homework.

Very often, there are no rewards for laudable behavior

Perhaps the most interesting part of the complaint is the description of the behavior of a Countrywide employee that the SEC inadvertently fails to properly introduce. Simply referred to as "McMurray" throughout, these passages most likely refer to former Senior Managing Director and Chief Risk Officer at Countrywide, John McMurray. Throughout the complaint, the SEC describes Mr. McMurray as the voice of reason within the organization - constantly warning colleagues of the risks of the portfolio and, more importantly, of their obligations to accurately disclose those risks. Ultimately, Mr. McMurray took the extraordinary step of qualifying his certification to the company’s Sarbanes-Oxley officer. Perhaps it is telling that the most upstanding actor to be found in the bunch doesn’t even warrant a proper introduction. Oh well, I guess President Truman was right: “If you want a friend . . . get a dog.”

Michael C. Macchiarola is an adjunct professor at CUNY Law School and Seton Hall University School of Law

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that the closest precedent to the Israeli position on the Gaza war is justification, an international law doctrine that has been a dead letter since the end of World War II and the adoption of the Fourth Geneva Convention...

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I've been invited to a conference in Israel on a topic of great interest to me: “Hamas, The Gaza War, and Accountability Under International Law.” The conference will be held at the David Citadel Hotel on June 18, 2009. I will not attend because it isn’t a conference, it’s a PowerPoint presentation. Every speaker on the agenda is an advocate of the Israeli position. There isn’t an independent scholar of international law, much less a Palestinian, on the list of speakers.

If I had attended and had a chance to speak, I would say a few words about the closest precedent to the Israel-Gaza situation: justification. I doubt anyone at the Hotel would dare to bring it up. Justification for war crimes has been a dead letter since World War II.

The doctrine of justification in international law applies when one side commits a war crime in order to deter the continued commission of war crimes by the other side. During World War II in German-occupied European countries, if a sniper killed a German soldier on patrol and the German authorities were unable to identify the shooter, fifteen or twenty residents in the vicinity would be selected at random, taken to the town square, and shot. Today that kind of reprisal would be considered a war crime — Article 33 of the Fourth Geneva Convention of 1949 flatly prohibits collective punishment and reprisals against civilians — but back in the 1940’s it was not illegal. The French, British, and U.S. field manuals had specifically recognized the practice and pointedly refrained from saying that it is illegal. Moreover, there were no allied protests of the German execution of hostages throughout the war. Most tellingly, in the 3000-plus war crimes trials in Europe after the war, German commanders who gave the orders to kill hostages in the 15 or 20-to-1 ratio were not prosecuted.

However, in the Hostages Case — the trial at Nuremberg of William List and others — the US Military Tribunal held that the killing of 100 hostages for each German killed lacked proportionality. The 100-to-1 ratio only pertained to a few places including the Balkans. By comparison, the ratio of Palestinians killed compared to Israelis in the recent Gaza War was 98-to-1.

Let us look at the Gaza War in light of the concept of justification as it applied during World War II. For the past seven years the Hamas political organization in Gaza has been firing rockets into Sderot and neighboring Israeli communities west of the Negev. The rockets have zero accuracy even if directed at military targets — which they are not. The rockets are fashioned from common metal pipes filled with explosives and propellants. The fuel is made of fertilizer and sugar. The rockets are built in simple metal shops and garages. The rockets that descend upon Israel bring unspeakable terror but not much destruction. As of March 2008 more than 500 people had been wounded by the attacks; miraculously only twelve had been killed. However, the townspeople have lived in fear of the rockets, and have confined themselves most of the time to shelters. The bombardment of undefended towns and villages is one of the oldest codified war crimes; it was prohibited by the Hague Convention of 1907.

Imagine for a moment if U.S. cities and towns near the Canadian and Mexican borders were hit by similar rockets fired by radical terrorist groups in Canada and Mexico. Would the United States tolerate such attacks for seven years? Or even seven days?

Israel’s pent-up frustration over the rocket attacks erupted in a sudden military invasion of Gaza on December 27, 2008. Insofar as the invasion was a police action to rid Gaza of rockets, rocket launchers, and rocket factories, there was no war crime. But at the same time the Israeli Air Force dropped many hundreds of white phosphorus bombs indiscriminately over the residential areas of Gaza. I found the televised pictures of the bombs lighting up the night sky over Gaza to be eerily beautiful, and I had to check myself to reevaluate what I was seeing: in reality, these incendiary weapons were setting homes on fire and burning the skin of countless terrified people. The victims suffered third-degree burns that doctors reported went inches deeper into the flesh than ordinary fire. A spokesperson for the Israeli Defense Forces added insult to injury by flatly denying that phosphorus was used.

When a sniper killed a German soldier on patrol, it was clear that the marksman had been aided actively by his neighbors who assisted and harbored him. The sniper was also aided passively by other townspeople who did nothing to stop him. The same can be said of the people of Gaza who have enabled the rocket launchings by Hamas. The concept of collective responsibility applies to the civilians in German-occupied towns as it applies to the civilians of Gaza. Neither group is blameless.

If the two situations are factually analogous, why did the Fourth Geneva Convention of 1949 outlaw the defense of justification? The change is due to the demise of the concept “occupied territory.” In the usual meaning of that term, a territory is occupied as the result of a war of conquest. But such wars are now illegal: conspiring to start a war of conquest is a “crime against peace” under the Nuremberg decisions. Thus we can conclude that the laws of war do not allow belligerent occupation, and since belligerent occupation is itself illegal it follows that justification, reprisals, and collective responsibility no longer apply. (Yet experts may wonder whether this logic improperly intermingles jus ad bellum with jus in bello.)

In 2005 two major things happened in Israel. The Supreme Court of Israel declared that the Gaza Strip was territory seized during warfare, and Israeli settlers and military forces pulled out of Gaza. So an argument can be made that Gaza was not “occupied territory” when Israel attacked in December 2008. But a response to this argument could be that despite disengagement Gaza remains under Israeli military control. Israel maintains total control over the air and sea space of Gaza, it controls movement of persons and goods between the West Bank and Gaza, and controls taxation of Gaza residents. And here I end with a question: are these Israeli controls tantamount to occupation?



Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that a reconstituted military commission at Guantanamo Bay set up to only prosecute aliens would necessarily violate bilateral treaties, create a "denial of justice" for aliens under customary international law, and violate principles of human rights law established by treaty and custom....

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Advisers to President Obama are reportedly considering a revamped military commission to prosecute a few of the detainees presently held at Guantanamo Bay, Cuba. If such a commission is constituted, the President wants to have newly revised procedures that can assure fairer trials than those that might have occurred under the 2006 Military Commissions Act. Other detainees would be prosecuted in a federal district court with full procedural safeguards. This is generally admirable. Nevertheless, for reasons unknown, it is evident that the President is not receiving adequate legal advice with respect to international law, advice that could be forthcoming even from some of the leftover lawyers from the Bush Administration who still walk the halls in DOJ, DOD, and State.

There is enough guidance in the majority opinion of Justice Stevens in Hamdan v. Rumsfeld for a careful lawyer to realize that common Article 3 of the Geneva Conventions “is applicable here, and ... requires that ... [a detainee] be tried by a ‘regularly constituted court affording all the judicial guarantees’” recognized under customary international law and that, as Justice Stevens noted, Article 14 of the International Covenant on Civil and Political Rights, among other instruments, sets forth “basic protections” regarding due process. Justice Stevens also noted that “regularly constituted” courts include “‘ordinary military courts’ and ‘definitely exclud[e] all special tribunals,’” that regularly constituted means “‘established and organized in accordance with the laws and procedures already in force.’” Justice Kennedy confirmed that common Article 3 applies as “binding law,” that a “regularly constituted” court “relies upon ... standards deliberated upon and chosen in advance,” and that a violation of common Article 3 is a war crime. Justice Kennedy added: “[t]he regular military courts in our system are the courts-martial” and they “provide the relevant benchmark.”

As I noted in my recent book Beyond the Law, a military commission created post hoc and as a special military tribunal under the Military Commissions Act (MCA) (which was not “already in force” or “chosen in advance”) simply could not meet the “regularly constituted” test and would necessarily violate common Article 3. A violation would be even more clear with respect to creation of a new special tribunal in 2009 designed merely to prosecute a few detainees while others are sent to a federal district court. As noted in the book, under venerable Supreme Court doctrine, Geneva law takes primacy as law of the United States over subsequent federal legislation such as the MCA. There is no valid reason to support a claim that President Obama should create a new special tribunal and violate common Article 3, which would be a war crime. An additional war crime can occur under the 1907 Hague Convention No. IV if one would “declare abolished, suspended, or inadmissible in a court of law the rights ... of the nationals of the hostile party” to an international armed conflict. There is no valid reason for doing this either.

The book also documented additional violations of international law that would occur with respect to a military commission created under the MCA, some of which were addressed in Hamdan and as far back as December 2001 when I was on a panel with John Yoo addressing the new Bush military commission during a national workshop for federal judges and when some of the improprieties a few of us had warned about were outlined in a lengthy December 26th New York Times article. One of the problems that the Supreme Court addressed is that a military commission at Guantanamo would not operate in a theater of war or in a war-related occupied territory and, therefore, could not be properly constituted as a law of war military commission. We are not sure what procedural changes might be contemplated by Obama's advisers, but the MCA presented significant problems concerning the need for limitation of offenses to those under the laws of war, the right to counsel of one’s choice, confrontation of all witnesses against an accused, and the right to review.

More significantly, any tribunal that would only prosecute aliens would necessarily violate bilateral treaties with the state of nationality of the detainees that require equality of treatment, create a “denial of justice” for aliens under customary international law, and violate human rights law (treaty-based and customary) that requires “equality before the law” and “equal protection of the law” as well as the prohibition of national origin discrimination.

Why would Obama's advisers even consider setting up a special post hoc tribunal merely for a few aliens, knowing that other aliens would be prosecuted in a federal district court and knowing that such a tribunal would result in unavoidable violations of customary and treaty-based laws of war and human rights law? Why place all who would be directly involved in the creation and operation of such a tribunal in harm’s way as violators of international law? Knowing the significant harm to our foreign policy interests connected with the Bush military commissions, why would anyone advise that we should prosecute a few aliens in a special military commission at Guantanamo? Are the advisers concerned that a special tribunal would only prosecute Muslims at a place that engenders outrage in the Muslim world and symbolizes inhumanity in much of the rest of the international community?


Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

JURIST Guest Columnist Don Rothwell of Australian National University College of Law says that until the United States is prepared to acknowledge that it has a continuing responsibility for some of the Guantanamo detainees once they have been released and shows a willingness to resettle at least some in the US, the future for many will remain deadlocked....

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The future of 17 Chinese nationals of Uighur ethnic origin at Guantanamo Bay and the increasing efforts of the US to persuade various countries around the world to agree to accept them for resettlement starkly highlights some of the intractable legal issues US policy towards Guantanamo Bay detainees has created. The Guantanamo Uighurs, ethnically Turkic Muslims who populate the northwest of China, have been detained since early 2002. They had left China for Afghanistan in 2001 fleeing persecution from Chinese officials, only to have their village bombed in mid-October 2001 by allied forces during Operation Enduring Freedom, after which they travelled to Pakistan where they were arrested by local security forces and turned over to the US military. There has never been any credible evidence that the Uighurs actively supported either the Taliban or Al Quaeda, and while the US maintains that in 2001 they attended a militant training camp in Afghanistan, the evidence for this claim appears flimsy. It is therefore not surprising that once the US Combatant Status Review Tribunal began reviewing the basis for ongoing detention of Guantanamo detainees, that the Uighurs were among the first who were cleared for release. However, unlike many of the detainees that were allowed to leave Guantanamo from 2004 onwards the Chinese nationality of the Uighurs has been a significant issue.

The Uighurs have been engaged in ongoing conflict with Chinese authorities over the status of their region and have faced religious persecution and efforts to integrate them into the wider Chinese population. Following demonstrations in February 1997 Amnesty International reported examples of serious human rights abuses against the Uighur peoples – including arbitrary detention, unfair trials, torture, and executions. The Chinese government has used the term ‘separatism’ to refer to the activities of the Uighurs, and has actively sought the return of some Uighurs who live outside of China on suspicion of committing terrorist acts. Further reports that some Uighurs were tortured and executed after their return to China post 9/11 caused the United States to become wary of repatriating the Guantanamo Uighurs back to China and to this day it has refused to accede to any Chinese requests of this kind. This has placed the US in a particular quandary as effectively the Guantanamo Uighurs have been recognised as refugees entitled to asylum protection because they face ‘a well-founded fear of persecution’ as provided for under the Refugees Convention.

This dilemma for the Obama Administration has become all the more urgent in light of the commitment given to shut Guantanamo down by January 2010. Notwithstanding multiple efforts to secure the transfer of the Uighurs to safe third countries, Albania’s 2006 decision to take five of the detainees has been the only offer to date. Whilst Canada rejected a US request in early June, Australia and Germany are still considering their positions. On June 9, Palau, a small north Pacific island country which has a Compact of Free Association with the US, announced that it had agreed to resettle some of the Guantanamo Uighurs. Ultimately some form of deal may be concluded with Palau agreeing to resettle up to ten of the Uighurs, and Australia and Germany taking the remainder.

One of the issues which third countries need to consider when assessing these requests is how China may respond. In early June, the Chinese Embassy in Canberra indicated in a statement that they considered the “Chinese terrorist suspects” held at Guantanamo Bay to be “members of the terrorist group East Turkestan Islamic Movement” and they “should be handed over to China for proper handling according to law”. That the US agreed to a Chinese request to cosponsor the inclusion of the East Turkistan Islamic Movement on the State Department list of terrorist organizations in the wake of the September 11 terrorist attacks, has only succeeded in further clouding the status of the Guantanamo Uighurs, though there does not appear to have ever been any direct allegation that the detainees were responsible for any terrorist incident in China prior to 2001. As Palau does not maintain diplomatic relations with China, it may be somewhat immunised from any Chinese backlash if it accedes to the current US request. A possible $US 200 million aid package for Palau is no doubt another factor.

Part of the resistance which the US has met with its resettlement overtures has been due to its apparent reluctance to accept that it too has some level of responsibility towards the Uighurs. Notwithstanding successful District Court rulings that the Uighurs should be released, both the Bush and now the Obama Administration have blocked legal efforts by the Uighurs to be released in the US. Plans were well advanced in May to relocate some of the Uighurs to Virginia, but after a Congressional backlash, those plans were scuttled.

The Uighurs are of course not the only Guantanamo detainees whose resettlement after release is at issue. There are approximately 50 current detainees who are eligible for release under plans developed by the Obama Administration and US allies have been approached to assist in their resettlement. Notwithstanding a 4 June EU information-sharing agreement about Guantanamo detainees, the EU position remains that resettlement assistance will only be provided following formal a EU-US agreement providing levels of assurance as to the human rights of the former detainees, and also financial commitments towards their ongoing needs. Such an agreement will only be possible if the US is prepared to make certain concessions, of which the most important is an acceptance that it has a continuing responsibility for some of the Guantanamo detainees once they have been released and that it shows commitment to those responsibilities including resettling some within the US. It increasingly appears therefore that until the US is prepared to acknowledge that ‘Charity begins at home’ then the future for many Guantanamo detainees cleared for release will remain deadlocked.


Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University, Canberra, Australia.

JURIST Guest Columnist Zeray Yihdego of Oxford Brookes University School of Social Sciences and Law says that the UN and the world's powers must act to help stabilize Somalia, too long plagued by clan infighting, lawlessness, regional conflict involving Ethiopia and Eritrea, and now maritime piracy...

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The Transitional Federal Government of Somalia (TFG) claimed victory on June 3, 2009 over Islamist insurgent groups al-Shabaab and Hizbul Islam following the groups’ recent attempts to bring down the TFG. During the first two days of June alone, fierce fighting in Mogadishu resulted in 25 deaths and 70 injuries. Most of those affected were civilians.

Somalia’s various clans and warlords have been fighting against each other and against external actors since the collapse of the Siyad Bare government in 1991. The causes are plenty. Clan mistrust, power discrepancies, and religious differences within Islam are among the most common catalysts. The armed violence has regional and international dimensions, too. This is why the United Nations (between 1992 and 1994) and the African Union (since 2007) deployed peacekeepers and enforcers to help secure Somalia. According to UN reports, Ethiopia and Eritrea (consisting of Egypt, Iran, Libya, Saudi Arabia, and Syria) have also taken part in the hostilities. Disturbingly, foreign fighters are also rumoured to have taken part in the conflict.

As a result of the conflict, tens of thousands of Somalis have been killed, maimed, or forced to flee their homes. According to Refugee International, 3.2 million Somalis (40 percent of the population) are dependent on external assistance. Approximately 1.3 million have been internally displaced and over 400,000 Somalis have sought refuge in neighbouring countries. UN official Mark Bowden said recently that “roughly 45 percent of the (Somali) population is suffering from moderate malnutrition.”

The situation is also exacerbating the troubled relationship between Ethiopia and Eritrea. Both have been accused of fighting a proxy war in Somalia. The endemic problem of piracy off the coast of Somalia has posed a grave threat to maritime security, the international movement of goods, and even to humanitarian assistance. All of these persistent and severe security concerns, caused largely by the incessant lawlessness in Somalia, raise the question whether or not the world community has adequately and responsibly responded to the crisis.

The UN unsuccessfully attempted to intervene in the early 1990s. Dozens of peacekeepers (most of whom were American) had been killed in an insurgency led by former army general Farah Aidid. Although diplomatic efforts have continued, these casualties coupled with other policy goals have caused the major Western powers largely to ignore forceful multilateral intervention efforts intended to secure Somalia, with the exception of the Combined Task Force 150’s (CTF-150) recent anti-piracy operations.

At its founding, the TFG of Somalia was frail and was limited to Baidoa, a city in south-central Somalia where the Somali Parliament was based. In 2006, the government came under concerted attack by the Union of Islamic Courts (USC), led by current president Sheikh Ahmad whose main goal was to establish an Islamic state of Somalia. The USC successfully gained control of most of southern and central Somalia and maintained law and order in a number of cities and towns for a few months. There was indeed calm and order for some time there, the sustainability of which was questionable owing to the fragile situation on the ground. The USC decided to oust the TFG by military force instead of working with it to build a more stable Somalia. Some also blamed the Abdullahi Yusuf led TFG for failing to seize the opportunity for peace and reconciliation.

During that critical time in 2006, the TFG sought help from Ethiopia while the USC was (and still is) backed by Eritrea. The latter has been persistent in denying such allegations, but the UN, the AU, and the US have reiterated their concern over Eritrea’s military and logistical support to the USC (now to Al-shabaab and Hizbul Islam).

Ethiopia justified its initial presence in Somalia with reference to notions of invitation by the internationally endorsed government, and justified its later full-scale military action by asserting self-defence against the jihad declared against it. Some, including the London based think-tank Chatham House, criticized the intervention as legally unjustifiable and unhelpful to efforts toward stability in Somalia. While some countries, including Qatar, called upon Ethiopia to immediately withdraw from Somalia, the UN, the AU, and many western and African governments appeared to support Ethiopia’s actions. In fact, the international community, including the TFG, encouraged Ethiopian forces to stay in Somalia until they could be replaced by AU peacekeepers. African countries were not swift enough to deploy peacekeepers. To date, the African Mission in Somalia (AMISOM) has only 4,300 peacekeepers despite the fact that it is authorized by United Nations Security Counsel (UNSC) Resolution 1744 of 2007 to have up to 8,000 personnel. Resolution 1744 is a Chapter VII measure which authorized AMISOM to operate in Somalia.

While Ethiopia initially said it would withdraw from Somalia within a few weeks of diffusing the threat posed against it, it stayed there and fought the al-Shabaab until January 2009, claiming that it would have been irresponsible to leave the country in a big mess, and that remaining in Somalia was necessary to prevent the revival of the Islamists. The move to prolong the intervention was largely seen as unjustified and unnecessary by Somali and external commentators. Ethiopia was dragged into fierce, unconventional and urban clashes in Mogadishu (and elsewhere) with the Islamists. Human Rights Watch, which seems to be in war of words with Ethiopian authorities, alleged that all the parties to the Somali conflict, including Ethiopian forces, committed war crimes. Ethiopia strongly denies these allegations. Ethiopia’s presence was also widely viewed as the key barrier to peace and reconciliation between the radical and moderate Islamists of Somalia.

The aftermath of Ethiopia’s 2009 withdrawal tells a different tale – that of the beginning of a renewed cycle of armed violence between Somali factions. Since the summer of 2008, a painstaking effort has been made to form an all-inclusive TFG, including the Asmara based Islamist Alliance for the Re-liberation of Somalia (ARS). The moderate wing of the ARS, led by the current president Sheikh Ahmad, joined the process. The Asmara wing of the ARS led by Sheik Aways (who’s featured on UN and US terrorist lists), al-Shabaab, and the recently formed Hizbul Islam fighters refused to take part in the post-Ethiopian intervention unity government. The ARS and al-Shabaab intend to install Sharia law in Somalia. Yet Sheikh Ahmad’s introduction of Sharila law in April 2009 in Somalia, as the BBC put it, “has not appeased the hardline guerrillas”.

The presence of AU peacekeepers in Somalia is one of the key disagreements between the two camps. The TFG views AMISOM as a partner in instilling peace and security in Somalia. Conversely, the opposition, views the peacekeepers as occupiers (or, in the words of Aways, as “bacteria”) that must leave the country. The opposition has thus declared war on the peacekeepers and has targeted and killed them in recent attacks.

But is it really feasible to stabilize Somalia without a regional/international force? Is the declaration of war against peacekeepers compatible with international laws and norms, particularly with regard to UNSC Resolution 1744 of 2007? The answers to both questions are, without a doubt, in the negative. It might be said, however, that the Somalis must deal with their own problems if they wish not to have external support.

Aways returned to Mogadishu in April 2009, soon after the Ethiopian withdrawal. He denounced Mr. Ahmad’s government, saying it was “not elected by the Somali people, ant it is not representing the interests (of) the Somali people.” But the TFG views itself as a legitimate government both nationally and internationally. While it may be difficult to assess the TFG’s popularity among the Somali people, the UN, the AU, the EU, and others have unreservedly endorsed it as a lawful, albeit transitional, government. In support of the TFG, Western donors have recently pledged to raise billions of US dollars for the reconstruction of Somalia.

Regardless, Aways and al-Shabaab refused to enter into dialogue with their former colleague, the incumbent president of the TFG. In early May of this year, al-Shabaab and Hizbul Islam, (with the open support of Aways) intensified their attacks against government forces and AU peacekeepers in Mogadishu and other key towns. They took control over such strategically vital cities as Jowhar and Biodea. Government forces and the peacekeepers have responded to the attacks. On May 22, government forces initiated a large-scale counter-offensive in Mogadishu. AMISOM is not involved in such operations, as its mandate in respect of using force is limited to self defence. The Islamists seemed to gain impetus, but their efforts to topple the TGF have not been without problems. Antagonism from within recently caused an opposition to defect to the TGF, for example.

Civilian suffering has continued to mount. In the last few weeks of fighting alone, more than 200 people (around 80 percent of whom were civilians) have been killed and more than 500 were wounded. At least 60,000 people have been displaced. For this and similar reasons, it is no exaggeration that Somalia is indeed at the crossroads between peace and reconciliation on one side, and total chaos and further bloodshed on the other. Swift action (or restraint, if appropriate), is therefore crucial for all concerned.

On May 20, IGAD deemed the situation in Somalia a “very grave” security concern, condemned Eritrea for arming and backing “the criminal elements in and/or to Somalia.”, and called upon the UNSC to take measures including the imposition of a no-fly zone and a blockade on seaports in order to “prevent the further in-flow of arms and foreign fighters” into the country. It also called upon the Council to impose sanctions against Asmara. On May 22, the AU endorsed the decision of IGAD and reiterated the call upon UNSC to impose sanctions against Eritrea. Eritrea denied the allegations and attributed the information to the work of CIA agents in the region.

Except with regard to the imposition of sanctions, the UN seems to agree with the regional bodies’ assessment of the situation. UN Under Secretary General for Political Affairs B. Lynn Pascoe utterly condemned “the attempted coup on May 9 by Sheikh Hassan Dahir Aweys and Al Shabaab fighters” and indicated the possibility of deploying peacekeepers by the USNC to support AMISOM and the TFG. However, the UNSC only “expresses its concern over reports that Eritrea has supplied arms to those opposing (the government of) Somalia in breach of the UN arms embargo” and “at the loss of life and the worsening humanitarian situation arising out of the renewed fighting.” Western governments, including the White House, reiterated the UNSC’s position and concerns. The UK Minister for Africa, Lord Malloch-Brown, condemned “the attempted coup d’etat by forces opposed to the Transitional Federal Government” and the “assault on the internationally recognized government that has worked hard for peace and reconciliation in Somalia.”

These are, however, words and not deeds. The UN and AU do not seem ready to do anything concrete yet. Deploying UN peacekeepers has not yet been put on the negotiating table, probably due to the hostile attitudes of the parties to the conflict, as indicated in the UN Secretary General Ban Ki-moon’s report to the UNSC, released last April.

Reports that Ethiopia moved its troops into Somalia were openly denied by both the Somali and Ethiopian governments. Indeed, such convoluted problem needs multilateral, versatile and well-thought-out response.

Moving forward, the parties to this conflict must make a responsible move toward peace and harmony. They must cease destructively relying on foreign actors, including both states and non-state-actors. They have to bear in mind the immunity of civilians and AU personnel, and the legitimacy of the UN and the AU. They have to work toward bolstering security institutions in Somalia which will be capable of maintaining law and order in the country.

The world community has to choose the right and responsible options to help out Somalia and to ensure regional and international security there.

The first of these options would involve the swift deployment of a multilateral peace enforcement force in Somalia which could replace or strengthen AMISOM. Securing cities, ports, and airports, and protecting the civilian population, must be among the peace enforcement force’s main tasks. Islamic, African and other interested countries may be of help in providing troops as a matter of urgency. Western countries must also be part of the action in both financial and personnel terms. A change in the attitude and policy of Washington and other leading world powers is now more necessary than ever.

The second option would be to strongly support the TFG and AMISOM, and to punish the spoilers of, and the interventionists in, the transitional process.

The last (and probably the least) option would involve doing nothing but watching as further atrocities and instability sweep the region, such as: the endemic problem of piracy, extremism, and the escalation of internal and perhaps interstate armed violence.

The first option appears to be the most appropriate response owing to the persistency, severity, and the possibly future consequences of the situation. It may not necessarily be the most realistic option, however, unless world powers and the UN make a drastic change in policy. The second option may work if tangible and immediate measures are taken to brace AMISOM. This option seems to be more attractive and less demanding for world powers, but other issues such as the controversy over North Korea’s recent nuclear test and the situations in Pakistan and Sri Lanka may divert attention to the detriment of Somalia and the region as a whole. The first two options cannot be successful without engaging all the parties to the conflict as long as they behave responsibly and humanely. The last option is not morally or legally defensible. It may be thought that whoever wins will stabilise Somalia, but this is a risky strategy for maintaining international security. Even if AMISOM is out as per the demands of Aways and company, it is likely that the havoc will continue. Therefore, the world community must act now!


Dr. Zeray Yihdego is a lecturer in international law at Oxford Brookes University School of Social Sciences and Law

JURIST Special Guest Columnist Asa Hutchinson, former US Congressman (R-AR), DEA director, DHS under secretary for Border and Transportation Security and currently a member of the Constitution Project's Liberty and Security Committee, says that while President Obama's stated intent to limit executive invocations of the state secrets privilege is welcome, Congress should nonetheless enact legislation ensuring that federal judges independently review such invocations...

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During his recent national security speech, President Obama boldly declared that the values enshrined in the Constitution are our best national security assets. In pledging to restore the basic American principles of due process, accountability, and checks and balances, the president identified as a top priority the need to reform the state secrets privilege – a doctrine that allows the executive branch to withhold information requested during litigation if disclosure threatens national security. I served in the executive branch as a top law enforcement official and a former federal prosecutor. While an aggressive approach to national security matters is critical for our nation, it is just as essential that there be oversight and checks on the power of the executive branch in national security when the use of such power impacts every day citizens.

While the president’s commitment to reforming the state secrets privilege is encouraging, his proposed remedy – limiting the occasions on which the executive branch asserts the privilege – falls short. The real solution lies in ensuring that federal judges independently review invocations of the privilege. Congress has begun taking steps towards implementing such reform. Bills are now pending in both houses, and on June 4th, I will testify before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, in support of congressional action to reform the state secrets privilege.

There are two fundamental problems with the state secrets privilege. First, when courts simply defer to assertions of secrecy by the executive branch without independently reviewing the evidence claimed to be secret, there is a significant risk that the government may seek to hide evidence of its misconduct under the guise of protecting national security. This exact situation occurred in United States v. Reynolds, the Supreme Court case that first recognized the evidentiary state secrets privilege. Later declassification of the accident report at issue in Reynolds revealed no state secrets, only evidence of negligence.

Second, the government has used the privilege as a means to foreclose an entire category of litigation, namely lawsuits alleging government misconduct in national security policies, such as wiretapping, detention, and interrogation programs. The result is an unreasonable limitation on access to the courts. Cases involving legitimate constitutional questions on national security programs and illegal surveillance have been dismissed at the outset, without plaintiffs having any opportunity for a day in court to test their allegations.

As the state secrets privilege has evolved into a new type of immunity doctrine, it has compromised our values and created an air of suspicion. The proposed State Secrets Protection Act would enact two important reforms to address these problems. First, the legislation would restore judicial oversight by requiring the executive branch to submit the evidence asserted to be privileged to the judge for an independent review. Second, it would prohibit judges from dismissing cases on the basis of the state secrets privilege at the outset without the opportunity for a review of the evidence.

These reforms would ensure that the courthouse doors remain open, while ensuring sensitive national security information is kept secret. They would also restore accountability and dispel any notion that the government is invoking the privilege as a cover up.

The proposed reforms would also keep us safe. It is important to recognize the difference between judicial review and public disclosure. Federal judges regularly conduct private reviews of evidence, and Congress is capable of devising safeguards to ensure that judicial oversight does not result in public disclosure. Moreover, federal judges are experienced in reviewing sensitive national security information under the Foreign Intelligence Surveillance Act, the Freedom of Information Act, and the Classified Information Procedures Act.

For these reasons, I have joined with the Constitution Project’s bipartisan coalition of policy experts, legal scholars and former government officials in support of the proposed reforms.

The urgency of protecting our national security is clear. But the shadow cast by 9/11 should not forever obscure what is fundamentally American, namely due process, accountability, transparency, and checks and balances. Where Congress can achieve several goals at the expense of none, it should. Judicial review will keep us safe, ensure trust in our executive branch and provide an appropriate check on the executive power bestowed by the state secrets privilege. To achieve these gains, Congress should enact this important legislative reform.


Asa Hutchinson is a former Republican member of Congress from Arkansas, U.S. Attorney, director of the Drug Enforcement Agency, and under secretary for Border and Transportation Security at the Department of Homeland Security. He is also a member of the Constitution Project’s Liberty and Security Committee.

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that North Korea's apparent disavowal of the 1953 armistice ending the Korean War does not negate the continued existence at international law of the legal boundary between North and South Korea...

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Last week the North Koreans issued a statement carried by its official news agency, KCNA, that they “no longer feel bound by the armistice” that ended the fighting in the Korean War of 1950-53. Many media commentators have leaped to the conclusion that the North Korean statement means that the North and South are still at war.

It is technically true that the 38th Parallel that forms the line between the two states was artificially created back in 1950 and, in the absence of any peace treaty, may appear to be something less than an actual boundary between two sovereign states. But international law, I suggest, has a very different take on this issue.

We may begin by considering two other cases where the question is whether a dividing line of some sort is the same as an international boundary. In the Israel-Palestine controversy, Israel has taken the position that the Palestinian failure to establish an “Arab state” when invited to do so by the United Nations in 1947 means that the Palestinians today—in the West Bank or Gaza—have no claim to inviolable borders. Israel has accordingly encroached on Palestinian territory as demarcated by the United Nations by sponsoring the development of Israeli settlements and elbowing out the Palestinians whose farms unhappily were in the areas occupied by the Jewish settlers. Israel has also erected a Wall that has been condemned as illegal by the International Court of Justice, not because a state cannot place a high barrier on its boundary, but because Israel has placed the wall primarily on the territory the Palestinians were given by the United Nations in 1947

Now consider the situation between China and Taiwan. Although there is a natural division between the two entities, namely the Strait of Taiwan, both sides claim that there is only one indivisible China. Taiwan claims sovereignty over all China under the name “Republic of China”; mainland China agrees, but claims that it is the sole governing power under the name “People’s Republic of China.”

Neither the Korean, nor Palestinian, nor Chinese cases have been settled by a treaty of peace between the contesting sides. Historically there have been hundreds of disputed boundaries between states that were not settled by a formal Peace Treaty. But international law has a 4000-year-old principle that defines a state as having, among other things, a definite territory. This territorial principle throughout history has created a presumption in favor of a definite boundary between entities that claim sovereign power. Once a presumption is in place, it is satisfied by the best available evidence. Often the best evidence has been a natural boundary such as a river or a deep valley. Evidence has also included the oldest maps of the region, on the presumption that they were taken by both sides as depicting the boundary. A boundary could also be presumed from stones placed as mile-markers or by the records of surveyors.

Of the three cases we are presently considering, the presumptive territoriality principle of international law would seem to be the strongest as between North and South Korea. Both North and South Korea regard themselves, and regard each other, as states. Unlike China where both sides regard themselves as a single state, or Palestine where for reasons of its own Palestine never became a state, North Korea and South Korea are distinct territories under international law. Hence there must be an international boundary between them. The 38th Parallel appears on all maps as indicating the precise boundary.

The armistice which North Korea now disavows was, for boundary purposes, nothing more than a piece of evidence establishing the 38th Parallel. That Parallel constituted the original line of aggression between North and South in 1950 and continued through the armistice agreement up to the present time.

The international law principle of territoriality of states cannot be altered by the action of a single state. (If it could, then we would be talking about “exceptionalism” or some other Know-Nothing argument that in effect denies the existence of international law.) It is true that North and South Korea, or any two states sharing a common boundary, can alter the boundary by mutual consent. But North Korea cannot unilaterally alter its boundary with South Korea.

Therefore it is quite curious why North Korea disavows the armistice. Is it saying that it is free to attack South Korea because any such attack would not cross an international boundary and hence should be regarded as an internal conflict? Such a claim would have no effect whatsoever on the boundary nor upon South Korea’s right of self-defense that is inherent in all states. At most it would mean that North Korea is estopped to argue that South Korea would be committing illegal aggressive warfare if it ignores the border and attacks the North.

Curious. And irrational. North Korea is either counting on a display of irrationality to intimidate neighboring states, or it simply is unaware of the rules of international law that will be respected and enforced by all states if North Korea attempts to act upon its threats.


Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.

JURIST Guest Columnist Jonathan Tracy of the National Institute of Military Justice at American University Washington College of Law says President Obama's decision to reconstitute the US military commissions system runs contrary to basic American legal values and revitalizes the military tribunals structure absent any military need....

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Four months later and we still cannot escape President Bush's disastrous detention policies. On May 15, President Obama reversed his policy to continue Bush's flawed and failed military commissions. Despite promising to expand due process rights, the commissions will remain inherently flawed and contrary to our nation's legal principles and values. Commissions serve as a way to shroud prosecutions in secrecy and keep certain constitutional rights in check. The changes proposed so far do little to ensure alleged terrorists are granted fair trial rights this country has long viewed as essential. Constitutional rights that terrorists like Ramzi Yousef, the mastermind behind the 1993 World Trade Center bombing, enjoyed are discarded in commissions. More significantly, however, reconstituting commissions means continuing the use of military tribunals absent military need.

Only a military necessity justifies the use of military means. For example, to lawfully resort to force a State must have no other options.

Similarly, during battle, a military may not exert any individual use of force not "imperatively demanded" by the situation. Here, the government intends to exert military means through a military system of justice. Under the Uniform Code of Military Justice (UCMJ), courts-martial, the keystone of military justice, are needed to dispense justice for our service members to maintain good order and discipline in our fighting force. The UCMJ also authorizes war criminals to be tried by military commission. A war criminal is someone accused of violating the law of war on a battlefield. In that situation, a military necessity exists - our military must deliver swift and fair justice in a theater of war for crimes committed during war. Our law and values long respected the notion that military justice is a narrow exception to civilian justice.

I do not question the evil intent or actions of the masterminds of the
9/11 attack. These are barbaric acts that are all rightly criminalized and subject to harsh punishment under U.S. criminal law. Unfortunately, after 9/11 the Bush administration immediately and retroactively characterized the situation as a "war" where the criminals would be subject to military justice. There is no legal precedent justifying terrorist's trial by military commission. Before 9/11, the last time the U.S. used commissions was during and immediately after WWII. Those convicted after WWII were accused of significant and heinous violations of the law of war. In contrast, al-Qaeda operatives are accused mostly of crimes not considered war crimes before the Military Commissions Act.

Terrorism is only a war crime when committed in an active theater of armed conflict. Rhetoric aside, 9/11 did not amount to an armed conflict under international law. Armed conflict requires "protracted armed violence" between two or more states or "protracted armed violence" within one state against "organized armed groups." War should not be a condition the government can invoke at its whim. The government may not distort the definition of armed conflict beyond significance. Many of the detainees facing a military commission, like 9/11 mastermind, Khalid Sheik Mohammed, were captured far from a battlefield accused of crimes not associated with a war. Mr. Mohammed should face harsh justice, but no one in the current or previous administration has ever demonstrated that he could not be prosecuted in a civilian court. Until the President can demonstrate that a civilian court cannot handle these cases, we should not discard them for military tribunals. The brutal and heinous nature of the crime does not justify the use of military means.

Justice is about more than simply levying penalties on wrongdoers. The system of justice used by a given society is a reflection of its values.

The policies and rules the United States is implementing in the military commissions do not reflect our true values. It is time to end this poor attempt at a justice system and try the detainees in well-respected and established courts of law.


Jonathan Tracy is the assistant director of the National Institute of Military Justice at American University Washington College of Law in Washington, D.C., and a former Army Judge Advocate.

JURIST Guest Columnist Wes Rist of the University of Pittsburgh School of Law says that recent passage by Spain's lower house of parliament of a non-binding resolution aimed at limiting the scope of the country's universal jurisdiction may not be a step backwards in international criminal law, but rather may signal the beginning of the end of an effort that served its purpose and is now properly dying out from lack of need.....

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When the International Criminal Court (ICC) emerged in 2002 as an actual organization in the international community, many felt it represented one of the best chances for an end to impunity for human rights abusers around the world. Largely due to the seemingly tireless work of Chief Prosecutor Luis Moreno-Ocampo, most still see the ICC as a steadily growing check on the unchallenged abuse of international humanitarian and human rights law by military or political leaders and even non-state actors. The coming into being of the ICC has not, however, uprooted other evolutionary offshoots in international criminal law that saw a resurgence during the long preceding period when the idea of a permanent international criminal court was scoffed at by the global community as a pipe dream held only by starry-eyed international lawyers.

One of these offshoots, universal jurisdiction, is actually a centuries-old legal principle that was modified and adapted to the modern international setting. Originally designed to address hostis humani generis, the “enemies of all humanity” found in pirates in the 1700s and arguably later expanded to include other non-state actors such as slave traders and hijackers, the modern theory has developed two distinct branches: conditional and absolute jurisdiction. Conditional jurisdiction holds that the accused must be present in the state for the prosecution to move forward, while absolute jurisdiction gives the state the right to pursue any individual, regardless of their location, for criminal violations that fall within the authorizing legislation.

Several countries experimented with absolute universal jurisdiction legislation in their domestic systems, and in the 1990s a series of cases began to move through domestic courts that attempted to initiate criminal proceedings against individuals who failed to meet any of the three traditional justifications for prosecution by a state: territoriality, active nationality, and passive nationality. Perhaps the most famous of these cases was the October 1998 detention of former Chilean dictator Augusto Pinochet by British officials upon the submission of an extradition warrant from Spain. The “Pinochet experience” ended in a draw, as the then-UK Home Secretary preempted an apparent judicial willingness to extradite Pinochet by finding that the former dictator, then aged 83, was medically incapable of withstanding trial and granted him leave to return to Chile.

But the evolution of modern universal jurisdiction legislation didn’t end there. Cases continued to develop in domestic legal systems and even before the International Court of Justice, which considered the doctrine in the 2003 case of Democratic Republic of Congo v. Belgium. Belgium’s universal jurisdiction statute was modified after the Bush administration brought significant pressure to bear on the Belgian government after a case against U.S. General Thomas Franks for alleged war crimes in Iraq looked to be moving forward. The Belgian law was eventually replaced entirely by a much more limited law on extraterritorial jurisdiction. German prosecutors have traditionally been extremely conservative in applying the Völkerstrafgesetzbuch law which gives German courts authority over the public international law crimes of genocide, crimes against humanity, and war crimes. This conservatism is clearly illustrated by the fact that German prosecutors have opened very few investigations and have not initiated a single prosecution. Canada passed the Crimes Against Humanity and War Crimes Act in order to meet domestic requirements imposed by its ratification of the ICC’s Rome Statute, and academics have argued that this gives the country an absolute universal jurisdiction statute to apply. The Canadian Department of Justice, however, has clearly indicated that any use of the law in Canada would fall under the conditional universal jurisdiction theory, requiring the accused to actually be present in Canada. Article 689-11 of the French Criminal Procedure Code allows for the prosecution of individuals indicted for crimes against humanity, war crimes, genocide, or serious breaches of the Geneva Conventions. It too, however, recognizes only conditional universal jurisdiction, requiring that the accused be “usually resident” in France. Standing alone as one of the last enforcers of absolute universal jurisdiction, the Spanish judiciary has maintained its authority via Article 23(4) of the Organic Law of the Judicial Branch to initiate prosecutions against any individual alleged to have violated public international law instruments to which Spain has subscribed.

A new non-binding resolution from the Congress of Deputies, Spain’s legislative lower house, is now pushing for a restriction on Article 23(4) that would require a clear connection to Spain and an absence of a current investigation in the domestic country in question. The restrictions, which seem to have support in the legislative branch of Spain’s government, would reduce Spain’s procedural rule allowing for open-ended investigations of violations of public international law to a more traditional conditional universal jurisdiction provision. As the opposition Popular Party presented the resolution and Spain’s governing Socialist Party has previously indicated their favor in limiting Spanish courts’ active use of the universal jurisdiction principle, it seems likely that the law will eventually come into effect.

Human rights groups have strongly protested the move, alleging that any restriction on the Spanish judiciary’s ability to pursue these cases will result in an increase in impunity for human rights abusers. As a strong proponent of international criminal justice, I share their concern, but as a legal scholar, I think there is validity in asking whether this is actually a step backwards in international criminal law, or simply the ending of an evolutionary offshoot that served its purpose and is now dying out from lack of need. Despite claims to the contrary, changing the Spanish law would not end the use of universal jurisdiction. By Amnesty International’s own count, over 125 nations have some type of conditional universal jurisdiction over human rights abuses. Advocates' greatest worry appears to be that the Spanish court is the one that makes the news regularly and puts the issue in the public spotlight, often forcing governments to take some type of political action, if only to avoid having Spain issue an arrest warrant for the individual in question.

While publicity about impunity for international human rights abuses is important, international criminal law is evolving in its own right along a more unified path with the growth of the ICC. There are arguments in favor of seeing a reduction in absolute domestic universal jurisdiction statutes as we move along that path. While Spain’s prosecutions do generate media attention on human rights issues and can prompt government action, it logically follows that a push for all nations to adopt absolute universal jurisdiction legislation would result in a much more confused situation where multiple states, at the discretion of judges or prosecutors, could pursue criminal proceedings against alleged human rights abuses.

On the surface, this doesn’t seem like a bad idea, but one of the strongest and perhaps longest lasting objections to the ICC is the fear that prosecutions would become motivated by political goals rather than an actual desire for justice. That potential for political abuse of international criminal law is exponentially increased in a world where dozens of nations can exercise absolute universal jurisdiction at their own discretion. The ICC has repeatedly demonstrated its ability to resist such political calls, both from the UN and from outside actors, and it is more reasonable to expect governments around the world to develop an institutional trust in the ICC than it is for them to accept the prosecution of their own citizens, let alone their former leaders, by other domestic systems.

In addition, there is a strong argument that the international community needs to work together to address the not-insignificant challenges facing international criminal law and the ICC. Encouraging the proliferation of absolute universal jurisdiction legislation would have the effect of splintering efforts in holding international wrongdoers accountable for their actions, rather than uniting the international community behind a common system, a common organization, and a common goal.

The challenges facing advocates seeking an end to all impunity for human rights abusers require nations to act together. Spain by itself will never be the reason that individuals fear to perpetrate human rights abuses. Neither will a dozen or even a hundred nations with similar statutes, each acting alone. Only when the entire international community makes it clear that, regardless of a perpetrator's position or office, genocide, crimes against humanity, and war crimes are unacceptable, and agrees to enforce that stance through the ICC, will the possibility of impunity dwindle. And perhaps for that to happen, absolute universal jurisdiction rules must go the way of the dodo and make room for new evolutionary developments in international criminal law.


Wes Rist is an Adjunct Professor and Assistant Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He was a member of JURIST's student staff from 2004-2006, and served as JURIST's International Law editor from 2005-2006.

JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the US Supreme Court's ruling in Ashcroft v. Iqbal suggests that the Court may be trying to set up a system wherein lower level officials can be held criminally liable for carrying out orders administered to them by higher ranking officials who, in turn, will be let off scot-free.....

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There is an old military adage that there are “different spanks for different ranks.”

It appears that the 5-4 Supreme Court majority in Ashcroft v. Iqbal, decided Monday, went out of its way to suggest that the adage also applies to so-called Bivens claims - civil constitutional claims for mistreatment by allegedly lawless public servants (Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)). Those of us who seek the criminal prosecution of high-level US civilians or military generals for torture and cruel, inhumane, or degrading treatment can only hope that another slim majority of the court does not go down the same path in criminal prosecutions under the Federal Criminal Code or the Uniform Code of Military Justice. The effect of that would be to say that the uniformed soldiers who did the bidding of the high-level civilians and military generals may be court-martialed, serve time, and be dishonorably discharged, but that the high-level civilians who orchestrated such crimes are somehow above the law.

In the months following 9/11, Javaid Iqbal was arrested on criminal charges and detained by federal officials under restrictive conditions at the Metropolitan Detention Center in Brooklyn, New York in the Administrative Maximum Special Housing Unit (ADMAX SHU), which was deplored by the Inspector General in a 2003 Department of Justice report. Iqbal pleaded guilty to various criminal charges relating to false documentation (but not to any terrorism charges), served time, and was ultimately deported to his home in Pakistan. During the pendency of this, Iqbal filed a Bivens claim against several federal officials including former Attorney General John Ashcroft and current Director of the Federal Bureau of Investigation Robert Mueller. He alleged that they had designated Iqbal a person “of high interest” on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments. He also alleged that the FBI, under Mueller’s direction, arrested and detained thousands of Arab Muslim men as part of its September 11th investigation. Furthermore, he alleged that Ashcroft, Mueller, and others knowingly, willfully and maliciously agreed to subject Iqbal to harsh conditions of confinement as a matter of policy, solely on account of the factors prohibited by the first and fifth amendments and without asserting any legitimate penalogical interest. Finally, he alleged that Ashcroft was the policy’s “principal architect” and Mueller was “instrumental” in its adoption and execution.

The federal officials asserted “qualified immunity”, which was rejected by the District Court. The officials then appealed, asserting the collateral order doctrine. The Second Circuit affirmed, concluding that Twombly’s “flexible plausibility standard”, which obligates a pleader to amplify a claim with factual allegations where necessary to render it plausible, was inapplicable in the context of petitioners’ appeal. The Second Circuit held that Iqbal’s complaint was adequate to allege petitioners’ personal involvement in discriminatory decisions which, if true, violated clearly established constitutional law.

Justice Kennedy, writing for the majority (Roberts, Alito, Thomas, and Scalia) stated that Iqbal’s account of his prison ordeal could, if proven, demonstrate unconstitutional misconduct by some governmental actors. But the majority went on to state that the allegations and pleadings with respect to these actors were not before the Court today. Rather, the majority viewed that the case as turning on a narrower question: did Iqbal, as the plaintiff in the District Court, plead factual matter that, if taken as true, states a claim that Ashcroft and Mueller and others deprived him of his clearly established constitutional rights? The majority held that respondent’s pleadings are insufficient.

To get there, the Court first determined the Second Circuit had subject matter jurisdiction because the District Court decision denying a Government officer’s claim of qualified immunity can fall within the narrow class of appealable orders despite “the absence of a final judgment ” (Mitchell v. Forsyth, 472 U. S. 511, 530 (1985)). This was said to be so because qualified immunity — which shields Government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” (Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)) — is both a defense to liability and a limited “entitlement not to stand trial or face the other burdens of litigation” ( Mitchell, supra, 472 U. S., at 526). Provided it “turns on an issue of law,” id., at 530, a district-court order denying qualified immunity “‘conclusively determine[s]’” that the defendant must bear the burdens of discovery is “conceptually distinct from the merits of the plaintiff’s claim” and would prove “effectively unreviewable on appeal from a final judgment.”

Turning to the Bivens claim, the majority noted that in the limited settings where Bivens does apply, the implied cause of action is the “federal analog to suits brought against state officials under Revised Statute §1979, 42 U. S. C. §1983” (Hartman v. Moore, 547 U. S., at 254, n. 2. Cf. Wilson v. Layne, 526 U. S. 603, 609 (1999)). Based on the rules established by precedent, Iqbal correctly conceded that Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior (Iqbal Brief 46 (“[I]t is undisputed that supervisory Bivens liability cannot be established solely on a theory of respondeat superior”). See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 691 (1978) (finding no vicarious liability for a municipal “person” under 42 U. S. C. §1983); see also Dunlop v. Munroe, 7 Cranch 242, 269 (1812) (a federal official’s liability “will only result from his own neglect in not properly superintending the discharge” of his subordinates’ duties); Robertson v. Sichel, 127 U. S. 507, 515–516 (1888) (“A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties”).) Because vicarious liability is inapplicable to Bivens and §1983 suits, the majority stated that a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.

The key to the majority’s thinking is in a passage which states:

[Iqbal] argues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” Iqbal Brief 45–46. That is to say,respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

Having rejected the presentation of “supervisory liability” of Iqbal, the majority analyzed Iqbal’s complaint under the two-pronged Twombly test and stated that:

Under Twombly’s construction of Rule 8 of the Federal Rules of Civil Procedure, we conclude that respondent’s complaint has not “nudged [his] claims” of invidious discrimination across the line from conceivable to plausible.

Justice Souter in his dissent joined by Breyer, Ginsburg and Stevens stated:

According to the majority, because Iqbal concededly cannot recover on a theory of respondeat superior, it follows that he cannot recover under any theory of supervisory liability... The majority says that in a Bivens action, “where masters do not answer for the torts of their servants... the term ‘supervisory liability’ is a misnomer,” and that “[a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ibid. Lest there be any mistake, in these words the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely. The nature of a supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects.

In this sense, on remand, some lower level governmental officials may be liable to Iqbal for his treatment (different spank) but not Ashcroft and Mueller who were their bosses (different rank).

The majority appears to be sending a signal to the courts below that it seeks to limit “supervisory liability” (at least in Bivens-type cases), thus protecting higher-up officials from facing personal liability for actions done with their approval by their subordinates. If this view of higher-up responsibility were to leach over to the criminal and military law settings in the lower courts and military court-martials, the effect is clear: lower level uniformed and non-uniformed persons may be criminally prosecuted or court-martialed while the higher-ups who set the policy get off scot-free.

Truly different spanks for different ranks. More prosaically, the Supreme Court seems to be suggesting that the other military adage “shit rolls down hill” is going to be applied also in this arena.

The one saving grace for this situation is that the relevant federal criminal statutes and Uniform Code of Military Justice, by their terms, may provide a broader space for higher-up liability than does the Bivens constitutional action. However, it is possible that those low-level persons below who argue that they tortured within the “scope of employment” may continue to be unsuccessful in avoiding conviction while those arguing they “only set policy” on the torture may be found to be able to successfully assert what can only be a constitutional protection.

The problem lies in the power of the higher-ups in their positions to blur the distinctions in a manner that the lower level person is not capable of blurring. The key issue would be whether the statutory and constitutional framework is clear. If the framework is not clear, the higher-ups are more likely to be able to seek protection. It is in this kind of view that we can understand the purposes of the torture memos even better. These memos were an effort to seek to completely blur the statutory and constitutional framework not only to permit torture but, in a kind of double whammy, to also provide a constitutional defense to those at the top who organized the torture. Such high-level civilians or generals would seek to argue that the statutory and constitutional framework was not “clear enough” for them to be guilty.

When we get to the stage of criminal prosecution of these high-level civilians and generals for torture and cruel, inhumane, and degrading treatment, we shouldn't tolerate this line of argument – even if the Supreme Court is so willing to turn a blind eye to lawlessness at the instigation of high-level civilians. The point must be made in any case how clear and limpid the law is in the relevant statutes on the basis of which these individuals are being charged to deter the “I didn’t know.” kind of argument. Ironically, the use of false narrative and shoddy legal analysis in the torture memos may in fact help such prosecution because of the improbable nature of the analysis and conclusions in those memos and – most importantly – the contemporaneous severe criticism of these analyses by other lawyers privy in the former Administration. In this regard, the efforts of the military Judge Advocate Generals, Alberto Mora, other lawyers in the Department of Justice who dissented, Phillip Zelikow and William Taft at State, were all truly noble efforts to ensure that the rule of law is preserved in a time of lawlessness. The attempts to stifle these lawyers' dissents should be part of any evaluation of high-level claims of innocence.

Beyond a reasonable doubt, I do not buy the "different spanks for different ranks" approach. It is an attempt to enshrine a misfeasance/malfeasance distinction based on rank that may have served high-level persons on other occasions, but should not prevail in the face of both statutory and treaty obligations on torture and cruel, inhumane, and degrading treatment. The international law for dereliction of duty holds a leader liable for his own wrongdoing or fault because the leader is expected to take reasonable corrective action upon learning (or, where viewed objectively, the leader should have learned) of wrongdoing by subordinates. According to the international legal standard, the leader's wrongdoing need not be purposeful, as the Court held Monday; it is enough if the leader knows or should have known that subordinates are doing wrong and the leader takes no reasonable corrective action. We add the "should have known” criminal negligence type liability so that the leader is not able to point to his or her own dereliction in failing to become informed as an excuse and the leader must try to keep informed (thanks to Professor Jordan Paust for assistance on these points of leader liability).

In asserting the concept of refluat stercus in a recent article, I attempted to broaden our thinking beyond strict command responsibility or respondeat superior to capture the broader set of possibilities in domestic law in order to vindicate the international legal obligations we have with regard to torture and cruel, inhumane, and degrading treatment. The Supreme Court majority’s effort attempts to try to narrow, in advance of criminal cases, the playing field for decision making. I will have none of that. Our courts should make sure that we do not allow persons we have entrusted with public official status to use the levers of that protected status or agency law to protect themselves in that public structure from criminal liability for their actions. My colleague has written precisely to this point in an earlier JURIST op-ed.

We will see whether, in a future proceeding before the Supreme Court, Chief Justice Roberts and those in the majority will seek to make “context” arguments on the serious international crime of torture to try to absolve high-level civilians or military generals of criminal liability for their acts in orchestrating the policy of torture for which some of the lower-level persons who did their bidding have been convicted. For now, we should look at Ashcroft v. Iqbal as a warning to Americans that our Supreme Court may be trying to set up “different spanks for different ranks.” We fought a revolution to end that kind of privilege of class. Maybe the originalists need to go back and read Thomas Paine and others to remember that no one is above the law.



Benjamin Davis is a professor at the University of Toledo College of Law

JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that President Obama's recent announcement that his administration will reform rather than abolish the military commissions at Guantanamo Bay threatens to undercut his highly-touted efforts to bring change and improve international perceptions of the United States...

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Perception is a funny thing. Markets rise and fall largely on perception - the perception of an economy's strength, a banking system's integrity, a company's relative worth. Lately, our markets have been falling. Perception is similarly key to the success of America's foreign policy. The perception after 9/11 that we were the victims of an unprovoked attack garnered sympathy and support from around the world. But that perception changed after the illegal invasion of Iraq in 2003. Suddenly, the U.S. was viewed as only interested in advancing its own cause in its own way and the rest of the world, including our allies, could go fly a kite.

The military detention center at Guantanamo Bay, Cuba became emblematic of this latter perception and in many ways cemented it. Widely viewed as a "legal black hole" into which those captured in the global war on terror were dumped, the legal process afforded detainees at Gitmo was far less than that required by the Constitution, the Geneva Conventions, or regular military law. Military commissions established by executive order effectively stripped away a defendant's right to challenge his detention, introduce or rebut reliable evidence, call witnesses or even consult with legal counsel of his own choice. President Obama railed against this injustice as a Senator and cheered the Supreme Court when it consistently rebuked President Bush's repeated attempts to legitimize his treatment of detainees.

Once in the White House, President Obama ordered the closure of the detention facility by January 2010 along with a review of all pending cases and procedures. Everyone anticipated that this was the beginning of the end. That perception, perhaps a projection of wishful thinking in retrospect, appears to have been ill-founded. Consequently, the President's recently-announced decision to fix the military commission process in Gitmo instead of dumping it altogether was shocking. Especially in light of how the world and our allies view the entire tangled mess.

The whole point of the President's goodwill tours abroad has been to repair America's image. Again and again, we have been told to expect nothing substantive from these trips because their main purpose is to restore the world's faith that the oldest democracy had not in fact lost its moorings but had returned to the family of nations that treat people with dignity, no matter what their national origin may be. Now, to resurrect the flawed military commissions of Gitmo is to simply throw that entire effort out the window. No matter what reforms are put in place to advance the rights of defendants, and there are many that could be so crafted, Gitmo is still Gitmo. Because of that inescapable fact, perceptions of injustice and cruelty are equally inescapable. An Article III federal court, with all the accompanying defense rights, could be located there, and if it's renamed a military commission and put at Gitmo it wouldn't make a dime's worth of difference. America's reputation as a defender of human rights and the rule of law would remain tarnished by association.

True, there are prickly logistical and diplomatic issues with returning detainees to their countries of origin or third states. Truer still, no one can politically stomach the prospect of terrorist suspects, no matter how innocent they are, being released into the U.S. But that doesn't mean that Gitmo is the only answer. The Geneva Conventions require that states afford the same legal process to detainees that they afford to their own troops - the underlying theory being that each state will treat its own troops with a certain minimum level of decency. America's Uniform Code of Military Justice is the envy of militaries around the world and widely regarded as providing the best and most flexible legal process for armed forces anywhere.

President Obama can easily use this mandate and this process to solve this problem. Both the detention facility and the military commissions at Gitmo need to be closed down. No good can ever come from retaining them - whatever their ultimate form. He doesn't have to ship detainees to Ft. Leavenworth for this to happen. They can be returned to U.S. military bases in Afghanistan - the battlefield that generated most of the 241 current detainees in the first place. Holding on to Gitmo would be analogous to the U.S. retaining prison authority over Abu Ghraib after the prisoner abuse scandals of 2005. The Bush Administration had the good sense to drop that hot potato immediately. Let's hope the Obama Administration follows suit on Gitmo. The President was elected on the promise of change. He must not let that perception of change be undermined so quickly.


Michael J. Kelly is Professor of Law at Creighton University in Omaha, Nebraska, and Chair of the Association of American Law Schools Section on National Security Law. The views expressed here are not those of the AALS.

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that former Vice President Dick Cheney's statements about his direct involvement in the authorization of unlawful interrogation tactics such as waterboarding are clear evidence of complicity in international crime, if not also participation in a criminal conspiracy, and use of those tactics cannot be legally excused by any alleged doctrine of "necessity"....

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Former Vice-President Dick Cheney is chatting about his role in assuring approval and use of manifestly unlawful interrogation tactics such as waterboarding during the eight-year Bush Administration. According to Cheney, he has “[n]o regrets” that he was directly involved in the approval of severe interrogation methods, including waterboarding, and he has admitted that he was involved in helping to get the process cleared by President Bush. Although Bush delegated national security matters to Cheney in the early years and all such matters went through him, Cheney stated that “this was a presidential decision” “and the decision went to the President. He signed off on it.”

On September 16, 2001, Cheney publicly declared that “[a] lot of what needs to be done ... [“on the dark side”] will have to be done quietly, ... using ... methods that are available to our intelligence agencies ... to use any means at our disposal, basically, to achieve our objective.” He added: “we” “have the kind of treatment of these individuals that we believe they deserve.” For the next two years, many of his preferences were effectuated by his top lawyer, David Addington. Moreover, it has been reported that Cheney attended meetings of the National Security Council’s Principals Committee in the White House Situation Room during 2002 and 2003, at which specific tactics such as waterboarding and the “cold cell” were addressed and expressly and/or tacitly approved and abetted. It has also been reported that during this time there was “live feed” or “real time” viewing of parts of actual interrogations, including that of al Qahtani at Guantanamo Bay, Cuba.

According to the Center for Constitutional Rights (CCR), SERE ("survival, evasion, resistance, escape") tactics were being used against detainees at Guantanamo in September 2002 and that, during October 2002, military intelligence interrogators “used military dogs in an aggressive manner to intimidate” al Qahtani. In November 2002, FBI Deputy Assistant Director Harrington reported that al Qahtani had exhibited symptoms of “extreme psychological trauma.” Around the third week in November, he was subjected to what was known as the “First Special Interrogation Plan,” a plan to use tactics later detailed in an 84-page log describing their use during a six-week period. CCR reported that among several tactics used were: threats against his family, forced nudity and sexual humiliation, threats and attacks by dogs, beatings, and the cold-cell or exposure to low temperatures for prolonged times.

Each of these tactics is patently illegal under the laws of war, human rights law, and the Convention Against Torture, among other relevant international legal proscriptions and requirements. As my article The Absolute Prohibition of Torture documents, death threats, use of dogs to create intense fear, beatings, the cold cell or a related inducement of hypothermia, and waterboarding are each manifest forms of “torture” that are absolutely prohibited under all circumstances and regardless of the status of the victim. In fact, there are 29 U.S. judicial opinions and 7 U.S. executive Country Reports on Human Rights Practices, among other cases and materials, recognizing that waterboarding and related inducements of suffocation are “torture.” If they were not torture, they would also be absolutely prohibited as cruel, inhuman or degrading treatment, along with the other tactics mentioned.

Cheney’s direct involvement is clear evidence of complicity in international crime, if not also participation in a criminal conspiracy. As documented in my article, criminal complicity can occur when a person is aware that his or her conduct can or will assist or facilitate conduct of a direct perpetrator, such as use of waterboarding, the cold cell, and dogs to instill intense fear. He does not need to know that these are criminal or even “torture.” In any event, it has been reported that when Cheney found out that a CIA Inspector General's report warned that several such tactics were criminal, he became irate and ordered the Inspector General to his office. As the treaty creating the International Criminal Court also declares while reflecting customary law, “a mistake of law as to whether a particular type of conduct is a crime ... shall not be a ground for excluding criminal responsibility.” (Rome Statute of the ICC, art. 32(2)).

What is Cheney’s apparent excuse? He claims that there was a need to engage in the illegal tactics, but others have affirmed that there was no need to engage in illegal interrogation tactics and that, on the contrary, it was well-known by professionals that reliable intelligence must be obtained by lawful means of interrogation. Furthermore, it is well-understood that under every relevant treaty-based and customary international law there is no such thing as a necessity defense with respect to outlawed tactics that are torture or cruel, inhumane, or degrading treatment. Such forms of ill-treatment are strictly prohibited in all circumstances. More generally, it is well-understood that the laws of war are to be strictly applied during war when our national security is seriously threatened by enemies who have killed and will kill our nationals in the future.

Some have argued that there is a common law necessity defense that might be available if conduct was actually necessary. One of the August 1, 2002 Bybee memos made this claim when citing United States v. Bailey, 444 U.S. 394 (1980). The Bybee memo failed to note, however, that the Supreme Court’s opinion expressly warned that “[i]f there was a reasonable, legal alternative to violating the law ... the defense will fail” and the defendant must prove “that given the imminence of the threat, violation of ... [a law] was his only reasonable alternative.” 444 U.S. at 410-11 (emphasis added). Whether or not a threat of a major attack continued each year for eight years and was always imminent, reasonable legal alternatives with respect to time-honored forms of interrogation designed to obtain reliable intelligence were clearly always available. In fact, the CIA IG's report declared that there is no evidence that criminal tactics stopped "any credible threats" and it is known that lawful forms have often worked faster and more reliably against high-level al Qaeda detainees, sometimes within an hour or a little longer. Thus necessarily, a judge must rule that, as a matter of law, the alleged necessity defense is unavailable and that the fact that a few secreted files might indicate whether torture led to useful information in a given instance is legally irrelevant.

Additionally, as a matter of law, the defense is not available if relevant law sets an absolute standard, such as the various treaty-based and customary international legal prohibitions of torture and cruel, inhumane, or degrading treatment in all circumstances. Furthermore, as a matter of law, both treaty-based and customary international law, as supreme federal law under the U.S. Constitution, will trump inconsistent common law whether or not there might be such a common law defense to ordinary crime when international law has not been violated.

Of additional import is the venerable rule announced in The Charming Betsy, 6 U.S. (2 Cranch) 64, 117-18 (1804), that federal statutes must be interpreted consistently with international law – in this instance, consistently with the absolute prohibition of torture and cruel, inhumane, and degrading treatment. Therefore, the Torture statute, the War Crimes Act, and 10 U.S.C. § 818 (which has incorporated all violations of the laws of war by reference as crimes against the laws of the United States since the 1950s – as had its precursor, the 1916 Articles of War that were found to be constitutionally sound as a basis for prosecution in Ex parte Quirin (1942)) must be interpreted to preclude any alleged necessity exception. It is of further interest that the Supreme Court declared more recently in Sosa v. Alvarez–Machain (2004) that “federal courts have no authority to derive ‘general’ common law” as opposed to relevant international law, thereby placing what is alleged merely as a judicially derived common law defense in even greater doubt.



Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General’s School. His book, Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on Terror, was published by Cambridge University Press.

JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that while the US Court Supreme Court might benefit from the nomination of an elected public official, President Obama should not nominate such a person to serve as a Justice merely for the sake of diversifying the Court...

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Some U.S. senators and commentators are encouraging President Barack Obama to nominate a U.S. Supreme Court Justice whose primary professional experience has been non-judicial, particularly a person who has served in an elected public office.

Advocates of a non-judicial nominee contend that Obama’s Supreme Court nominee ought to have more “real world” experience than do present members of the Court, all of whom served as U.S. Court of Appeals judges, and none of whom have served in elected office. Until Samuel Alito joined the Court in 2006, the Court never had been composed solely of former circuit court judges or lacked any Justice who had held elected office. The present Court also is more “academic” than at most other times in its history, with three of its members (Stephen Breyer, Antonin Scalia, and Ruth Bader Ginsburg) having been law professors.

Shortly after David H. Souter announced his retirement, Senate Majority Leader Harry Reid expressed his preference for the appointment of someone other than a judge -- “people with some real-life experience...rather than people who walk around in these black robes all the time.” Similarly, Senator Patrick Leahy of Vermont, a member of the Senate Judiciary Committee, remarked in the wake of Souter’s announcement that he would “like to see more people from outside the judicial monastery, not just as a judge.” And Vice President Joseph R. Biden, a former longtime member of the Senate Judiciary Committee, declared in 2007 during a debate among candidates for the Democratic presidential nomination that “We have enough professors on the bench. I want someone who ran for dog catcher.”

Sandra Day O’Connor, who had served as majority leader of the Arizona state senate and an elected state trial judge, was the last Justice who had held an elected office. Before O’Connor, the last Justice who had served as an elected public official was her predecessor, Potter Stewart, who served two terms on the Cincinnati city council. The last nationally prominent career politician to serve on the Court was Earl Warren, who spent eleven years as governor of California before serving as chief justice from 1953 to 1969. For most of the Court’s history, however, its members have included substantial numbers of prominent political figures, including former mayors, state officials, United States congressmen, and Cabinet members.

The frequent appointment of Court of Appeals judges also is a relatively new phenomenon. Before President Eisenhower appointed three circuit court judges (Stewart, John Harlan II, and Charles Evans Whittaker) to the Court during the 1950s, only two former circuit court judges (Wiley B. Rutledge and Willis Van Devanter) and three former federal district court judges (John H. Clarke, Edward T. Sanford, and Fred Vinson) had served on the Court during the twentieth century. Neither of President Kennedy’s two nominees had been circuit court judges, and only one of President Johnson’s three successful nominees (Thurgood Marshall) was a Court of Appeals judge. Four of President Nixon’s six nominees (Warren Burger and Harry Blackmun and the unsuccessful nominees Clement Haynsworth and G. Harrold Carswell) were circuit court judges, and every subsequent confirmed nominee except for O’Connor has been appointed from the Court of Appeals.

Although President Clinton appears to have seriously considered the nomination of at least four prominent public officials -- Arizona Governor Bruce Babbitt; New York Governor Mario Cuomo; Senator George Mitchell of Maine; and former South Carolina Governor Richard Riley, who served as Clinton’s secretary of education – he eventually nominated Stephen Breyer and Ruth Bader Ginsburg, both circuit judges and former law professors.

Advocates of the appointment of a Justice who has served in public office correctly contend that this experience might make justices more sensitive to separation of powers issues. Similarly, service as a state official might make a Justice more aware of the importance of federalism. Many or most of the present Justices, however, have demonstrated a proper sensitivity toward both federalism and separation of powers. Moreover, there are professional experiences other than service in elected office that can provide Justices with “hands on” political experience. Several of the present Justices, for example, served early in their careers as attorneys in the U.S. Justice Department, where they had opportunities to closely observe the inner workings of the executive branch of the federal government.

There is no clear correlation between experience as an elected public official and distinction as a Supreme Court justice. Several of the Court’s most distinguished members, including Chief Justices Warren, John Marshall, Salmon P. Chase, William Howard Taft, and Charles Evans Hughes, had substantial experience in elected office. On the other hand, many other notable justices, including Oliver Wendell Holmes, Jr. and Benjamin N. Cardozo, never were elected to public office. One of the greatest justices, Louis D. Brandeis, who spent his pre-Court career as an attorney in private practice, never served as a judge, professor, or public official.

The three U.S. senators whom President Truman nominated to the Court (Harold H. Burton, Sherman Minton, and Fred Vinson) receive low rankings from historians. Of the nine Justices nominated by President Franklin D. Roosevelt, the five who had not served in elected office (Felix Frankfurter, Wiley P. Rutledge, Robert H. Jackson, and William O. Douglas, and Harlan Fiske Stone) generally had more distinguished service on the Court than three of the four who had been elected officials. Hugo Black, who had been a U.S. senator, became an outstanding Justice, but historians are less kind toward Frank Murphy, who had been mayor of Detroit and governor of Michigan; James Byrnes, a member of the U.S. House of Representatives and U.S. Senate; and Stanley Reed, who had served in the Kentucky legislature. With the exception of Rutledge, however, the Roosevelt nominees who had not held elected office had nevertheless had significant political experience. Jackson and Stone had served as U.S. Attorney General, Douglas had been chair of the Securities and Exchange Commission, and Frankfurter had been a close advisor to Roosevelt.

One of the dangers of having prominent politicians on the Court is that they may harbor presidential aspirations. Prior to the middle of the twentieth century, when many Supreme Court Justices were national political figures, a remarkably large number of Justices conducted covert presidential campaigns, and a few even campaigned openly from the bench. In at least three-quarters of the presidential election years between 1832 and 1960, one or more Justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as presidential or vice presidential candidates.

It is highly unlikely that any Justice today would openly campaign for the presidency because such a campaign would severely compromise contemporary expectations of judicial behavior and would violate Canon 5(a)(2) of the ABA Model Code of Judicial Conduct, which requires a judge to resign upon becoming a candidate for non-judicial office. Similarly, it would be difficult for any Justice today to conduct a covert campaign for the presidency because modern presidential bids are so protracted, and require herculean fund-raising efforts that would be impossible to conceal.

There is a very real danger, however, that a highly political Justice might try to use the Court as a platform for a future presidential bid. There is evidence that the presidential aspirations of several nineteenth century Justices, particularly Salmon P. Chase and Stephen J. Field, influenced those Justices’ judicial decisions or at least affected the manner in which they wrote some of their opinions. Any perception that a Justice is calculating his votes or crafting his opinions for the purpose of currying favor with voters could significantly diminish public confidence in the integrity of the Court, which is the ultimate source of its power and influence.

Another danger of appointing a politician to the Court may arise from their connections to the nominating president. All four of Truman’s nominees were personal friends, and three had been his colleagues in the U.S. Senate. At least three of these Justices receive low rankings from Court historians. Although some presidential friends have turned out to be distinguished Justices, a President’s appointment of close political ally can encourage the erosion of separation of powers insofar as some presidents have remained in close contact with “their” Justices. The most egregious example was Abe Fortas, who offered political advice to Lyndon Johnson on a virtually daily basis and even is reported to have helped him write speeches and select Vietnam bombing targets. Since Johnson, no political buddy of a president has served on the Court. Harriet Miers’s close association with George W. Bush as White House counsel helped sink her nomination in 2006.

If a prominent political figure were appointed to the Court, there also is a danger that the Justice would fail to make the adjustment from the robust world of politics to the more hermetic life of the Court. Such a justice might fail to recognize that public respect for the Court and the integrity of its rulings are jeopardized when a Justice makes extra-judicial comments about non-judicial issues. Although Justices can facilitate public understanding of the law through public comments on judicial issues, a Justice who is too accustomed to the limelight of the media might be tempted to comment indiscreetly about the inner workings of the Court or the Court’s opinions, which usually should speak for themselves. Too many American institutions, public and private, have been trivialized by our culture of celebrity. The Court has largely avoided this virus, and the next Justice would do well to emulate Souter, who shunned unnecessary publicity and faithfully and quietly performed his duties without fanfare or hoopla. This is not much to ask of a professional politician, but it may be too much to expect.

Although many politicians are clamoring for fellow politicians to be appointed to the Court, several law professors have aptly pointed out the Court might benefit from the appointment of a state or federal trial judge. This would be particularly useful in the many cases involving criminal procedure that come before the Court. O’Connor’s experience as a state trial judge clearly made her a more effective Justice. Hugo Black was derided at the time of his nomination in 1937 because his only judicial experience was as a judge of Birmingham’s lowly night police court, but Black’s tenure on this grassroots court is credited with helping to forge his sensitivity toward the needs of poor persons and African-Americans. During the past century, only a handful of Justices -- Clarke, William J. Brennan, Sanford, Vinson, and Whittaker – have served as federal trial judges.

Military service is another life experience that might be useful to a Justice. It is unlikely, however, that the next Justice will be a veteran, particularly if the Justice is a woman, since so few elites have served in the military during recent decades. Most Justices in the past had military experience, but John Paul Stevens, who served three years in the Navy during the Second World War, is the only present Justice who has had full-time military service. Stevens probably will be the last military veteran for a long time to come.

Ultimately, however, professional experience may be less important than other more intangible qualities, particularly intellect, integrity, and an ability to work effectively with fellow Justices.

When Whittaker was nominated by Eisenhower in 1957, he was touted as uniquely well qualified and experienced because he would be the only Justice in history who served as both a federal trial judge and a Court of Appeals judge. Whittaker, however, is commonly (albeit somewhat unfairly) ranked a “failure” in polls of judicial reputation. After serving only five years, he resigned from the Court because the demands of the job threatened his physical and psychological health.

Although experience as a the U.S. Court of Appeals judge is the nearest possible approximation that one can have to service as a U.S. Supreme Court justice, even this experience does not fully prepare a person for service on the nation’s highest court. Numerous Supreme Court Justices have emphasized that the Court is a world of its own that requires a long and difficult period of learning and adjustment, and that no previous “experience” can adequately prepare a neophyte Justice for his or her duties. Prior service as a clerk to a Supreme Court justice might help to ease the adjustment and provide useful training. Three present Justices – Stevens, Breyer, and Roberts – served as clerks to Justices, and Stevens in particular has spoken of how his clerkship with Rutledge taught him the importance of facts in adjudicating Supreme Court cases. But even prior service within the precincts of the Marble Palace is no substitute for the actual experience of sitting on the nation’s highest bench.

In considering professional qualifications and experience, one also must distinguish between cause and effect. Is a nominee well qualified to serve on the Court because she has a certain type of experience or does she have that experience because she is the type of person who is well qualified to serve on the Court? For example, several of the most significant Justices during the past century, including Holmes, Brennan, and Cardozo, served as chief justices of state supreme courts. Clearly this experience was excellent training for their work on the U.S. Supreme Court; arguably, it was even more relevant than service on the U.S. Court of Appeals. But all three of these men were appointed to their state supreme courts at least in part because they were outstanding lawyers and legal thinkers, and the this trio probably would have rendered stellar service on the U.S. Supreme Court even without previous judicial experience.

Perhaps the greatest objection to drawing all Justices from the circuit courts is not that this circumscribes the experience that Justices bring to the Court but rather that it limits the pool of talent from which a President might choose to search for a Justice. Great Justices have come from a wide variety of professional backgrounds. Obama’s pledge to appoint someone who has “empathy” with the problems of ordinary Americans suggests that he understands this and that he will not employ rigid criteria of professional background in searching for his nominee. Obama should consider the nomination of elected public officials, from whose perspective the Court could benefit. But he should not nominate an elected official merely for the sake of diversifying the Court, particularly if there is a significant danger that the politician will seek the presidency or conduct other political activities from the bench.



William G. Ross is a professor at the Cumberland School of Law of Samford University. He has published extensively on constitutional history and the federal judicial appointments process. His website is williamgeorgeross.com.