Friday, February 10, 2012

Norwegian Terror Laws Should Not be Expanded 2:02 PM ET JURIST Guest Columnist Per Lægreid of the University of Bergen argues that Norwegian anti-terror laws should not be expanded to individuals planning terror attacks and that when faced with the choice between upholding individual liberties and attempting to prevent terror, individual liberties must prevail... The new threat from terrorism seems to have lowered Western governments' threshold for introducing far-reaching measures in the fight against terror and has heightened people's tolerance towards such measures. This is perhaps most evident in countries like the US, the UK and Australia, where far-reaching anti-terrorist laws have been passed — though not unopposed. These new regulations provide the police and intelligence services with considerable new powers in the area of arbitrary arrest and detention. Several other EU countries, including Norway, have also passed anti-terrorist laws and introduced new measures in the wake of the September 11, 2001 terror attacks. These new laws and regulations shift the balance between individual freedom and government control, a development closely linked to the question of legitimacy of the public sector. A general trend is that when danger increases, liberties shrink. In representative democracies, we now face a struggle to find a new balance between civil rights and individual freedoms on the one hand and the need for stronger internal security and safety on the other. Although issues like personal freedom, human rights and abuse of power related to anti-terrorist measures are fundamental for democracy, in Norway the public debate and general attention towards these questions has been moderate. Only a few weeks after 9/11, a temporary ordinance that prohibited the financing of terror was issued by a royal decree. In December 2001, the Norwegian government presented proposals for anti-terror laws. Although not nearly as far-reaching as in other countries, they did represent something new in the Norwegian context. Until then, the concept of terror was not even mentioned in the Norwegian Penal Code. The anti-terror laws were to give the police wide-ranging powers in the area of technical tracing (like wiring and phone tapping) and included a general ban on financing terrorist attacks and planning or preparation of terrorist acts by two or more persons. Furthermore, extended opportunities for police surveillance in order to prevent terrorist acts were adopted in 2004. The Norwegian anti-terror laws as they appear today can be characterized as relatively moderate compared to other Western legislation, based on traditional Norwegian and common European legal principles. The public debate over the introduction of the post-9/11 anti-terror measures was limited. This indicates that there is broad support for, satisfaction with and trust in the ways security issues are handled. After the terrorist attacks in Oslo and at Utøya, the Norwegian population, somewhat surprisingly, became more skeptical to using more draconian measures to fight terrorism. This echoes the response from the political executives in the aftermath of the terrorist attack that the answer should be more democracy, more participation and more humanity. However, there is also an emerging debate on the need to strengthen the anti-terror laws. Last week a Norwegian court convicted two men accused of planning an attack against the Danish newspaper that published a cartoon of the Prophet Muhammad. They were found guilty of planning a terrorist attack and sentenced to seven and three-and-a-half years, respectively. This is the first conviction under Norway's anti-terror laws. The sentence is not enforceable yet as it may be appealed, but for now, the conviction stands. The assertion that they would not be convicted if the planning were done alone has actualized the discussion of whether it should also be illegal to plan a terror attack alone. It is not a good idea to criminalize the mere idea of committing a terrorist attack. Such a move would weaken privacy and individual rights because it would expand the mandate of the Police Security Service to conduct surveillance of individual citizens. It would produce unrealistic expectations about what can in practice be prevented. It is almost impossible to find out, let alone prove, what is going on inside the heads of individual citizens. The possibility of revealing criminal thoughts to convict someone for solo-planning would be minimal. To change the law in that direction would only produce a false sense of security and unrealistic expectations. The idea that terrorist attacks can be avoided if one uses all available means of power is an illusion. We have to accept that we cannot protect against everything and that security and safety cannot be restored by use of stronger security measures. In the fight against terror and terrorism, we are faced with a difficult dilemma. Are democratic principles to be set aside in order to fight terror, or should a certain degree of terrorism be tolerated in order to uphold important basic rights? This is a difficult dilemma, but if we have to choose we should choose the latter option and affirm individual liberty. Per Lægreid is a Professor of Administration and Organization Theory at the University of Bergen. He has written various articles on the Norwegian government and is a senior researcher at the Stein Rokkan Centre. He received his Ph.D. in philosophy from the University of Bergen. Suggested citation: Per Lægreid, Norwegian Terror Laws Should Not be Expanded, JURIST - Hotline, Feb. 10, 2012, http://jurist.org/hotline/2012/02/per-laegreid-terror-law.php. This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

Israeli Citizenship Laws are Unconstitutional 12:02 PM ET JURIST Guest Columnists Hassan Jabareen and Sawsan Zaher of Adalah argue that the political polarization of the Citizenship and Entry Into Israel Law deflects the real constitutional and legal issues at the heart of the controversy... Raneen, a 36 year-old Palestinian citizen of Israel, is married to 39 year-old Hatem, a Palestinian from the West Bank. They have been living together in the north of Israel since getting married in 1999, and they have three children. They have a normal family life, except for one thing: Hatem only has a temporary permit to stay in Israel for one year. The Interior Ministry has total discretion in deciding whether or not to issue this permit. Hatem's current permit will expire and he might not be able to get another one, he may be forced to separate from his family. This is the harsh reality created by Israel's Citizenship and Entry into Israel Law. On January 11, 2012, the Israeli Supreme Court, in a 6-5 decision spanning over 230 pages, upheld the constitutionality of the Citizenship and Entry into Israel Law enacted in 2003. This law severely restricts Israeli citizens, overwhelmingly Arab citizens of Israel, from applying for entry of their Palestinian spouses or children from the Occupied Palestinian Territory (OPT) for the purpose of family unification. This law was amended in 2007 to also prohibit spouses from "enemy states," defined by the law as "Syria, Lebanon, Iran and Iraq," to enter Israel for the purpose of family unification. Adalah, as well as several other human rights organizations and Knesset Member Zahava Galon, petitioned the Israeli Supreme Court to strike down the law. In response, the state alleged that the purpose behind this blanket prohibition against family unification was to prevent security threats against Israel, as it does not have the means to undertake individual checks. The state based its claims on its right as a sovereign to permit or prohibit the entry of any foreigner into its territory. However, data provided by the state revealed that from 1994 to 2008, among the more than 130,000 persons who have entered Israel for the purpose of family unification, only 54 were involved in some way in terror actions against Israel. Of these 54, only seven of them were indicted, convicted and sentenced to imprisonment and at least two of them were released from prison after only a short time. Notably undercutting the state's security argument, the law permits the entry of Palestinians from the West Bank to work in Israel and thousands of people possess such permits and enter Israel every day. The majority of the justices on the Supreme Court ruled that the potential security threat to the lives of Israelis must prevail over the right to family life. Justice Asher Grunis, soon to become the chief justice of the court in March 2012, ruled that "human rights are not a prescription for national suicide." He further held that the social aspects of the Citizenship and Entry into Israel Law should be weighed against the potential harm to the lives of Israeli Citizens. The main themes of the majority opinions are that the purpose of the law is legitimate, and that the law is proportionate and constitutional. Justices Naor and Rubenstein added that the right to family life does not mean having the right to exercise that family life in Israel. The majority of justices based their decisions on European comparative case law claiming that other courts have also denied family unification of non-citizens. This interpretation of the case law contradicts three legal expert opinions examining UK, South African and European Court of Human Rights case law, provided to the Supreme Court by Adalah. The experts found that such case law applies only when both spouses are non-citizens. The experts argued that the Israeli Citizenship Law — in comparison with laws in other countries — violated the right to family life and is discriminatory and unconstitutional. Five justices of the Supreme Court wrote minority opinions finding the law to be unconstitutional. The main theme of the minority opinions was that the law violates the right to family life, which is a constitutional right, and that it is not proportional, as it is sweeping in its prohibition by banning all cases of family unification without examining the circumstances of each individual and to what extent he or she may constitute a "security threat." Justice Edmond Levy, who wrote the opening opinion, differed from the other justices in the minority, holding that there was no need to examine this law based on the proportionality test, since the law itself is not for a good purpose. In his view, such a discriminatory law against the Arab minority contradicts the constitutional values of Israel as a "Jewish and democratic" state. In May 2006, the Israeli Supreme Court also upheld this in a discriminatory laws [PDF] in the Knesset against Arab citizens of Israel, and the majority of the ministers perceive them as "disloyal," a "fifth column" and as a "demographic threat." In addition, the current government has strongly criticized the Supreme Court's activist role and has attempted to limit its powers of judicial review. As a result of this decision, thousands of Palestinian families living in Israel, among them Raneen and Hatem's family, are under the immediate and tangible threat of forced separation. Due to the Supreme Court's ruling, while Jewish citizens of Israel enjoy the full right to marry any Jewish person living outside of the territory of Israel, even if he/she is a resident or citizen of an Arab "enemy" country (due the applicability of the Law of Return), Arab citizens of Israel do not enjoy that same right. As such, the law creates three tracks of naturalization in the State of Israel. The highest track is for Jewish people, who are automatically entitled to Israeli citizenship under the Law of Return. The second track is for non-Jewish foreigners, who can apply for Israeli residency status through a process of individualized interviews and background checks. The third and lowest track is for the Palestinian/Arab/Muslim spouses of Palestinian citizens of Israel, who are prohibited from entry for the purpose of family unification under the Citizenship and Entry into Israel Law. The two Supreme Court decisions regarding family unification in 2006 and 2012 have created a serious legal debate in Israel as to whether demographic reasons — keeping a Jewish majority within the Green Line and to prohibit as many Palestinians as possible from residing in Israel — were behind the purpose of the law. The security reasons proffered by the state before the Supreme Court were not convincing since the data shows that the family unification process does not in fact create a security threat to Israel. In our opinion, the debate between the justices is one concerning the meaning of Israel as a "Jewish and democratic" state. One side perceives that the Jewish state should always keep its Jewish majority, and thus banning family unification will protect these values. The other side, while agreeing that Israel should maintain a Jewish majority, views such a sweeping ban as threatening the democratic character of the state, as no democratic state in the world prohibits family unification solely based on the ethnicity/national belonging of the individual. As such, this debate makes the question of the equality of Arab citizens of Israel a disputed issue, and the principle of anti-discrimination as a matter of interpretation to be examined on a case-by-case basis. Although the 2012 ruling is a step backwards from the 2006 judgment, the 2006 decision indicates that the basic questions of equality for Arab citizens of the state remain undetermined, and thus the Court found it possible to suspend the constitutional protection of the right to family life in this case. This suspension of the rule of law puts many questions regarding Arab citizens' rights up for public and parliamentary debate. Thus the perception of this issue as political and not as one involving constitutionally protected rights legitimizes the government and Knesset actions in enacting more and more discriminatory laws against Arab citizens of Israel. Hassan Jabareen is the Founder and General Director of Adalah. He has extensive experience in litigating landmark cases before the Israeli Supreme Court on behalf of Palestinians in Israel and in the OPT. Major cases include representing Arab political parties and leaders in elections disqualification cases and in political, criminal cases; and challenging the Citizenship Law which prohibits family unification between Palestinians from the OPT and Palestinian citizens of Israel, and the no-compensation law which banned Palestinians from the West Bank and Gaza from obtaining damages from Israeli security forces. Sawsan Zaher is the Director of Adalah's Social, Economic and Education Rights Unit. She specializes in social and economic rights, working with Adalah since 2005, and was formerly a solo practitioner in a private law firm specializing in civil law from 1998 to 2003. Zaher established and coordinated the legal department for Arab women's rights in Kayan Feminist Organization in 2004 and 2005. Suggested citation: Hassan Jabareen & Sawsan Zaher, Israeli Citizenship Laws are Unconstitutional, JURIST - Hotline, Feb 10, 2012, http://jurist.org/hotline/2012/02/jabareen-zaher-israel-citizenship.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, February 08, 2012

Prosecuting Genocide: Reflecting on the Vukovic Decision 3:02 PM ET JURIST Guest Columnist Scott Shackelford of Indiana University, Kelley School of Business says that the recent decision by the Court of Bosnia and Herzegovina on genocide raises pertinent questions about the legal standards used to prosecute those who commit the ultimate human rights abuse... On January 25, 2012, the Court of Bosnia and Herzegovina (BiH) upheld the conviction and 31-year sentence of Radomir Vuković for his part in the 1995 Srebrenica massacre during the Bosnian civil war. The case was notable from several perspectives. One of the more interesting is what it says about proving the specific intent requirement of genocide, juxtaposing two separate legal doctrines in two different contexts. The first is state court proceedings determining whether an individual possessed the requisite mental state to commit genocide. The second is an international tribunal deciding whether the acts of non-state groups are attributable to a state. Coming as it is almost exactly five years after the International Court of Justice (ICJ) Bosnia and Herzegovina v. Serbia and Montenegro [PDF] decision, it is worth comparing and contrasting the doctrines at issue and which system has been more effective at holding perpetrators accountable. For those unfamiliar with the case, Radomir Vuković was indicted for his alleged participation as a member of the special police force in a joint criminal enterprise with the aim of forcibly removing nearly 40,000 civilians from the UN safe area at Srebrenica and executing more than 1,000 Bosniaks in 1995. In April 2010, while the BiH did not find that Vuković had the specific intent to commit genocide, he was found guilty of assisting in the perpetuation of genocide in theVuković decision. However, the verdict was thrown out on appeal and a retrial ordered in June 2011. The final BiH decision upholding Vuković's conviction is not yet available in English, but analyzing the original BiH Vuković decision helps to illustrate its treatment of the specific intent requirement for genocide. Specifically, the court stated in dicta that to find Vuković guilty of genocide would require proof established beyond a reasonable doubt. In its analysis, the court weighed the evidence that the accused, Vuković and another special police officer named Milan Tomić, were not aware "of the totality of what was happening at Srebrenica" against the court's findings that "the actions of the accused made a substantial contribution to the execution of the genocide." The legal issue was whether the accused acts of murdering numerous prisoners confined in a warehouse proved that the accused themselves had genocidal intent. The appellate court ultimately concluded that knowledge of the plan and participation in it does not establish shared genocidal intent established beyond a reasonable doubt. The BiH upheld Vuković's conviction for assisting in the perpetuation of genocide on January 25, but threw out Tomić's due to a lack of evidence. The Vuković decision is only the latest in a string of criminal prosecutions of those accused of participating in the genocide against the Bosniaks at Srebrenica, the largest mass murder in Europe since World War II. These include suits in Bosnia and Herzegovina, Germany, Austria, the Netherlands, Serbia, civil suits in the US and trials in both the International Tribunal for the Former Yugoslavia (ICTY) and the ICJ. However, the difficulty of proving specific intent to commit genocide links these cases, and echoes elements of the ICJ's controversial Bosnian Genocide decision regarding whether Serbia had the specific intent to commit genocide. For the first time in legal history, and of the four genocide cases that have come before the ICJ, the Court held in Bosnian Genocide that states can be found responsible for genocide [PDF]. The ICJ though found that Serbia lacked the specific intent to commit genocide, even though it determined that the actual Bosnian Serb perpetuators did have the requisite mental state. In reaching its decision, unlike in the Vuković decision, the standard implicitly laid down by the ICJ as applied to state control was beyond any doubt, not beyond a reasonable doubt. The ICJ relied on the Nicaragua v. US [PDF] effective "operational control" standard in making this determination, which requires a showing of "complete dependence" by non-state actors on the state, unlike the more flexible ICTY Prosecutor v. Tadic [PDF] "overall control" standard that considers instances in which a state has a role in organizing and coordinating a group's acts. Scholarly commentary on the decision was divided, but it centered on the Court's decision to demand a high burden of proof for both actus rea and mens rea, which can be difficult for something as nebulous as a state. Judge Antonio Cassese, the first president of the ICTY, for example attacked the Bosnian Genocide judgment as demanding an "unrealistically high standard of proof." A high evidentiary bar is necessary in genocide cases since specific intent is what distinguishes genocide from other crimes against humanity and human rights abuses. However, objective evidence pointing to a systematic pattern of genocide should not be ignored, especially in proving actus rea. In the Vuković decision, evidence that "the accused must have been aware that their murdering so many people ... would destroy the Bosnian Mulsim group in part" was found sufficient to hold Vuković guilty for intentionally making a substantial contribution to commit genocide. Whether or not it was sufficient to prove genocide is debatable; the method of "substantial contribution" has proven to be a useful means of holding participants in genocide accountable for their actions somewhat similar to the evolving doctrine of incitement to genocide. Thus, nearly five years after the Bosnian Genocide decision, both national and international courts continue to wrestle with the scope and meaning of specific intent, and what burden of proof should be required to find both individuals and states accountable for genocide. On the one hand, the BiH's burden of proof of beyond a reasonable doubt might seem to provide a more workable standard for prosecutors than the ICJ's Bosnian Genocide decision. However, the ICJ did, after all, find that the Bosnian Serb perpetrators possessed the specific intent to commit genocide, whereas the BiH ruled in 2010 that both Vuković and Tomić lacked that intent. The two relevant legal doctrines of specific intent and state responsibility though should not be conflated. What links the two disparate areas is the difficulty of defining the necessary burden of proof. Proving specific intent for an individual or actus rea for a state remains problematic even with substantial direct evidence of participation. As courts continue to weigh these requirements in genocide prosecutions, they should make use of evolving doctrines such as "substantial contribution" and incitement to genocide and not ignore the Tadic overall control standard. Only then will coming anniversaries of Bosnian Genocide mark the progressive development of regimes that hold participating individuals and states accountable for the ultimate human rights abuse. Author's Note: A special thanks to Professor Allen Weiner for his helpful comments on this article. Scott Shackelford is an Assistant Professor of Business Law and Ethics at Indiana University, Kelley School of Business. He earned a law degree from Stanford Law School and a Ph.D. in Politics and International Studies from the University of Cambridge. Suggested citation: Scott Shackelford, Prosecuting Genocide: Reflecting on the Vuković Decision, JURIST - Hotline, Feb. 8, 2012, http://jurist.org/hotline/2012/02/scott-shackelford-srebrenica.php. This article was prepared for publication by Stephen Krug, an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

Stretching the Mandate: ICC Action in the Maldives 12:02 PM ET JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, says the ICC should constantly adhere to a policy of prudent advocacy, since interfering in "low-level" situations would cause a multitude of legal, political and financial problems... Recently a group of Maldives lawyers submitted a case to the International Criminal Court (ICC). The case involved the detention of a Maldives judge accused of corruption and political bias in his professional conduct. At issue is the means of meting out justice in the Maldives, with the Maldives lawyers contending that the judge in question was "kidnapped" by the Maldives National Defence Force, an action they believe constitutes a crime against humanity. So what is the ICC to do with this case? How should chief prosecutor Luis Moreno-Ocampo and the Office of the Prosecutor (OTP) proceed? It should be clear to even the most ardent supporter of the ICC that they should proceed with little to no acknowledgement of the case for legal, political and financial reasons. From a legal perspective it is questionable whether the case even falls under ICC jurisdiction. According to the Rome Statute of the International Criminal Court, the ICC has "jurisdiction over persons for the most serious crimes of international concern." These "most serious crimes" include genocide, war crimes, crimes against humanity and beginning in 2017, the crime of aggression. The question is whether the actions in the Maldives case constitute a serious crime of international concern. We can begin by addressing what crime under ICC jurisdiction was allegedly violated. The opposition parties in the Maldives are claiming that this detention is a crime against humanity. According to the Rome Statute, "imprisonment or severe deprivation of individual liberty" does constitute a crime against humanity. The opposition also claims that the government's failure to disclose the judge's location for 48 hours constitutes "enforced disappearance." However, in order for the ICC to consider either action a crime against humanity, it must be "committed as part of a widespread or systematic attack directed against any civilian population." If the detention of this high court judge violates the Maldives Constitution [PDF] it is certainly a crime, but the lack of systematic and/or widespread detentions excludes such an alleged crime from rising to the level of crimes against humanity. As a result, the ICC does not have jurisdiction. Along with this basic jurisdictional issue there is also the question of complementarity. During the stocktaking portion of the Kampala Review Conference it was determined that "positive complementarity" was essential in ending impunity given the limited resources of the Court. The principle of complementarity states that the ICC shall only have jurisdiction when a state is unwilling or unable to prosecute. If a state with jurisdiction over the case is taking appropriate legal steps to resolve the situation the case is inadmissible before the ICC. The notion of positive complementarity stresses the importance of this relationship between the ICC and domestic judicial proceedings and places an increased burden on the member states to resolve their own judicial issues, but always with the specter of the ICC looming over their actions. Therefore, it is important to see how the Maldives government reacts to this criticism. However, at this point in time it is difficult to discern whether the principle of complementarity is or is not applicable in this case. Along with these legal considerations there are also political considerations involved. Although the charges levied against the Maldives government are significant, do they hold the gravity necessary to initiate ICC proceedings? There is no way to quantify the notion of gravity (as stated in the Rome Statute), but Ocampo himself has stated that the purpose of the Court is to end impunity in the most horrific of cases. Given the fact that the ICC has investigated, but not opened, formal proceedings in Afghanistan, Columbia, Georgia, Guinea, Honduras, Korea, Nigeria and Palestine, it seems fair to say that the Maldives case does not display the level of atrocities and/or the lack of governmental action that is needed for ICC intervention. It would be difficult to argue that the scale and scope of the crimes committed in these situations does not far outweigh those of the Maldives. As a result, the ICC accepting this case would be a major political blunder because it would represent a monumental judicial overreach that would result in significant damage to the Court's credibility. Many states in the international community remain wary of the ICC's reach and if the OTP were to open a case concerning the detention of one judge it would show their desire to be overly involved. Some may even claim such action as a violation of state sovereignty — the exact reason why the Rome Statute contains the principle of complementarity. Finally, involvement of the Court in such cases would hinder the financial stability of the ICC. Unfortunately, the Court does not have unlimited resources. Again, as stipulated in the stocktaking exercise of the Kampala Review Conference, member states recognize the Court's limited resources. It is best for the OTP and its member states to concentrate these resources on the cases that entail large-scale atrocities. Any other course of action could prevent the Court from engaging in future investigations and prosecutions. The ICC's best course of action is to steer clear of such low-level situations. Intervening in the Maldives would be opening Pandora's box and stretching the ICC to the breaking point — not only legally, but politically and financially as well. If advocates of the ICC (whether that means member states, NGOs or others) want a truly effective Court, then they must be prudent in their advocacy of cases and accept that the purpose of the Court is to prosecute those crimes that hold sufficient gravity. Currently, the Maldives simply does not fit that criteria. Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court. Suggested citation: Eric Leonard, Stretching the Mandate: ICC Action in the Maldives, JURIST - Hotline, Feb. 8, 2012, http://jurist.org/hotline/2012/02/eric-leonard-icc-jurisdiction.php. This article was prepared for publication by Stephen Krug, an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, February 02, 2012

Sex Offender Residency Restrictions Impede Safety Goals 8:02 AM ET JURIST Guest Columnist Jill Levenson, Associate Professor of Psychology at Lynn University, says that sex offender residency restrictions often do little to prevent repeat offenses because are based on stereotypical notions of recidivism among sex offenders... Recently, the US Court of Appeals for the Tenth Circuit ruled that a policy banning registered sex offenders from entering Albuquerque's public libraries is unconstitutional. Over the past decade the availability of online sex offender registries has enabled widespread awareness of sexual offenders living in the community, increasing concerns for the safety of children and leading politicians to pass laws restricting where sex offenders can live, work and even be present. Residence restrictions in 30 states and countless municipalities typically prohibit individuals convicted of sex crimes from residing within 500 to 2500 feet of schools, parks, playgrounds, daycare centers, bus stops and other places where children congregate. Few court challenges have been successful in overturning such restrictions. Research shows that politicians and citizens are overwhelmingly in favor of such laws, which are often based on stated (but empirically unsupported) assumptions that almost all sex offenders reoffend and that they are immune to therapeutic intervention. In fact, recidivism rates of known sex offenders are much lower than commonly believed, and properly designed treatment, though not equally effective for all offenders, can significantly reduce the risk of re-offending. Restrictions also reinforce the myth of "stranger danger," despite research from the Justice Department indicating that over 90 percent of child sexual abuse victims are well known to their perpetrators, who typically cultivate opportunities for molestation through familiar relationships with relatives and acquaintances. Residence restriction laws are relatively new, but some research has questioned whether these laws "work" to prevent recidivism. For instance, sexual recidivists do not appear to live closer to schools or parks than non-recidivists, suggesting that residential proximity to such venues is not a contributing factor to re-offending. Furthermore, sex offenders rarely prey on young children in or near parks, libraries or schools and sexually motivated abductions of children are very rare events. Laws restricting where sex offenders live or work will do little to prevent the most common circumstances in which children are sexually abused, through positions of authority and familiarity. In fact, residential restrictions may create more problems than they solve. Since the vast majority (80-95 percent) of residential properties in densely populated metropolitan areas are within 2500 feet of a school, park, or daycare center, housing options can be diminished to a degree where sex offenders become homeless or transient. This transience undermines the very purpose of sex offender registries (to track and monitor where sex offenders live) and creates other barriers to successful reintegration. Another unintended consequence of such laws is clustering, where sex offenders end up living in disproportionate numbers in the limited areas that are compliant with restrictions. Some jurisdictions have instead opted for "child safety zones" or "loitering zones." Rather than restricting where sex offenders reside, such initiatives prohibit them from hanging around in places (without a legitimate reason or prior permission) where they can easily cultivate relationships with children and engage in grooming tactics. In some cases loitering laws are supplemented with GPS monitoring devices that alert officials when a sex offender enters a forbidden area without a legitimate reason. These types of laws, though also controversial and vulnerable to legal challenges, might be better equipped to manage the daily activities of sex offenders at risk for abusing children than housing laws which dictate primarily where sex offenders sleep. Diminishing access to potential victims is an appropriate component of sex crime prevention, but should be tailored to the offender's risk, offense patterns and victim preferences. Broadly restrictive legislation is unlikely to be effective in preventing sexual assault and interferes with reintegration (housing stability, employment and social support) which may inadvertently increase risk. Treatment should be included as part of any comprehensive strategy for preventing recidivistic sexual violence. Professionals and policymakers alike are encouraged to consider a range of options available for building safer communities and to endorse those that are most likely to achieve their stated goals while minimizing collateral consequences for offenders reentering communities. Jill Levenson is an Associate Professor of Psychology at Lynn University in Boca Raton, Florida and an alumnus of the University of Pittsburgh. She has published over 80 articles investigating the impact and effectiveness of social policies and therapeutic interventions designed to prevent recidivistic sexual violence. Suggested citation: Jill Levenson, Sex Offender Residency Restrictions Impede Safety Goals, JURIST - Hotline, Feb. 1, 2012, http://jurist.org/hotline/2012/02/jill-levenson-sexoffenders-residency.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, February 01, 2012

Rios Montt Prosecution is Important to Victims and Judiciary 12:02 PM ET JURIST Guest Columnist Kelsey Alford-Jones, Director of Guatemala Human Rights Commission, argues that it is important for the Public Prosecutor's Office and president to follow through with the genocide charges against Rios Montt to strengthen Guatemala's judiciary and bring justice to the victims of genocide... On Thursday, January 26, Guatemala's former dictator, Efraín Ríos Montt, became the first head of state in Latin America to be charged with genocide and crimes against humanity. The charges identify Montt as the intellectual author of the crimes committed by armed forces in 1982 and 1983 in Guatemala's Ixil Triangle (San Juan Cotzal, San Gaspar Chajúl and Santa María Nebaj) in the department of El Q'iché: the forced displacement of 29,000 individuals, the deaths of 1,771 individuals in 11 massacres, as well as acts of torture and 1,485 acts of sexual violence against women. Judge Patricia Flores's decision to charge Montt and proceed to a full trial is a historic step in a decade-long quest for justice for the egregious crimes against humanity that were committed in the early 1980s. Montt, who took power in a military coup in March 1982, oversaw a brutal scorched earth policy in Guatemala's indigenous highland regions. His 17 months in power have become widely recognized as the most violent period in all of Guatemala's 36-year conflict. It took over two hours for the government's prosecutor to list the charges against Montt. The legal justification for the case is based on Montt's command responsibility: as leader of the military high command, he "authorized, created, designed and supervised" the military's counterinsurgency strategy, which targeted the civilian population in the indigenous highlands. Montt was in the direct chain of command of all military units with authority over those who carried out the crimes. He was constantly informed about what happened in the field, and he did nothing to avoid the crimes, to prevent future abuses, or to hold the perpetrators accountable. Furthermore, the state policy of violence was carried out against a specific ethnic group, the Ixil Maya, declaring them internal enemies that needed to be "destroyed," which constituted genocide. Evidence for Guatemala's strict chain of command and the participation of top government officials in military activity has been repeatedly demonstrated by declassified Guatemalan and US documents. In Thursday's hearing, the prosecution was able to use as evidence military strategy plans such as Operación Sofía [PDF], Plan Victoria '82 and Plan Firmenza '83, an option made possible only after years of advocacy by national and international organizations to gain access to evidence of the military's strategy and patterns of abuse. The others charged in the genocide case, Montt's Army Chief of Staff Hector Mario Lopez Fuentes and Defense Minister Oscar Humberto Mejia Víctores, were ordered to appear in court last year but their evidentiary hearings were both postponed due to health issues. This process began 13 years ago, when Nobel laureate Rigoberta Menchu Tum first brought charges of genocide, terrorism and torture against eight former political and military officials — including Ríos Montt — to the Spanish National Court, based on Spain's recognition of universal jurisdiction. Victim organizations in Guatemala, such as the Association for Justice and Reconciliation (AJR), with the legal support of the Center for Human Rights Legal Action (CALDH), also brought a case against Montt and his military high command in 2001 in Guatemalan courts. While there was little advancement in the Guatemalan case, a Spanish judge issued international arrest warrants for all eight accused there in 2006. Montt was elected to Congress in 2007, avoiding any possibility of being charged in Guatemala. Organizations continued to build a case against him and pushed for legal action. When his immunity came to an end on January 14, 2012, he was promptly subpoenaed. Strengthening Guatemala's judiciary has been an important focus for institutional reforms that began with the signing of the Peace Accords in 1996. Yet there has been little justice for the vast majority of abuses from the internal conflict, during which 200,000 people were killed, including almost 50,000 cases of forced disappearance, and thousands of documented cases of sexual violence. Even today, 98 percent of crimes are committed with impunity. In 2011, Guatemalan courts did make important advances in the investigation of both the material and intellectual authors of torture, forced disappearance and other crimes against humanity committed during the war. These emblematic cases reveal the deep, vested interests at the highest levels of government to deny responsibility for past crimes. Furthermore, they provide an important barometer for the capacity of Guatemala's judiciary to hold human rights violators accountable. Political pressure continues to impede many of these cases and there have been efforts to pass an amnesty law for crimes committed during the conflict. The Guatemalan Constitutional Court has also repeatedly refused to accept international rulings that, according to the Guatemalan Constitution, are legally binding. Furthermore, doubts have been raised about the current administration's political will to move key cases forward. A recently elected president and former general, Otto Pérez Molina, was a Major during Montt's regime and was in a command position in the Ixil Triangle where the genocide was carried out. While he has not been charged in connection to the crimes committed there, he has been named in a separate case [PDF] as the intellectual author in the torture and forced disappearance of indigenous guerrilla leader Everardo Bámaca. Considering these historic and political barriers, many saw the judge's ruling as an act of bravery and a cause for celebration. It will be important for the Public Prosecutor's Office to follow through with the genocide case and the charges against Montt, and for the president to provide strong support for a transparent and independent judicial process. For communities who were victims of the genocide, this case is an important step in their search for truth, historical memory, and to guarantee that these acts are never repeated. Justice, for many communities, is a first — and necessary — step to begin to heal from the past. Kelsey Alford-Jones is the Director of the Guatemala Human Rights Commission, a non-profit, non-partisan organization that monitors, documents and reports on the human rights situation in Guatemala, advocates for survivors of human rights abuses, and works toward positive systemic change. Prior to her time at GHRC, Kelsey was a History and Language Arts teacher at a bilingual alternative school for Latino students in Portland, Oregon. She also coordinated and developed an Environmental Education Program at the Sarapiquí Conservation Learning Center in Costa Rica. Suggested citation: Kelsey Alford-Jones, Rios Montt Prosecution is Important to Victims and Judiciary, JURIST - Hotline, Feb. 1, 2012, http://jurist.org/hotline/2012/02/kelsey-alford-jones-montt.php. This article was prepared for publication by Brandy Ringer, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Tuesday, January 31, 2012

ECCC Must Prosecute Those Responsible for Torture 5:01 PM ET JURIST Guest Columnist Christopher Hale, Senior Counsel at the American Bar Association Center for Human Rights, argues that the Convention Against Torture should not be used as a tool to protect those accused of torture and that the ECCC must prosecute those responsible for torture in Cambodia... Every weekday at around eight o'clock in the morning in the far outskirts of Phnom Penh, a procession of UN busses pass through the security gates at the Extraordinary Chambers in the Courts of Cambodia (ECCC) or better known as the UN-backed Khmer Rouge Tribunal. The ECCC and its staff will soon be launching the latest salvo in the ongoing war about torture obtained evidence. From Guantanamo Bay to rendition flights all over the world, this controversial legal feud will now make a stop in the rice fields of Cambodia. By way of background, the long-anticipated and long overdue trial of the remaining senior leaders of the brutal Khmer Rouge regime began on November 21, 2011 with opening statements. While a fourth defendant, former Minister of Social Affairs Ieng Thirith, remains in hospital care for her recent diagnosis of dementia and will not be tried at present, the remaining three defendants are the most senior members of the Khmer Rouge's inner circle still alive: Nuon Chea, the Khmer Rouge chief ideologue and second in command to the deceased Khmer Rouge leader, Saloth Sar, better known as "Pol Pot;" Ieng Sary, the Minister of Foreign Affairs and public face of the regime, and Khieu Samphan, the political head of state of the Khmer Rouge government. All of these defendants are charged with war crimes, crimes against humanity (including torture), and genocide. After opening statements, the ECCC Trial Chamber has begun to hear evidence about one of the most horrific episodes of human cruelty and mass atrocities in modern human history. Widespread killings, routine torture and interrogations, massive forced labor camps, and systemic starvations are just a few of the crimes that the defendants are alleged to have masterminded, ordered and supervised. These alleged crimes occurred from border to border of Cambodia for close to four years from April 17, 1975 to January 6, 1979, and resulted in the loss of 25 percent of Cambodia's population. It is no surprise then that the lead international co-prosecutor, Andrew Cayley, and many others believe that this case is the largest and most complex in international criminal history since Nuremberg. This often criticized and underfunded (and under-resourced) tribunal is charged with the difficult task of bringing justice to crimes that occurred over 30 years ago and to a population in which, it is said statistically, every citizen suffered at least one death in their immediate family. Lost in the mix of news coverage about alleged corruption and political interference at the ECCC is that this court will soon make a landmark decision on an issue that is highly contentious, both among the trial parties and among policymakers, counterterrorism experts and human rights commentators the world over: the use of torture evidence. However, unlike the standard paradigm where a government tortures a detainee to force a confession or produce evidence, and subsequently uses that confession or evidence in court against that detainee or one of his alleged co-defendants, the ECCC Trial Chamber faces a far different scenario. The prosecution intends to use as evidence extracts from thousands of pages of prisoner files, including statements and "confessions" that were produced before, during, and after interrogation sessions where Khmer Rouge prisoners were brutally tortured at hundreds of government prison sites throughout Cambodia, most notably at the infamous S-21/Tuol Sleng prison in central Phnom Penh. Hence, factually, the ECCC prosecutors plan to submit this evidence not against a victim(s) of torture, but against those alleged to have tortured, or in this case, ran the regime that allegedly tortured hundreds of thousands of people. In an innovative piece of fancy legal footwork, ECCC defense teams have argued that a provision of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) [PDF] — which forms part of the legal basis of the ECCC itself and relevant international law at large — prohibits the prosecution from using this "torture tainted" evidence. Their argument stems from Article 15 of CAT, which states, "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made." The defense argues that any and all evidence obtained through torture is by definition inadmissible with the small exception of evidence used against the actual perpetrator of torture (and only then, merely as proof that the statement is the byproduct of torture inflicted by the actual torturer(s)), who in this instance are the Khmer Rouge soldiers and interrogators who whipped, electrocuted, water boarded, and pulled out the nails of prisoners, among other techniques [PDF]. As their argument concludes, senior government officials who allegedly instructed or otherwise brought about this torture are immune from such evidence, because they do not fit this limited exception. Whereas Article 15 serves as a shield to protect torture victims from torture evidence being used against them, the defenses' argument turns Article 15 into a sword to impale the prosecution's case. The final twist that makes this legal argument and factual situation so fascinating is that it is an unprecedented issue. No international criminal court has answered, let alone faced, the question of whether CAT Article 15 precludes from the prosecution [PDF] of alleged torturers, or those responsible for such torture, the admission of documentary evidence from the torture at issue. Consequently, the final ruling from the ECCC judges will likely be one of the ECCC's most significant judicial legacies. Notwithstanding the question's exceptional nature, the answer is clear: international justice, standards of treaty interpretation and the integrity of universally accepted legal principles will take a significant step backwards if the ECCC Trial Chamber endorses the defense teams' argument. Both in terms of law and fact, the argument that Article 15 of CAT bars torture evidence from being used against the senior leaders of the Khmer Rouge regime has little merit. While the applicable law does not support the contention by the defense, the facts are even more damaging to their argument. In detention centers throughout the Khmer Rouge's Cambodia, a large segment of the population was mercilessly and routinely tortured for days, weeks or even months in the most gruesome of ways, including being forced to eat human feces. Before, during and/or after such torture, and either by themselves or by an interrogator, the confessions of these torture victims were recorded on paper. Numerous victims had multiple documents drafted at various times throughout this process. Their confessions were seldom a short admission of guilt to a single crime, but rather lengthy biographies — often hundreds of pages — that detailed their lives to date, the identity of their family members, friends and colleagues, their full knowledge of and interaction with the regime and its officials, and gave intricate descriptions of their "criminal" activities. Most alarming, these victims did not "admit" to murders or rapes, but confessed to participating in the most farfetched conspiracies against the Khmer Rouge imaginable, all to "prove" the Khmer Rouge's paranoia that their problems were caused by outside infiltrators. These fictional crimes were, for instance, being a CIA or KGB agent teaching others how to spark internal instability, a capitalist spreading imperialist propaganda, or a Vietnamese sympathizer purposefully not working hard in the rice fields as a way to disrupt the government's agenda. It was regular practice of supervising Khmer Rouge interrogators to send these confessions back with instructions to torture more if the supervisor was not pleased with what he read or felt there were more hidden crimes to uncover. Their instructions were written right on the confessions in red ink, with orders to "beat" more if they refuse to admit to a particular "crime." In the case at hand, the ECCC prosecutors are not, for example, using these confessions to prove that the victims were in fact CIA agents attempting to overthrow the regime. Considering the absurdity of these Khmer Rouge era "crimes," the confessions have zero incriminating value. Instead, these confessions are treasure troves of other important information. For the purposes of prosecutorial work at the ECCC, the confessions contain crucial information about the Khmer Rouge hierarchy and policies, actual evidence that torture de facto occurred, contemporaneous annotations by interrogators, lead evidence for ECCC investigators and lawyers, and corroborating evidence of known, but potentially disputed facts. More importantly, the confessions have significant non-hearsay value. In other words, value not for the incriminating truths the evidence asserts (i.e. "I'm a CIA agent who the US sent to sabotage the government"), but for inferences imbedded in the evidence. The non-hearsay value in portions of these confessions is directly rooted in the Article 15 exception "as evidence that the statement was made," in that there is inferential value to take away from the mere fact that a "statement was made." For instance, some non-hearsay purposes to pull from these "statement[s]" are knowledge, notice, and effect on the reader. This last purpose is particularly relevant and important for this trial, because Khmer Rouge detainees were tortured in part to divulge the identity of other collaborators, and subsequently, these individuals named in written confessions were arrested and tortured themselves, as the cycle goes. Additionally, some victims divulged their familial, social, and work relationships prior to torture, and the Khmer Rouge subsequently rounded these individuals up and tortured them just for being associated with a known "enemy" to the regime. Thus, the confessions show that the "effect" of naming someone on the Khmer Rouge "reader" led to further unlawful arrests, tortures and murders. These confessions help prove this pattern and make it harder for the Khmer Rouge senior leaders on trial to plead ignorance. Using the confessions in this way comports legally with the ECCC Internal Rules and Article 15 of CAT, contrary to the assertions made by the defense teams and others. The ECCC has a very liberal admissibility standard for evidence, and leaves it to the Court's judges — who are best placed — to evaluate the weight, credibility and probative value of the evidence before them. For instance, it is within the responsibilities and capacity of these professional judges to allow in "evidence that the statement was made," attribute only non-hearsay value to the contested evidence (i.e. the torture victim gave the name of a "co-conspirator" who was immediately arrested and tortured by the Khmer Rouge), and not be influenced by the other impermissible uses of this evidence (i.e. the identified co-conspirator is a "criminal"). Judges at international criminal tribunals are regularly asked to carry out such evidentiary analysis. As such, the extracts from confessions should be admitted and judged by the Court as to its value and persuasiveness. In terms of CAT, a plain reading of Article 15 exhibits that the CAT drafters wanted to permit non-hearsay uses of torture evidence, because Article 15's exception — "except against a person accused of torture as evidence that the statement was made" — is itself a non-hearsay exception. Of note, the exception is unclear as to what portion of a "statement," if not all, can be admitted. Put together, the inclusion of a non-hearsay exception with the ambiguity as to the scope of this exception strongly indicates that the CAT's drafters wanted to leave room for judicial interpretation, and thus allow judges to determine how this exception may apply to the myriad of potential fact patterns. The drafters likely anticipated that to effectuate CAT's strong policy towards prosecuting any and all who are responsible for torture so to prevent future torture, an injection of ambiguity in Article 15's exception was necessary. Further adding to the exception's ambiguity, "against a person accused of torture" does not cement that the drafters only meant the physical perpetrators of torture. The more logical explanation in keeping with the object and purpose of CAT is that the drafters intended this exception to include anyone accused of being responsible for torture, including senior government officials that set torture-producing policies and/or gave orders to torture. The firmly established legal principles of command and joint criminal responsibility by definition include using such "on the ground" evidence against far removed government superiors and policy makers. Reading the exception in this manner also adheres to one of the main rationales and raison d'être behind Article 15, which is to remove the incentive to torture in the first place. If senior government officials know such torture evidence cannot be used against the torture victim and can also later be used against them in a prosecution, then their incentive to resort to torture is further diminished. The defenses' reading of the Article 15 exception, on the other hand, would not only remove this additional deterrent value, but would signal to senior government officials that they are shielded from torture evidence as long as they do not personally torture themselves — a manifestly unreasonable result that can hardly be justified under the CAT regime. The biggest concern with allowing the Khmer Rouge defendants to misapply Article 15 in this way is that it will eviscerate CAT itself. It befalls the cautionary proverb "the exception that swallows the rule." It bears stressing that the object and purpose of CAT is to eradicate both torture itself and impunity for those responsible for torture, an odious crime of universal prohibition and abhorrence. To this end, State Parties to CAT — Cambodia being one of them — are obligated to investigate, prosecute and punish commissions of torture on their territory. This explains why the majority of provisions in CAT's operative Part I deal squarely with the investigation and prosecution of torture, even authorizing State Parties to exercise universal jurisdiction to do so. Therefore, permitting Khmer Rouge senior leaders to limit the evidence that can be used to prove their responsibility for torture — especially when it is evidence their regime created — takes away a substantial tool in prosecuting them, not to mention undermining of the CAT regime itself. It is logically dishonest and incomprehensible to argue that CAT mandates for universal prosecution of all those accused of torture, yet permits torturers to prevent the admission into evidence of interrogation reports that record their crimes. Every defendant should have the 'fruits of their actions' used against them at trial, and the Khmer Rouge senior leaders are no different. The odd aspect of this debate is that international human rights groups have lined up in support [PDF] of the ECCC Defense teams' argument that such "torture tainted" evidence should be barred, period. In echoing the defense teams' arguments discussed earlier, these groups lend their support largely because of their unsaid belief that to allow such evidence into trial would lead to a "slippery slope" erosion of the universal protection against incriminating torture evidence being used against torture victims. However, the slippery slope argument is as unconvincing as it is simplistic. If ECCC prosecutors are allowed to use this evidence against these senior Khmer Rouge defendants — people accused of orchestrating torture on a mass scale — it is unclear how this limited exception will descend into a universal decline of CAT Article 15 protections for victims of torture. If anything, as argued above, such a development would create an evidentiary rule that subjects more torturers and their superiors — Khmer Rouge or otherwise — to a legitimate evidentiary use of their acts of torture, hence generating a deterrent effect. In line with the defense teams' case, the international human rights groups lodge other policy arguments that miss the mark. For instance, they argue that the integrity of the judicial process and the fair trial rights of the defendants are violated if such unreliable evidence obtained through such repulsive means as torture is allowed. This argument, however, only carries persuasive value when the evidence admitted is incriminating evidence against the victims of torture (which is not the case here where the ECCC Prosecution is pursuing those responsible for the widespread commission of torture). Khmer Rouge victims were not tortured to admit to their biographical data and history, to confess the policies and hierarchy of the regime, or even to their associations in some cases. The torture was employed to force confessions to imaginary or blameless "crimes;" indeed, many, if not all, admitted to these crimes just to make the torture stop. No one wants admitted — nor will the Court admit — the incriminating evidence the Khmer Rouge tortured to get, so the judicial process is not abused. Relatedly, admitting the non-incriminating evidence and non-hearsay inferences from the confession extracts is not a violation of the defendants' fair trial rights, because as already established, this is the fruits of their alleged criminal activity. It is well within the right of a prosecutor to confront them with this evidence. Not to be overlooked is the backdrop to this debate: defendants at the ECCC benefit from robust substantive and procedural due process and fair trial safeguards. Within their brief, these groups also assert that the confessions cannot be admitted because the law cannot support or appear to support the fruits of such barbarous and inhuman behavior. However, let us not forget the context of this argument. The ECCC prosecutors are charging senior Khmer Rouge leaders for international crimes, including torture directly, and the use of torture to gain "incriminating" evidence indirectly. They intend to use these confessions not to support the use of torture to obtain confessions, but to punish those that institutionalized torture, and did so in part to force confessions. The product of their alleged torture is, above all else, the most fitting evidence to use to secure their convictions. It follows then that it is a higher legal recognition of the horror of torture to admit such evidence in order to prosecute and imprison those willing to inflict torture or empower others to perpetrate it. The most disconcerting aspect of these groups' support is that it makes the perfect the enemy of the good. The main thrust of CAT is about preventing torture in part by prosecuting those responsible for it. To respect the overall object and purpose of CAT to deter and prosecute commissions of torture, the ECCC judges must interpret Article 15 to incorporate the admission of such confessions against government leaders responsible for bringing about the torture in the first place, a mode of interpreting CAT that Amnesty International itself promotes. While it may be difficult to delineate the contours of when torture evidence is admissible and when it is not, this difficulty has no bearing on whether such a judicial exercise should be done. On the contrary, it is the very importance of prosecuting torture perpetrators and their instigating superiors that demands that the ECCC Trial Chamber and other judiciaries undertake the difficult task of determining, within the object and purpose of CAT, when and in what ways the use of torture evidence is permissible. Many have said that due to the serious considerations at stake, reasonable minds can disagree on this issue. The more accurate comment is that reasonable minds should not disagree about an issue that goes to the very core of CAT itself — effective prosecution of those who orchestrate and use torture. One must believe that it is morally and legally more repugnant to bypass the full prosecution of those allegedly responsible for torture — including confronting them with the byproducts of their alleged torture — than it is to construe liberally an evidentiary rule found in the very law that calls for their prosecution. The disgust and revulsion that lead us to loathe the commission of torture should also lead us to recognize that Article 15 of CAT must never be interpreted to benefit those that perpetrate or employ torture. To find otherwise would send the wrong message to would-be perpetrators of torture and significantly weaken the CAT. Author's Note: A special thanks to Mr. Sam Sasan Shoamanesh for his thoughts and comments. Christopher "Kip" Hale is Senior Counsel at the American Bar Association (ABA) Center for Human Rights. Previously, he was a prosecuting attorney in the Office of the Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and has done legal defense work and advised Judges at the UN International Criminal Tribunal for the former Yugoslavia in The Hague. This article represents the views of the author and, except as specified otherwise, does not necessarily represent policy of the ABA or the Center for Human Rights. Suggested citation: Christopher Hale, ECCC Must Prosecute Those Responsible for Torture, JURIST - Hotline, Jan. 31, 2012, http://jurist.org/hotline/2012/01/christopher-hale-eccc-torture.php. This article was prepared for publication by Edward SanFilippo, the head of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Saturday, January 28, 2012

Statutory Ambiguity and Judicial Deference to the IRS 4:01 PM ET JURIST Guest Columnist Elizabeth Milito, Senior Executive Counsel for the National Federation of Independent Business Small Business Legal Center, says that a case recently argued before the Supreme Court will have significant implications for the jurisprudence surrounding judicial deference for regulations promulgated by executive departments... On January 17, 2012, the US Supreme Court heard arguments in United States v. Home Concrete & Supply, LLC, a case dealing with a US Treasury Department regulation and its interpretation, bringing together tax law, administrative law and questions of the constitutionality of agency actions. In December 2006, the Internal Revenue Service (IRS) was faced with a conundrum: the agency sought to bring charges of "overstatement of basis" against Home Concrete & Supply, LLC and several other taxpayers, based on their 1999 tax returns. The catch? The particular regulation the IRS was seeking to enforce, 26 USC § 6501(a), has a three-year statute of limitations, which in the case against Home Concrete expired in April 2003. The IRS then turned to another regulation within the tax code, 26 USC § 6501(e)(1)(A), which has a six-year statute of limitations, and attempted to claim that the "overstatement of basis" qualified as a violation under that regulation, which deals with omissions from gross income. Unfortunately for the IRS, the US Court of Appeals for the Ninth Circuit in Bakersfield Energy Partners, LP v. Commissioner of Internal Revenue and the US Court of Appeals for the Federal Circuit in Salman Ranch Ltd. v. United States both struck this down, based on the Supreme Court's ruling in Colony Inc. v. Commissioner of Internal Revenue, which held that a regulation substantively identical to the one the IRS was attempting to use against Home Concrete did not include "overstatement of basis" under its purview. The IRS's next step was to issue Treasury Regulation § 301.6501(e)-1, which fixes their problem by simply including an "overstatement of basis" as an omission from gross income, thus getting it under the six-year statute of limitations umbrella. The taxpayers responded by arguing that this is unconstitutional, and that it defies federal agency practice and Supreme Court precedent. Federal agencies are tasked with carrying out the laws issued by Congress, but they may not exceed the powers granted to them by creating legislation themselves. In order to keep the actual legislating in the hands of Congress, there are specific standards for how much discretion the agencies have when it comes to interpreting the laws. In Chevron USA Inc. v. Natural Resources Defense Council, Inc., the Supreme Court came up with a way to delineate the parameters: if a law is passed and Congress specifically addresses how to implement policy relating to a certain issue within its language, there is no deference to federal agencies when it comes to dealing with that issue — they must follow the law as it is written. If, however, the language in the statute is ambiguous, or if there is no language at all regarding an issue, the agency has the discretion to make regulations based on "a permissible construction" of the statute. Unfortunately for the IRS, the very first step in the Chevron process may halt its attempt to change its interpretation of the regulation in order to catch Home Concrete under the longer statute of limitations. The statute the IRS is attempting to change (26 USC § 6501(e)(1)(A)) is identical to another statute that previously went through the Chevron process in the Colony decision, and it was found to be unambiguous by the Court then. That Colony was decided before Chevron and its subsequent test most likely does not matter — the process the Colony Court went through to come to its decision fulfills all the requirements of Chevron, and the conclusion would be the same even had it come after the test was promulgated. The taxpayers are thus arguing that the IRS has no room to interpret the statute differently from its original determination, and thus the Court should not afford the IRS's new regulation the deference normally accorded such agency regulations, unless Congress itself decides to alter the statute first. Relying on the Court's decision in National Cable & Telecommunications Association v. Brand X Internet Services, the government argues that unless a statute unambiguously forecloses a particular interpretation of a statute, conflicting Court precedent will not displace that interpretation. The taxpayers argue in response that the decision in Brand X means that the only time a court's interpretation of a statute trumps an agency's is when the court's interpretation is based on its holding that the statute is unambiguous, and further, that the Court's holding in Colony that the statute was unambiguous applies here. If the Chevron analysis of the statute determines that it is on its face ambiguous and goes on to the second step of the process, the IRS's subsequent interpretation must be considered a "permissible construction of the statute." The taxpayers will be quick to point out what the Court stated in Bowen v. Georgetown University Hospital, when faced with a Chevron "step two" question: "[d]eference to what appears to be nothing more than an agency's convenient litigating position" is "entirely inappropriate." The government will need to show that the new regulation is a permissible reading of the statute, and, perhaps by showing that all of the formal processes for rule-making were followed, overcome the specter of their timing against the looming lawsuit in the process. The outcome of this case will be important for many reasons — it may either reaffirm the place of Chevron in the administrative law scheme or evidence a potential shift in how agency regulations are evaluated by the courts 28 years after that ruling. It may signal uncertainty in the tax code for taxpayers, or it may reaffirm a regulatory position that the IRS finds troubling. Regardless, the coming decision will be an important one for the government and taxpayers alike. Elizabeth Milito serves as Senior Executive Counsel with the National Federation of Independent Business (NFIB) Small Business Legal Center. NFIB is the leading small business association representing 350,000 small and independent businesses nationwide. Milito is responsible for managing litigation and amicus work for NFIB. Suggested citation: Elizabeth Milito, Statutory Ambiguity and Judicial Deference to the IRS, JURIST - Hotline, Jan. 28, 2012, http://jurist.org/hotline/2012/01/elizabeth-milito-irs-chevron.php. This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

Obama's NLRB 'Recess Appointments' are Unconstitutional 3:01 PM ET JURIST Guest Columnist Glenn Taubman, Staff Attorney for the National Right to Work Legal Defense Foundation, argues that President Obama's "recess" appointments of three new members to the National Labor Relations Board are invalid because the Senate was not actually in recess at the time of the appointments... On January 3, 2012, the term of National Labor Relations Board (NLRB) member Craig Becker expired, leaving the NLRB with only two members out of five seats. The NLRB ceased to function that day, since the Supreme Court ruled in New Process Steel v. NLRB that the NLRB lacks authority to conduct business in the absence of a quorum of at least three members. On January 4, 2012, President Obama announced that he was appointing three new members to the NLRB through "recess appointment": Members Block, Griffin and Flynn. However, the Senate was in session at the time of the president's appointments of the new board members. By unanimous consent, the Senate voted [PDF] to remain in session for the period of December 20, 2011 through January 23, 2012. Moreover, the House of Representatives never gave its consent to a Senate recess of more than three days, as would have been required by Article I, Section 5, Clause 4 of the Constitution. The president purported to appoint the new members without the advice and consent of the Senate that is required by Article II, Section 2, Clause 2 of the Constitution. Thus, it is quite clear that the president improperly attempted to name the new NLRB members as "recess" appointments pursuant to Article II, Section 2, Clause 3, even though the Senate was not in recess at the time. Numerous courts have held that an agency whose members have been improperly appointed in violation of the Appointments Clause of the Constitution or related provisions lacks authority to act, and that private parties who are adversely affected by such ultra vires agency action are entitled to injunctive relief, as seen in FEC v. NRA Political Victory Fund. In a Supplemental Brief filed on January 10, 2012, in an ongoing federal court case [PDF] challenging the NLRB's "Notice Posting Rule," the NLRB asserted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure that the purported new members are successors to the previously vacant offices and should be substituted as defendants in their official capacities. The co-plaintiffs in that case contested that filing [PDF], thereby seeking to challenge the lawfulness of the "recess appointments" and the ability of the NLRB to enforce and implement the Notice Posting Rule without a lawful quorum. The co-plaintiffs are the National Right to Work Legal Defense Foundation, the National Federation of Independent Business, the Coalition for a Democratic Workplace and two small individual employers, Southeast Sealing and Delaware Valley Racquet Clubs. The Foundation has a particularly acute reason for challenging the validity of the purported appointments, because Foundation staff attorneys represent workers in six cases currently pending before the Board. In the challenge to the Notice Posting Rule, the co-plaintiffs argue that all but two of the current putative members of the NLRB have been appointed in violation of the Appointments Clause of the Constitution. This is so because the president attempted to appoint Members Block, Griffin and Flynn while the Senate was in session, but without seeking or obtaining the Advice and Consent of the Senate, in violation of Article II, Section 2, Clause 2 of the Constitution. The president's claim that these appointments were somehow valid "recess" appointments is inconsistent with Article II, Section 2, Clause 3 of the Constitution, which requires that the Senate actually be in recess at the time when such appointments are made, as seen in Evans v. Stephens. The longstanding view of the Attorneys General who have issued opinions on this issue, prior to the current appointments, has been that the term "recess" as applied to intra-session appointments includes only those intra-session breaks that are of "substantial length." The Obama administration's Solicitor General stated on the record to the Supreme Court during the oral argument in New Process Steel that a recess must be longer than three days in order for a recess appointment to occur. The seminal opinion of Attorney General Harry Daugherty in 1921 established the consistently followed rule that the recess should be of such duration that the Senate could "not receive communications from the President or participate as a body in making appointments." No such break has occurred in the present circumstances. Indeed, the Senate was in session during the period when the appointments were made and was certainly able to receive communications and participate in the appointment process. This is conclusively proven by the fact that only days before the Obama recess appointments were made, during its ongoing pro forma sessions, the Senate passed the payroll tax bill and communicated with the president and the House with regard to that important legislation. The president signed that legislation, never protesting that it was invalidly enacted due to a congressional recess. On January 6, 2012, a political appointee of the Attorney General's office issued a Memorandum Opinion [PDF] purporting to justify the president's recess appointments. The opinion was not made public until January 12, 2012. In it, the Attorney General's Office has declared for the first time that the Senate's convening of periodic pro forma sessions does not have the legal effect of interrupting an intra-session recess otherwise long enough to qualify as a recess of the Senate under the Recess Appointments Clause. This opinion is contrary to the constitutional power vested in the Senate to "determine the Rules of its Proceedings" (Article I, Section 5, Clause 2). The opinion, by declaring the Senate's ongoing pro forma sessions to be ineffective to prevent a recess, also causes the Senate to be in violation of the constitutional requirement that neither House shall adjourn without the consent of the other for more than three days (Article I, Section 5, Clause 4). The opinion is also contradicted by the actual experience of pro forma sessions of the Senate, as noted above, which demonstrate that the Senate was in fact available to fulfill its constitutional duties to consider any appointments that the president wished to put forward for advice and consent. Thus, the unprecedented opinion of the Attorney General fails to justify the president's attempted recess appointments and should not be adopted by any court. Indeed, if the president has the power to determine for himself when the Senate is in recess, he can do so during any weekend, lunch break, or even when he believes that the Senators' debate has stalled and they are not working efficiently and effectively as a body. Among others, this position is a clear violation of Article I, Section 5, Clause 2, which makes each house the master of its own rules. Since neither the House nor the Senate declared themselves in recess, the purported recess appointments to the NLRB must fail. Glenn Taubman has served as a Staff Attorney for the National Right to Work Legal Defense Foundation since 1982. He is lead counsel for the Foundation in the "Notice Posting" case discussed in this article. Taubman holds a J.D. from Emory University School of Law, and an LL.M. in Labor Law from the Georgetown University Law Center. He clerked for the Judge Warren Jones of the US Court of Appeals for the Eleventh Circuit. Suggested citation: Glenn Taubman, Obama's NLRB 'Recess Appointments' are Unconstitutional, JURIST - Hotline, Jan. 28, 2012, http://jurist.org/hotline/2012/01/glenn-taubman-appointments.php. This article was prepared for publication by Brandy Ringer, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Friday, January 27, 2012

Copyright Case May Have Profound Effect on Treaty Power 6:01 PM ET JURIST Guest Columnist Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, says that in the recent Golan v. Holder decision, the Supreme Court may have opened the door to reconsidering the unconstitutional practice of augmenting congressional authority in the name of implementing treaties... While legal experts continue debating the intellectual property ramifications of the Supreme Court's decision in Golan v. Holder, I want to focus on the dog that did not bark: the treaty power argument that the government abandoned and the Court ultimately ignored. Although the government succeeded in persuading a majority of the Court that it has the power to withdraw certain works from the public domain, it relied solely on the Constitution's Copyright Clause to do so — even though the impetus for the legislation was a trade agreement that amended the Berne Convention for the Protection of Literary and Artistic Works. This development is significant because the government had been implying — and its amici stating explicitly — an alternative ground for Congress's authority to do what it did: that the "re-copyrighting" law was a necessary and proper means of accomplishing the executive power to make treaties. That treaty power argument was not completely out of left field, because the ruling in Missouri v. Holland, an obscure 1920 case concerning the Migratory Bird Treaty Act between the US and Canada, has long been interpreted to suggest that Congress's powers can indeed grow when necessary to implement a duly ratified treaty. According to the conventional gloss on Justice Oliver Wendell Holmes's five-page opinion in Holland, even if Congress has no enumerated power to pass, say, general criminal laws, Congress's power expands to allow such legislation if, say, a treaty with France demands that we pass it. Thus, foreign nations and the executive branch are given the power to change one of the most hotly debated and carefully crafted sections of the Constitution, the scope of Article I congressional power. This bizarre situation led me to join Georgetown law professor Nicholas Quinn Rosenkranz in filing an amicus brief [PDF] in Golan on behalf of the Cato Institute, highlighting the problems with an expansive interpretation of the treaty power (an idea that Professor Rosenkranz had illustrated in a previous article). We argued that, as a matter of constitutional structure, history and logic, a treaty cannot increase Congress's legislative powers. Not only is the power to "make treaties" distinct from the power to execute treaties already made, but such an expansive interpretation of the treaty power would allow Congress and the executive to circumvent the Article V amendment process. In short, Holland is a structural and doctrinal anomaly in tension with other precedent and based on a misreading of constitutional history. It should be overruled or at least reinterpreted. In any event, whether in response to our brief or under the shear force of Justice Scalia's questioning, the government gave up on the treaty power track in one fell swoop during the Golan oral argument [PDF]: JUSTICE SCALIA: It seems to me Congress either had the power to do this under the Copyright Clause or it didn't. I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government. I mean, this is either okay under the copyright clause or it is not. SOLICITOR GENERAL VERRILLI: We completely — JUSTICE SCALIA: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government — SOLICITOR GENERAL VERRILLI: We completely agreement with that, Justice Scalia. That is a positive development, but it is even more remarkable that the Golan dissent likewise failed to reach the Holland issue, even though it logically should have. Since Justice Breyer, joined by Justice Alito, thought that the Copyright Clause did not give Congress the power to pass the relevant statute, he had to see whether there was other authority for it — namely, the treaty power. However, there is no discussion of this issue, or even a citation to Holland. Instead, Justice Breyer simply concluded that "the [Berne] Convention cannot provide the statute with a constitutionally sufficient justification that is otherwise lacking." So where does that leave us? For one thing, the continuing expansive interpretation of Holland is surely in doubt. We need look no further than the the above exchange between Justice Scalia and Solicitor General Verrilli to exhibit such skepticism. Also, former solicitor general Paul Clement argued against the treaty power in the remanded case of Bond v. US — a bizarre case involving a chemical weapons treaty that the Supreme Court unanimously sent back to the US Court of Appeals for the Third Circuit last year. At oral argument, the Court seemed intrigued by, and even sympathetic to, Clement's position that the government lacked the power to use the implementation of an international treaty to prosecute the defendant for what was effectively assault. Just as Bond may make a return visit to the Supreme Court, the Court's ruling in Golan may have provided a glimpse of where the Court will go with the treaty power when it — or some other appropriate case — gets there. Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and is editor-in-chief of the Cato Supreme Court Review. He is often an expert commentator for CNN, Fox News, Univision and other various nationally and internationally syndicated radio and television programs. Suggested citation: Ilya Shapiro, Copyright Case May Have Profound Effect on Treaty Power, JURIST - Hotline, Jan. 27, 2012, http://jurist.org/hotline/2012/01/ilya-shapiro-treaty-power.php. This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST