Overzealous campaign disclosure laws can stifle debate and endanger private citizens
3:19 PM ET
Erik Stanley [Senior Legal Counsel, Alliance Defense Fund]: "The Citizens United v. Federal Elections Commission case is pending for decision before the US Supreme Court, and the case raises some serious constitutional questions. ADF filed a friend-of-the-court brief focusing on one specific - and highly important - portion of the case.
The primary issue in the case is whether a film, Hillary: The Movie, is an "electioneering communication" in violation of the Bipartisan Campaign Finance Reform Act (BCRA). A subsidiary issue in the case is related to section 201 of the BCRA. That section requires any corporation that expends more than $10,000 on an "electioneering communication" to report those expenditures to the FEC and to disclose the identities of donors who contributed more than $1,000. ADF argues in its brief that the reporting and disclosure requirements of section 201 are unconstitutional. And the reason is not what those who believe in "vast, right-wing conspiracies" might think.
ADF has been intimately involved in the ongoing battle to protect marriage in California. As a part of that battle, ADF witnessed the destructive impact of overzealous disclosure laws. During the 2008 election cycle, California voters approved Proposition 8 protecting marriage as the union of one man and one woman. California's election laws require a proposition campaign committee to report and disclose the identity of any donor who contributed more than $100 to a proposition campaign. Opponents of the campaign took great advantage of this, and after voters approved Proposition 8, a backlash ensued against those who supported the campaign.
As the ADF brief filed in the Citizens United case explains, "Supporters of Proposition 8 have been subjected to threatening and harassing phone calls, e-mails, and postcards. Some of the phone calls and e-mails have been accompanied by death threats." The brief quoted one such e-mail, sent to a church, that stated, "Consider yourself lucky. If I had a gun I would have gunned you down along with each and every other supporter....I've also got a little surprise for Pasor [sic] Franklin and his congregation of lowlife's [sic] in the coming future....He will be meeting his maker sooner than expected....If you thought 9/11 was bad, you haven't seen anything yet."
Beyond e-mails and death threats, churches received envelopes containing a suspicious white, powdery substance; individuals who contributed a small amount in support of Proposition 8 were forced to resign from their jobs; businesses were targeted for harassment and picketing; churches have been vandalized, spray-painted with epithets such as "PROP H8TE"; and one group conducting a prayer walk was physically assaulted. All of these individuals gave very small amounts to support Proposition 8 but nonetheless have been subjected to retaliation and violent censorship. Perhaps most worrisome to Proposition 8 supporters is a Web site that contains a Google map pinpointing their homes.
The ADF brief points out that electoral discourse cannot occur under such conditions. Compelled disclosure laws such as California's and section 201 of the BCRA stifle debate, censor electoral discourse, and do not accomplish any important governmental interest. Indeed, some of the supporters of Proposition 8 have testified in court that they will likely not support another ballot initiative in the future if their names will be disclosed to the public. In its brief, ADF urges the court to take into account these recent acts as a result of compelled disclosure laws like section 201 and requests that the court find section 201 unconstitutional. Electoral discourse should be robust and free and not stifled and censored by such laws."
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.
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 Wednesday, March 25, 2009
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Oral arguments in Citizens United highlight flaws in campaign finance laws
5:02 PM ET
Steve Simpson [Senior Attorney, Institute for Justice]: "In the case of Citizens United v. FEC, the US Supreme Court confronted the inescapable logic of the campaign finance laws: if the government can ban a broadcast advertisement that is paid for by a corporation, then it can ban movies and even books as well. In fact, during the argument, Justice Samuel Alito asked the government whether the ban on corporate funding of advertisements would logically apply to a book that called for the election or defeat of a politician, and the government said that it would.
When the government is taking the position that it can ban books because they are financed by corporations, it is time to scrap the campaign finance laws. This is America. We don't ban books here.
The government argued it is not actually banning advertisements or movies or books, but is only preventing corporations from paying for them with corporate treasury funds. But saying a corporation can't spend "treasury funds" on speech is like saying you can't spend money from your bank account on speech. It is a distinction without a difference. The fact is, it takes money - sometimes even corporate money - to get speech heard. If the government can regulate the manner in which we make our speech effective, it can prevent us from speaking.
The Court also briefly addressed the disclosure laws that would require those who financed the creation of "Hillary: The Movie" to disclose their names and addresses on a government website. The government's position is that donors should be able to maintain their privacy only if they can show evidence of past harassment. But, as Justice Roberts pointed out, by the time a speaker can show harassment, the harm has already been done.
Disclosure laws destroy the right to privacy and anonymity and often lead to harassment of those who choose to join with others, rather than to speak out on their own. If we take the rights of association and privacy seriously, then the burden should be on the government to show that disclosure is necessary to prevent harm."
The Institute for Justice filed an amicus brief on behalf of Citizens United.
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.
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North Korea using captured journalists as pawns in policy disputes with US
9:18 AM ET
Timothy Spence [Press and Communications Manager, International Press Institute]: "North Korean leader Kim Jong-Il is no stranger to ruthlessly muzzling press freedom at home to bury the truth about natural disasters, famine, economic despair and his regime's diplomatic tussles.
But the apparent capture of two American journalists on March 17 by North Korean border guards may be more than just a routine assault on press freedom. As in Iran, which recently arrested an American reporter on charges of trying to buy a bottle of wine, the leaders of these countries seem to be using US journalists as pawns in their own power games with Washington.
The two journalists detained for "illegally intruding" into North Korea across the Chinese border have been identified as Euna Lee and Laura Ling. They were apparently preparing a report for US-based Current TV on North Koreans who are seeking refuge in China in increasing numbers. Iranian authorities arrested Roxana Saberi, a free-lancer who has worked for NPR and Britain's BBC, in February.
Journalists are neutral observers. They know no borders when it comes to gathering information and hunting down the truth. They should not be held as hostages in larger policy disputes – in these cases, perhaps to test the new US administration's stated willingness to use diplomatic means to end North Korean and Iranian atomic ambitions."
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.
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Fifth Circuit gives overly narrow reading to church-state precedent in "moment of silence" case
7:28 PM ET
Alex Luchenitser [Senior Litigation Counsel, Americans United for Separation of Church and State]: "Last week, the US Court of Appeals for the Fifth Circuit upheld an amendment to a Texas law that provides for a moment of silence in the public schools. The amendment changed the law by enumerating "pray" as one of the activities that students could engage in during the moment of silence.
The Fifth Circuit's ruling is troubling because of the narrow reading it gives to Supreme Court church-state precedents. The Supreme Court has held that government conduct is unconstitutional if its primary purpose is to advance religion. The principle issue in the case was whether the amendment to the Texas law satisfied this test.
The Fifth Circuit decided that the purpose of the whole amendment was what mattered, not the purpose of the enumeration of "pray" as a moment-of-silence activity. The amendment made a number of other changes, including requiring students to recite the pledges of allegiance to the US and Texas flags, and making the moment-of-silence mandatory instead of optional.
Relying on those changes, the Fifth Circuit concluded that the amendment's primary purposes were legitimate and secular: fostering patriotism, and providing a period for thoughtful contemplation. But those changes were not related to the addition of "pray," and those purposes do not explain why the legislature specifically chose to enumerate "pray."
Rather, there was considerable evidence in the legislative history that "pray" was added in order to promote prayer in schools. Indeed, another Texas statute had already given students a right to pray during the moment of silence, so the enumeration of "pray" in the amendment was quite unnecessary. But the Fifth Circuit was not persuaded by these facts, concluding that the Texas legislature's action was unconstitutional only if a religious purpose "permeated" the entire amendment.
It is easy to see how the Fifth Circuit's view of the law could eviscerate the constitutional requirement that legislatures not act with a religious purpose. In order to get away with passing a law that has a religious objective, all legislatures will need to do is include other provisions in the same legislation that have a non-religious purpose."
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.
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Release of Uyghur detainees in US will prompt only temporary Chinese protest
2:06 PM ET
Alim Seytoff [General Secretary, Uyghur American Association]: "If the United States chooses to accept the Uyghur detainees and resettle them in the US, the only thing China can do is to loudly protest such a decision by the Obama Administration. China will use its state-controlled media to attack the US, claiming that "the U.S. is maintaining a double-standard in the global war against terror" - a claim which is really nonsense. The Chinese Foreign Minister may also call in the US Ambassador to China and express China's strong disappointment over this decision and ask for an official explanation (the US Ambassador should not be too concerned with such a protest). That is pretty much all China can do. The Chinese outcry may last for a few weeks, then it will gradually fade away.
When the United States transferred five Uyghur detainees to Albania in May 2006, China loudly protested the decision and later sent a delegation to Tirana to pressure the Albanian government. The Chinese delegation may have threatened the Albanian government with retaliation, but in the end, China was able to do nothing. The five Uyghurs continued to live in Albania even after Chinese threats. One of them later went to Sweden and sought asylum. Others are still living there in peace.
The key reason why the Chinese government is aggressively lobbying and threatening mostly Western governments from taking these Uyghur detainees is it fears that, in addition to the US government, freedom-loving people in Western democracies will find out that these Uyghur detainees are not terrorists as the Chinese government has always been claiming, but ordinary peaceful people who were severely persecuted by the Chinese government. As a result, people in the West will become more aware of the detainees tragic situation, as well as the plight of the Uyghur people under China's authoritarian rule. Knowledge of both of these situations will bring about the realization that the Uyghur situation is almost exactly the same as the situation in Tibet. Then, the Chinese government's argument that it is fighting against terrorism from so-called East Turkestan forces will simply collapse.
Since the terrorist attacks of September 11, 2001 in the United States, the Chinese government has been presenting itself to the world as a victim of Uyghur terrorism. However, the release of Uyghur detainees into the Western world will prove that the real victims of 9/11 in China are the Uyghurs, and the Chinese government is actually the brutal evildoer. This may most likely shift Western public opinion in favor of Uyghurs' peaceful struggle for their human rights, just as in the Tibetan struggle. This is the last thing the Chinese government wants to see happen. That is why it is vehemently opposing any Western government, especially the US government, that considers accepting these Uyghur detainees. In short, the Chinese government's ugly face of six decades of systematic, severe and widespread human rights violations against the Uyghur people will be exposed to the whole Western world, despite Chinese leaders' best efforts to project an image of benevolence and good governance."
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.
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Indictment of Bernard Madoff's accountant could signal further liability for auditors
5:07 AM ET
John H. Eickemeyer [Shareholder, Vedder Price P.C.]: "The indictment if Mr. Friehling is hardly unexpected, as is the accompanying civil action by the SEC. The conduct alleged in the complaint certainly goes beyond poor auditing - in essence, Mr. Friehling is alleged to have done virtually no auditing at all. Mr. Friehling also allegedly issued independent auditor's reports on Madoff's investment company while not being independent and while telling the American Institute of Certified Public Accountants (AICPA) that he did not perform audits. It is hard to imagine a set of facts better suited for a criminal prosecution against an accountant.
Mr. Friehling's case may be unique given his long history with Madoff and his ability - if he was truly doing audits - to gain access to the internal workings of Madoff's company. However, other auditors may face civil liability based on their audits of funds or other entities who invested client moneys with Madoff. Some suits have already been filed alleging that auditors should not have readily accepted brokerage statements from Madoff's company on their face and should have investigated further to discover whether Madoff was really investing money in the ways he claimed.
While few accountants are likely to face prosecution as Mr. Friehling does, widespread acceptance of the theories of liability already asserted against auditors in the Madoff-related civil suits, and against accountants who recommended investments with Madoff to their clients, could have a devastating impact on the accounting profession."
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.
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Same-sex plaintiffs' challenge to DoMA's constitutionality shows contempt for democracy
4:35 PM ET
Christopher Gacek [Senior Fellow, Family Research Council]: "In reaction to the possibility that Hawaiian courts would mandate same-sex marriage for that state in the mid-1990s, Congress enacted the Defense of Marriage Act (DoMA). The vote in the US Senate was 85-14; in the US House of Representatives it was 342-67. President Bill Clinton signed DoMA into law on September 21, 1996. FRC supported the effort to enact DoMA.
DoMA had two objectives: 1) to define "marriage" and "spouse" traditionally in federal law and for federal programs (see 1 U.S.C. § 7); and 2) to affirm the power of each state to make its own decision regarding acceptance or rejection of same-sex marriages with respect to the requirements of the Full Faith and Credit Clause (see 28 U.S.C. § 1738C). For our purposes, we are concerned with DoMA's definition of marriage which reads as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
This language has not been amended since 1996.
More than seven years after the passage of DoMA, the Massachusetts Supreme Judicial Court overturned that state's long-standing, traditional definition of marriage in Goodridge v. Dept. of Public Health. Same-sex marriages became legal in Massachusetts on May 17, 2004. The plaintiffs in the current federal case are or were same-sex, married Massachusetts citizens who, for various reasons, do not qualify for certain federal benefits because they are or were not married under federal law. See DoMA. As noted in their complaint (p. 90), the plaintiffs seek to "enjoin the defendants [U.S. agencies] from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex."
The real question before us is whether the plaintiffs can find federal jurists who will overturn a perfectly sensible and clearly-written federal marriage statute in the same way this was accomplished in Massachusetts. DoMA defined marriage in the manner it has been known in Western Civilization for thousands of years and which comports with obvious biological realities. It is not remotely irrational or malicious. Congress was acting reasonably when it enacted DoMA thereby providing a uniform marital definition for its numerous statutes and programs. If 1 U.S.C. § 7 is overturned there will be several readily recognizable effects.
First, the moral authority of the Courts in the United States will be further damaged. Maintaining the rule of law and a republican form of government rests on the participants respecting our laws and the Constitution. The sort of social-judicial engineering that would be required to obtain the outcome the plaintiffs seek demands nothing less than the exercise of raw judicial power. If some of our fellow citizens wish to change the federal definition of marriage, they can accomplish this through our elected representatives in Congress. To do otherwise shows little more than contempt for representative self-government and its expression in legislative majority rule.
Second, it is hard to imagine how declaring 1 U.S.C. § 7 unconstitutionally discriminatory would not lead eventually to the second part of DoMA being struck down. Consequently, a victory by the plaintiffs would jeopardize the statutes and constitutional amendments of the forty-plus states that have rejected the recognition of foreign same-sex marriages.
Third, assuming arguendo that state traditional marriage definitions can withstand constitutional scrutiny after a victory by these plaintiffs, a complex and unpredictable interaction between federal and state law may develop especially in mixed federal-state programs (e.g., those state programs that rely on some federal funding and which are subject to federal rules and guidelines). Much would depend on how the federal courts invalidated DoMA. What would the federal layering effect be on state marriage laws and policies? A great deal of lengthy and expensive litigation would be bound to follow as these complex problems are sorted out.
For these and other reasons we should all hope that the federal court in Massachusetts acts with proper restraint and dismisses these claims."
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.
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Supreme Court should have reconsidered entire issue of involuntary union dues extraction in Ysursa ruling
8:54 AM ET
Timothy Sandefur [Senior Staff Attorney, Pacific Legal Foundation]: "Thirty years ago, in Abood v. Detroit Board of Education, the Supreme Court held that the Constitution is not offended by state laws that take money directly from workers' paychecks to subsidize the activities of unions. This is even true when the subsidies are taken from workers who have chosen not to join the union. The theory here is that non-members benefit from union activities, and if they did not pay for them, they would be "free riders," unfairly obtaining benefits that union members paid for. The problem with this is that this theory would allow any organization to extract coerced subsidies on the theory that people benefit in some indirect way from their activities. And the free rider theory simply does not overcome the moral objection to forcing people to pay for services they did not ask for and may not want. Of course, unions could avoid the free rider problem by writing contracts that only cover their own members, but this would require them to compete with non-union labor.
The Supreme Court has, however, drawn an important line in the coerced union fees cases: unions may not force non-members to subsidize political messages with which they disagree. Unfortunately, this line, while clear, is also easy to evade. Unions have often refused to disclose how much money they spend on political activities, which enables them to deduct most of the usual dues amount from workers' paychecks even when they have chosen not to join the union.
More importantly, unions often adopt unnecessarily complicated procedures that force workers to demand refunds of the portion of their money taken for political activities. These procedures can be so time-consuming and complicated, and the amount of money at stake so small, that workers often just give up rather than spend the time and incur the workplace hostility that goes with opposing the union. Two years ago, in the case of Davenport v. Washington Education Association [PDF file], unions even argued that requiring them to ask permission before taking money from dissenting workers violated the union's free speech rights! The Supreme Court disagreed, rightly holding that the First Amendment does not give unions the right to money earned by others.
In Ysursa v. Pocatello Board of Education, decided on February 24, the Supreme Court reiterated that point: unions have no First Amendment right to deduct money directly from the paychecks of workers. And yet the Court's decision also overlooks some important points that weaken its effectiveness in securing individual rights.
In that case, the state of Idaho had passed a law that prohibited both public and private sector employers from withholding money from workers' paychecks to support political activities, even if the worker wanted the employer to make those deductions. In theory, this law prohibited deductions from going to any political activities, whether by a union or by the Republican party or by anyone else, but since unions are the only organizations that really employ these programs, it was clear that the law was aimed principally at unions. What's more, the state ended up conceding that it was unconstitutional to forbid private sector employers from making these deductions. The question therefore was whether the state could forbid public sector employers - that is, city and county governments - from deducting money from paychecks to support political causes that everyone knows are primarily oriented around unions. Public employees could ask employers to withhold money to support charities like the United Way, but could not ask employers to withhold money to support a political organization.
The union viewed this case as a kind of discrimination: although other institutions were allowed to participate in paycheck-deduction programs, union political activities were singled out and disallowed. This, the unions argued, violated the First Amendment. But to the state, on the other hand, this was simply a management decision by the state about how cities may organize the workplace, and it had nothing to do with the First Amendment.
The Supreme Court decided, 7-2, in favor of the state. Opening the decision with a clear statement, Chief Justice Roberts wrote, "The First Amendment prohibits government from 'abridging the freedom of speech;' it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression." The Idaho law didn't restrict speech, it merely chose not to fund speech. And although the government does in some cases have to accommodate free speech by private individuals or groups, "it is not required to assist others in funding the expression of particular ideas."
While this is a gratifying acknowledgment, there are two problems with it. First, it does not really go far enough to make a significant difference in the lives of workers whose money is taken against their will to support labor unions. For decades now the Court has been reiterating that the First Amendment does not entitle unions to extract money from workers' paychecks for political activities. But because unions are able to take money for other activities, and because they are not very scrupulous about reporting their expenses, unions can avoid this prohibition in practice. What's more, given that the Court still does not require that unions ask permission first, unions can still force dissenting workers to seek refunds - a procedure that effectively silences most dissent.
Second, the Court's First Amendment reference doesn't really resolve the Ysursa case itself. This case is not a simple one of the state choosing not to subsidize speech - it's a case in which the state forbids workers who wish to subsidize and choose to subsidize speech in this way from doing so, even though the state allows workers to subsidize other organizations, such as charities. As Justice John Paul Stevens wrote in his dissenting opinion, if the state's goal was to avoid the appearance of favoring one political side over another, then it should not at the same time allow workers to choose paycheck deductions to support charitable activities, which often are politically oriented also. "Such deductions will often present a similar risk of creating an appearance of political involvement as deductions for covered political activities." This and other factors made it clear to Justice Stevens that the challenged law was "not a limitation on a state-law entitlement that specifically benefits unions, but rather a union-specific exclusion from a generally available benefit." Indeed, other factors indicated that the statute was an attempt to target union political activity: the law was originally applicable to private employers also, which undermined the state's argument that the law was designed to ensure that the government maintained an image of political neutrality. And the statute appeared in the state's labor code, and included other provisions dealing specifically with unions. But there was a problem with Justice Stevens' dissent, as Justice David Souter pointed out: the union had basically waived this viewpoint neutrality argument. Justice Souter believed the case should simply have been dismissed as improvidently granted.
Although he said it in a different context, Justice Souter's opinion contained one line that very effectively summed up the problem with the Ysursa case: "A decision that ignores the elephant in the room," he wrote, "is a decision with diminished authority." That's surely true. But the elephant in the room in these cases is the fact that unions use paycheck deduction programs to force dissenting workers to subsidize their activities, political or not, without asking permission. Workers who disagree with the union or don't want to support it, are subject to delay, obstruction, harassment and intimidation when they try to assert their rights. Most dissenting workers simply give in and allow the union to take their money rather than make waves and incur hostility in the workplace. And this situation is made possible entirely by the intertwinement of government and labor unions - an intertwinement that is unjust and unconstitutional.
The Supreme Court ought to reexamine the precedent that allows unions to extract money directly from workers without asking permission. There is already good reason for requiring unions to ask first. Many due process cases have made it clear that government may not take away a person's property without giving that person a hearing first, whenever possible. And the court has repeatedly said that it will not presume that an individual intends to waive a fundamental constitutional right without some explicit decision to do so. Moreover, legal history since the Abood decision has made clear how much unions abuse this power for their own ends. The real issue is not whether the Constitution entitles unions to take money directly from workers and the real question is whether the Constitution allows this procedure. That's the real elephant in the room. That power has made labor unions the leading exploiters of workers in the American economy today - not counting government itself. And until the Supreme Court finds that the Constitution forbids them from seizing workers' money without permission, cases like Ysursa are going to continue to be a problem.
The Court should separate unions and government, and forbid union leaders or business managers to enrich themselves through government intervention. Unions, like every other business or community organization, ought to be subjected to the fair and beneficial process of competition and voluntary consent. That alone can secure the rights of individuals and ensure that neither side in the debate between unions and management is subsidizing its expression at the expense of the opposition."
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.
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President Obama should address easily exploited non-uniform state gun laws
8:03 AM ET
Frida Berrigan [Senior Program Associate, Arms and Security Initiative, New America Foundation]: "Hidden amidst news of the global financial meltdown, the Bernie Madoff guilty pleas and spring's slow approach in the last week, was the story of global gun violence. A German rampager killed 16, an Alabama man killed 10 people, a man killed five people at a birthday party in Miami, in the North of Ireland three people have been killed and many more wounded in a new wave of political violence, and in Mexico the war between heavily armed drug gangs and police and security forces grinds on.
What is to be done? In Germany, Chancellor Angela Merkel is calling for stricter enforcement of a set of gun control laws already deemed some of the strongest in the world. This should serve as a wakeup call to policy makers in the United States where gun control laws are a patchwork of strict to lax. Depending on the state, a would-be gun-buyer can trade cash for guns over a card table at a flea market, or be subjected to a background check, a seven-day waiting period, and a one-gun-a-month policy. Savvy gun buyers exploit the differences in state laws, forge documents, set up straw purchasers and circumvent the law in countless other creative and malicious ways. There are so many guns being bought this way, that the Mexican ambassador to the United States estimates that 2,000 "Made in the USA" guns cross the border every day.
Stronger, more uniform laws that are strictly enforced will shrink the loopholes through which angry people walk to grab guns and make mayhem.
The "right to bear arms" is protected by our Constitution but it cannot be interpreted as the right buy an assault rifle to mow people down in a mega-church parking lot. Allowing the Pastor to pack heat is not an adequate response.
President Barack Obama has his hands full with the economy, the budget and foreign policy flare-ups from Pakistan to Madagascar, but we live in a country where 30,000 Americans are killed and another 70,000 are wounded every year by gun violence, where rampages like the ones that took ten lives in Alabama or five in Miami are commonplace and we are in critical need of leadership on this issue."
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.
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Wednesday, March 18, 2009
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Obama Administration's detention authority must incorporate law of non-international armed conflict
8:01 AM ET
Gabor Rona [International Legal Director, Human Rights First]: "Last Friday, the Obama administration for the first time articulated in court its vision of authority to detain persons who are now being held at Guantanamo. The government's brief in the In Re: Guantanamo Bay Detainee Litigation case in the District Court of the District of Columbia notes that this is only about Guantanamo - that detention policy going forward is the subject of a distinct process pursuant to an executive order of January 22, 2009. But the brief has significance beyond Guantanamo since it sets out a general view of detention authority for all persons suspected of association with the 9/11 plot, the Taliban or al Qaeda. There is much to be disappointed about for those who had the audacity to hope for a sea change from Bush administration policies. But before launching into criticism of the brief, let's take a look at what it has changed:
1. Bush view: The president, as Commander-in-Chief, has absolute and unfettered power to determine who may be detained, with or without criminal charge, trial or judicial review (The Supreme Court in 2008 clipped the wings of the Bush administration on this claim in the Boumediene case, which applies the constitutional right of habeas corpus review to Guantanamo detainees). The Bush administration also claimed authority to detain under the Authorization for the Use of Military Force ("AUMF"), Pub. L. 107-40, 115 Stat. 224 (2001) [PDF file].
1. Obama view: The president's detention authority is conferred by Congress, in this case, per the AUMF.
2. Bush view: The president has the authority to detain persons that the president determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The president also has the authority to detain persons who were part of, or supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
2. Obama view: The president has the authority to detain persons that the president determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
(Hint to save you eye strain: the word "substantially" does not appear in the Bush view).
3. Bush view: The detainees are "enemy combatants" in a "global war on terror."
3. Obama view: The term enemy combatant is being retired. Apparently, so is the term "war on terror."
4. Bush view: "We're right and will not budge."
4. Obama view: "We may yet further modify our position."
Also, let's not neglect what significant changes in detainee policy have been percolating since Inauguration Day 2009:
1. Guantanamo will close.
2. Military commission trials have been suspended and may or may not resume in a pre-existing or different form.
3. Bush administration visions of unfettered executive authority to determine how detainees will be treated/interrogated (and definitions of torture that exclude torture) have been rendered inoperative by an Obama executive order (although both Congress, in the Detainee Treatment Act and the Supreme Court, through the Hamdan decision, have also previously weighed in against the Bush administration on these issues).
4. No more "black sites" or secret detention. All detainees will henceforth be entitled to, and places of detention will be subject to, visits from the International Committee of the Red Cross.
5. The Obama administration has agreed to vacate an awful, fractured 4th Circuit decision in the al-Marri case that supported the Bush administration's view of authority to indefinitely detain as an "enemy combatant," without charge or trial, a legal resident in the US who was never alleged to have directly participated in hostilities against the United States. (But the Obama administration has not renounced the power to detain such persons without charge under the AUMF).
In its brief filed Friday, the new administration hews closely to its predecessor's erroneous views on the scope and sources of detention authority; albeit with somewhat more sophisticated arguments than those we've heard before. For example, the brief cites Hamdi v. Rumsfeld for the proposition that detention authority is "informed by principles of the laws of war." The Hamdi court did address whether a person captured on a battlefield can be detained under the laws of war. Hamdi, however, was captured in an international armed conflict between two states - the US and Afghanistan - a type of conflict for which the Third and Fourth Geneva Conventions explicitly provide detention authority. It is true that the international phase of the conflict was over by the time Hamdi was decided, suggesting that the court meant to apply the laws of non-international armed conflict to Hamdi's detention. But the court never addressed the international/non-international armed conflict distinction, despite the fact that the Geneva Conventions articulate detention authority only for international armed conflict. There is, in fact, no such authority in the laws of war that apply in conflicts between a state and a non-state armed group (namely in Common Article 3 of the Geneva Conventions and their Additional Protocol II) even if that armed group is of transnational scope.
The reason for this distinction is sound. In state-to-state armed conflict, combatants have a privilege of belligerency, meaning they cannot be prosecuted under domestic criminal law for mere participation in hostilities, so their detention must be governed by other law, namely the international law of international armed conflict. Non-state fighters, however, are the hallmark of non-international armed conflict and they have no privilege of belligerency. They are mere criminals under applicable domestic law and so, there is no need for the laws of war to supply detention authority in such conflicts. If they are to be detained, whether or not for criminal trial, it must be pursuant to domestic law.
So now we see why the administration offered only that detention authority is "informed by principles of the laws of war" and could not say that it was "provided by the laws of war." It then went on to suggest that the laws of war applicable to "our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban" are "less-well codified" than the rules of international armed conflict. Not so oddly, given its intention to manufacture detention authority from a branch of law in which it does not exist, the brief does not dare mention this type of armed conflict by name: non-international armed conflict. Likewise, the brief does not admit that detention authority in such conflicts derives from domestic law. Instead, and probably because the AUMF is silent on the matter of detention, the brief claims that "(p)rinciples derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict." This is wrong. There is no need to analogize from international armed conflict rules to get to detention authority in non-international armed conflict. Rather, it is necessary to look to domestic law.
The claim that non-international armed conflict detention authority must be grounded in domestic law, rather than be presumed to exist as per international law, is not a mere technical distinction without a difference. The principle of legality and prohibition of arbitrary detention are reflected in the International Covenant on Civil and Political Rights, to which the US is a party. Article 9.1 says "(n)o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." The grounds and procedures for detention are well established in the law of international armed conflict and are absent from the law of non-international armed conflict. Therefore, compliance with Article 9.1 requires that those grounds and procedures be established in domestic law.
The brief notes that "(p)etitioners have sought to restrict the United States' authority to detain armed groups by urging that all such forces must be treated as civilians, and that, as a consequence, the United States can detain only those 'directly participating in hostilities.'" The government is correct that this argument should be rejected since "direct participation" determines who may be targeted, not who may be detained and because "law-of-war principles do not limit the United States' detention authority to this limited category of individuals." Indeed, in international armed conflict, the Geneva Conventions explicitly provide detention authority over civilians who constitute a serious security threat, but may not have participated in hostilities. By making this argument, petitioners have provided the government with an easy target. But just because the petitioners are wrong, it doesn't mean the government is right to suggest that detention authority in non-international armed conflict should be presumed by analogy to international armed conflict rules.
President Obama recently said that henceforth, US detention policies and practices will be consistent with our international legal obligations. Our courts are obligated to require no less. The District Court of the District of Columbia should reject the government's recently stated vision of detention authority. Good law is also good policy. And they would both be served with the following framework for detention policy going forward:
1. For persons detained from within or brought to the US, it is difficult to imagine that anyone who fits the Obama administration's criteria for detention without charge or trial (virtually identical to the Bush administration's definition of enemy combatant) cannot be convicted of material support for terrorism, at the least. Those who can be prosecuted should be prosecuted in the normal course of the American federal criminal justice system. Those who will not be prosecuted should be repatriated or released to a third country, where they may or may not be subject to further proceedings, with the caveat that they not be transferred to any country where they face a substantial risk of torture or abuse. Yes, there may be a few individuals falling through the cracks because the material support law did not have extraterritorial reach at the time of their detention (it does now), and there are no other crimes with which to charge them either because there is no evidence to support additional charges, or the evidence is tainted because it was obtained through coercion. First, we don't know that anyone fitting that description exists. Second, if someone does fall into that category, is that reason to construct an entirely new architecture of questionable legality?
2. Persons detained abroad in either non-international armed conflict or non-armed conflict circumstances are subject to, and entitled to the protections of, that country's domestic laws. For instance, Afghanistan has been the site of a non-international armed conflict since 2002, when the Karzai government came into power. The US may, as a proxy for the Afghan government, detain people there only pursuant to Afghan law which meets international human rights law standards. To do otherwise is to violate its own international human rights treaty obligations.
3. Persons detained in international armed conflict at home or abroad may be detained under the authority of the 3d and 4th Geneva Conventions.
So much time and energy has been spent ruminating over how complicated it all is, how unique the circumstances are and how inadequate the laws are. Many of the resulting recommendations are designed to solve non-existent problems or they merely exacerbate existing ones. Equal time devoted to understanding the content and complementary application of international humanitarian law, human rights law and domestic law would pay great dividends in the service of both national security and liberty interests."
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.
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Obama Administration signals more limited use of presidential signing statements
7:38 AM ET
Daniel Schuman [Director of Communications and Counsel, The Constitution Project]: "On March 11, 2009, President Obama issued his first presidential signing statement - a formal expression of his views regarding legislation that he has just signed into law - identifying five areas in an omnibus appropriations act that he will decline to enforce because of "well-founded constitutional objections." How similar is President Obama’s view of his constitutional role to that of his predecessor?
Presidents have used signing statements [PDF file] throughout American history to thank supporters, provide reasons for signing a bill, or to express satisfaction or displeasure with legislation passed by Congress. In recent years, presidents have used signing statements in an (unsuccessful) attempt to influence how courts interpret legislation by declaring their views on the intent, purpose, and scope of the legislation. However, only infrequently have presidents challenged or denied effect to legislation they consider unconstitutional. Prior to 2001, presidents issued statements containing 575 constitutional objections to legislation; President George W. Bush issued more than 1,000, [PDF file] often with only perfunctory or vague justifications, and frequently based upon a broad assertion of the "unitary executive" theory.
The Constitution Project's Liberty and Security Committee issued a "Statement on Presidential Signing Statements" [PDF file] that explained the separation of powers issue at stake. "By signing a particular bill into law, but then issuing a signing statement that declares that he will not give effect to it, or to a provision of it, the President is effectively vetoing the law without affording Congress the opportunity to override the veto, as the Constitution requires." Thus, the president is asserting the unilateral power to repeal and amend legislation, and is displacing the judiciary as the final expositor of the Constitution.
President Obama has not claimed "unitary executive" powers as did President Bush, and on March 9, President Obama promulgated his own policy on presidential signing statements. President Obama directed all executive branch departments and agencies to "seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute."
He also announced that he would continue to use signing statements, but in a seemingly more limited fashion, addressing "constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities." He went on to say that "[signing statements] serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress."
In narrowing the occasions upon which he would seek to exercise this claimed power, President Obama declared his intention to follow four principles, as summarized below:
1. Inform the Congress of the administration's constitutional concerns about pending legislation.
2. Construe legislation passed by Congress as presumptively constitutional, and only use "well-founded" methods of constitutional interpretation as the basis for finding that legislation is not constitutional.
3. Provide enough specificity to make clear the nature and basis of any constitutional objection asserted.
4. Construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.
While not condemning all signing statements, the Constitution Project called upon Congress in 2006 to "make unmistakably clear the link between a President's inappropriate use of signing statements [PDF file] and the costs of doing so." The American Bar Association, also in 2006, took an even narrower view [PDF file], recommending that "the President...confine any signing statements to his views regarding the meaning, purpose and significance of bills presented by Congress, and if he believes that all or part of a bill is unconstitutional, to veto the bill in accordance with Article I, § 7 of the Constitution of the United States, which directs him to approve or disapprove each bill in its entirety."
The Constitution Project welcomes President Obama's willingness to be more transparent and to limit the occasions when he will use signing statements. However, while not explicitly saying so, he left open the possibility that he may, in some circumstances, continue the practice of using signing statements to indicate that he will not enforce duly-enacted laws because of his constitutional objections, rather than vetoing a bill and providing Congress with the opportunity to amend the legislation or override the veto.
To allow the president to choose which laws to apply undermines our Constitution and the freedoms that depend upon it. In the words [PDF file] of former Representative Mickey Edwards (R-OK), "Presidential signing statements may not sound like such a big deal, but they are declarations of the right of a President to be above the law, and that is a path that, once taken, will prove ultimately fatal to our democracy."
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.
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Negusie asylum case shows danger of broad application of persecutor bar
3:48 PM ET
Angela Wu [Acting Executive Director, International Law Director, The Becket Fund for Religious Liberty]: "The Supreme Court recently overturned Board of Immigration Appeals and Fifth Circuit rulings in Negusie v. Holder and found that victims of persecution who are forced to participate in persecution may be entitled to asylum. Petitioner Daniel Girmai Negusie is an Eritrean-Ethiopian Christian who was forcibly conscripted into Eritrea's war against Ethiopia and forced to serve as a prison guard to tortured inmates. He at times out of conscience attempted to aid some of those he guarded, for which he was punished. The decision can be considered a victory for Negusie, who now has another chance at asylum. However, the Court's decision leaves to immigration authorities the ultimate question of "whether an alien who was compelled to assist in persecution can be eligible for asylum or withholding of removal" under the Immigration and Nationality Act (INA).
The Court's decision hinged on principles of statutory interpretation more than the equity of Negusie's situation. The Court found that the BIA and Fifth Circuit erred in applying Fedorenko, which found that under a different statute, the Displaced Persons Act of 1948 (DPA), "an individual's service as a concentration camp armed guard – whether voluntary or involuntary – made him ineligible" for protection. Because the BIA based its holdings on the (erroneous) belief Fedorenko bound the outcome of Negusie's case, the Court determined the BIA had in fact not interpreted the statute at all, as it should have in the first place. Therefore the BIA's decision deserved no deference under the Chevron doctrine, stating that courts should defer to administrative agencies in matters of statutory interpretation. The Court reversed and remanded for the agency to "interpret the statute, free from error."
The question posed by Negusie – the culpability of those who participate in harming others under coercion – raises, as Justice Scalia puts it in a concurrence emphasizing that the BIA is free to interpret the persecution bar as having no exception "so long as the choice to so is soundly reasoned" and not based on Federenko, "profound questions of moral philosophy and individual responsibility."
In considering the substantive question before it, the BIA now must not only interpret the statute independent of Federenko's DPA-specific ruling, but has within its power the ability to define, if it recognizes a persecutor bar exception, the parameters of that exception. In doing so, it should consider the realities of how authoritarian regimes exercise their persecution.
The Becket Fund argued in its amicus brief [PDF File] that American asylum law should recognize and condemn the evil of forced participation in persecution of fellow prisoners. The brief argued that forcing prisoners to persecute one another is a particular method authoritarian governments use to invade the sphere of conscience. The Becket Fund's brief was joined by a diverse coalition including the American Islamic Congress, Catholic Legal Immigration Network, Inc., International Society for Krishna Consciousness, and United Sikhs.
Historical examples of such targeted torture abound. For example, the Romanian Communist government used Pitesti prison outside Bucharest for the violent reeducation of political and religious prisoners from 1949-1952. Prisoners were compelled to confess their own crimes against the state and to betray others. They were required [source] to:
blaspheme and renounce their deepest emotional ties and spiritual convictions: "I lied when I said 'I believe in God.' "I lied when I said, 'I love my mother and my father.'...Christians were compelled to participate in blasphemous versions of Romanian Orthodox liturgical rites: a parody baptism was performed as their heads were dunked in a bucket of urine and feces.
But in the final phase of several stages of psychological torture,
"prisoners were required to prove their full conversion by torturing other prisoners, including their best friend.... This ingenious step insured that the spirit would be utterly broken, and that distrust and misery would make cooperation in an uprising much less likely."
Coerced participation is itself a form of persecution aimed particularly at psychological devastation, as it carries with it the intuition of the victim's own spiritual failure, self-loathing, and despair, and should not be implicitly protected by a persecutor bar that recognizes no exception for duress. Further, asylum law should be not only a judgment about the blameworthiness of the asylum applicant, but also a moral condemnation of the government the asylum applicant flees. To recognize otherwise would create a particularly perverse incentive: authoritarian governments would see an advantage in setting religious believers to torture one another, since that would automatically disqualify them from gaining asylum in the United States."
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.
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Obama's stem cell policy is welcome change, but ethics are permanent feature of debate
2:04 PM ET
Jesse Reynolds [Policy Analyst, Center for Genetics and Society]: "President Obama's recent removal of his predecessor's stem cell policy is a welcome development. The Bush administration's restriction on the federal funding of human embryonic stem cell research was outdated and increasingly unpopular. While much of the media coverage of President Obama's announcement has focused on the research's potential and the political winners and losers, here are a few points that were overlooked:
For years, embryonic stem cell research in the US has been conducted in a federal regulatory vacuum, and the debate has been characterized by exaggerated rhetoric about imminent cures. Obama shifted the ground on both fronts. He ordered the National Institutes of Health(NIH) to draw up guidelines, which hopefully will be enforceable and apply to both publicly and privately funded research. The President also clearly called for a prohibition on reproductive cloning, which remains legal in the US and shares materials and methods with embryonic stem cell research. Furthermore, his language was optimistic but cautious; he noted that cures may not come in our lifetimes. This is a big change from advocates' over-the-top promises about Christopher Reeve's imminent mobility, personal biological repair kits on standby, and cures for all known maladies.
Although the details of the new stem cell policy remain unclear, the change is not actually that dramatic. Obama's executive order did not offer specifics; it passed that task to the NIH. Contrary to frequent misperceptions, it is not the case that the Bush administration banned embryonic stem cell research. Bush permitted federal funding for this work, although he limited it to research with lines that already existed at the time of his policy's debut, August of 2001. As more stem cell lines were isolated, the older ones seemed inferior and the policy became even less tenable. President Obama has previously voiced his support for federal funding of work with all lines derived from embryos that were created but not used in fertility treatments, regardless of their date of creation. The actual derivation of lines - the step in which embryos are destroyed - has been and remains off-limits due to a long-standing annual appropriations rider, one that's been adopted by Congresses and Presidents of both parties. Federal support of lines derived from embryos specifically created for research purposes remains prohibited as well.
Notwithstanding some claims, the new stem cell policy does not replace an "anti-science" one by "removing politics from science" and "restoring scientific integrity." All along, the human embryo research debates have hinged on ethics. There was a consistent, albeit tenuous, moral logic to Bush's policy. Most Americans, including myself, disagreed with it. Government financial support for and ethical constraints on science should be socially - and thus politically - negotiated. Future debates about ethical and social oversight of science should take that lesson from the stem cell controversy.
For more information, see our Stem Cell Research Frequently Asked Questions and Fact Sheet [PDF]."
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.
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Supreme Court gets Hayes wrong, only felonies should cause loss of civil rights
2:56 PM ET
Rep. Jennifer Coffey [Director, National Coordinator, Second Amendment Sisters, Inc.] and Evan F. Nappen [Attorney at Law]: "It's said that God created man and woman, but it took Sam Colt to make them equal. Domestic violence is deplorable. Abusing any person, whether man or woman, is wrong. The problem is when the issue of domestic violence is used to promote an anti-gun agenda to create a new lower threshold for disenfranchisement of individual gun rights. Traditionally, misdemeanor convictions have never been disqualifiers of civil rights. Only felony convictions caused a loss of civil rights, such as the right to vote, the right to hold public office, or the right to serve on a jury.
If domestic violence offenses are serious enough to take away one's Constitutional Right to Keep and Bear Arms, then these offenses are serious enough to be felonies. The Hayes Court rationalizes the law by claiming Congress closed a "loophole" by its enactment. In reality, the bar for loss of civil rights was simply lowered. The Hayes Court stated as followed:
"Because many states classify domestic violence crimes as misdemeanors rather than felonies, many domestic violence offenders could not be prohibited from handgun possession under the original version of the Gun Control Act. In an effort to close this loophole, Congress passed the Lautenberg Amendment, prohibiting offenders who had been convicted of Misdemeanor Crimes of Domestic Violence from possessing handguns."
This hardly is closing a loophole, but rather creating a noose to hang unsuspecting folks who plead guilty to misdemeanor offenses never knowing they would permanently forfeit their gun rights. The answer is to require the States to make domestic violence offenses felony level if the crimes are that serious. If the offenses are not that serious, then they are rightly misdemeanors and should not be disqualifiers.
Both men and women can fall into the domestic violence loss of gun rights trap. The Second Amendment Sisters do not want to see gun rights eroded in the name of political correctness. If the offense is serious, make it a felony and prosecute to the fullest. If it is not that serious, then do not use it as an excuse for back door gun control."
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Attorney General's comments are an opportunity to discuss minority representation in the legal profession
2:22 PM ET
Paula Lucas [Executive Director, Just the Beginning Foundation]: "Pull out your cup, fill it full of whatever morning sip of activation you need and let's talk.
The recent comments made by Attorney General Holder were rough - well intentioned and certainly based more upon fact than figment of imagination, but it's kind of like using a sheet of sandpaper to file a cracked nail - it would do the trick, but will it have the same outcome? Not likely.
As Executive Director for Just The Beginning Foundation, a pipeline organization offering programs directly aimed at inspiring young students, supporting and assisting older students all with an eye towards increasing diversity in the legal profession and judiciary, I deal with issues of race every day.
FACT: Minorities are underrepresented in the legal profession. According to the 2000 census, less than 11% of all lawyers are minorities, while minorities account for over 30% of the country's population. According to the US Census Department, the minority population will be close to 50% by 2050.
FACT: Since the birth of the federal judiciary in 1789, US presidents have appointed more than 3,100 judges to the federal courts. But it was only in the last seventy-four years that 269 women and 257 persons of color; 151 African-Americans, 88 Latinos, 16 Asian Pacific Americans and 2 Native Americans were appointed to lifetime positions on the federal courts. Currently, there are approximately 240 women, 110 African-Americans, 69 Latinos, 10 Asian Pacific Americans and 1 Native American out of the 1286 judges currently serving on the federal bench.
FACT: A number of States (Illinois being one) have enacted legislation specifically to address the disproportionate impact of drug laws on minority communities.
Society as a whole benefits when all groups have adequate representation in the system that acts as the gatekeeper to justice in our country. If one can find merit in that premise then most assuredly there is little offense in the notion that the legal profession needs to catch up.
And as you get down to that final sip of your drink, just for a moment consider the multitude of other professions that are out there and imagine just how many have similar issues.
The idea, the concept, the notion of race relations is a jagged nail. It can scratch and wound many, if not all of us, in some way or another. But this is no reason to continue to place band aids on these wounds and simply wait for a healing. It's time to begin the process of pulling off the band aid, exposing and acknowledging the wound and encouraging a healing. There is much work to be done. As individuals and organizations, it is our duty to arm ourselves with our respective files and continue this work. We do this by listening, sharing our own experiences, volunteering, mentoring and even just by reaching out to people and places we have never reached out to before. Through this we continue the process of smoothing out the jagged nail of race and race relations in this wonderful country of ours."
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A serendipity of justice in Iraq
5:35 PM ET
Chibli Mallat [Professor of Law and Politics of the Middle East, S.J. Quinney College of Law]: "Yesterday we encountered a strange moment of serendipity. Dr. Lateef Rashid, invited those of us working on the Global Justice Project: Iraq to dinner with his colleague, the Minister of Justice, Dara Noureddin. Dr. Rashid, the Minister for Water, has one of the best reputations in Iraq for running his complex Ministry, not least because as a proud Kurd, he succeeded in getting the legendary Arab Marshes in the South of Iraq back to 80 percent of where they were before water was diverted to starve their inhabitants.
The dinner was at Dr. Rashid's house, which was the former residence of Abd Hammoud, the personal secretary of Saddam Hussein. As it happens, yesterday Hammoud was sentenced by the Iraq High Criminal Tribunal (which sentenced Saddam Hussein to death in 2006) to life imprisonment for the execution of 42 Baghdad merchants in the summer of 1992. Tariq Aziz, the former regime's international visage, received a 15 year sentence. The two half brothers of Saddam were sentenced to death, while the former Governor of the central bank was found not guilty.
I had previously met Judge Dara Noureddin in Amsterdam in 2004 when preparations were afoot for the trial of the former Baathist leaders. I am sorry that the high hopes we expressed at the meeting were not fully realized, given the setbacks that followed, but at least one lesson was learned. For difficult cases like Lebanon, Sudan or Iraq, I believe it is better to have the trial carried out abroad, to prevent witnesses, judges and defense lawyers from being killed, as happened in Iraq during the two years of Saddam's trial. It is also better to shape the court into a mixed tribunal, to protect the local judges. From this Iraqi lesson, we derived the shape of the Special Tribunal for Lebanon which came into being on March 1st. Considering the continued risk on Lebanese judges who will sit on it, I wonder whether it should not have been totally composed of international judges.
The Iraqi Minister of Justice's reputation was well known to me for having stood up to Saddam Hussein as a judge, and I asked him about the details yesterday. Here is the synopsis: Under the Baathist constitution, the Revolutionary Command Council (RCC) issued orders which had an automatic legal status (some of which are even said to have been secret). An RCC order had been made in 1981 with respect to the dedication by the state of land to be distributed to military officers and other political grantees. In Baghdad, a special section of the Municipality had responsibility over this dedication and distribution. Some ten years later, a case came up before Judge Dara which involved land held jointly by a number of owners requesting its division amongst them by Judge Dare's property court. Not receiving an answer from the Municipality of Baghdad about this particular piece of real estate, Judge Dara ruled in favour of the petition of the joint owners. The decision was challenged by the municipality under the RCC order of 1981, but Dara rejected the challenge on the basis that the RCC order contradicted the new 1990 Iraqi Constitution which Saddam had just brought into being and which included the right to own private property. The decision was adopted as precedent, but it escaped the attention of Saddam Hussein until a decade later, when a similar case came up and he realized that his order was not being applied. He asked who had allowed his order to be set aside, and was informed of the Dara jurisprudence. The judge was arrested, detained for three months, then sentenced for two years. He stayed another eight months in prison.
Dinner with a judge imprisoned by Saddam for standing up for basic rights under the Constitution, in the house of Abd Hammoud, personal secretary of Saddam Hussein and the éminence grise of the system, on the day of his sentencing. This was an unusual moment for justice. For Hammoud, yesterday may not be the end of his sentencing. As someone opposed to the death sentence, I drank to his health. My Iraqi hosts raised their glasses also, possibly not for the same reasons."
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.
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Wednesday, March 11, 2009
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Supreme Court's Ysursa decision correctly finds unions can't enlist states to aid organizing activity
10:29 PM ET
William Perry Pendley [President and Chief Operating Officer, Mountain States Legal Foundation]: "Mountain States Legal Foundation welcomes the ruling of the Supreme Court of the United States in Ysursa v. Pocatello Education Association issued February 24, 2009. MSLF had filed a friend of the court brief in support of the Idaho Secretary of State, Mr. Ysursa, at the Supreme Court arguing that the ruling by the US Court of Appeals for the Ninth Circuit was in error. The Supreme Court agreed by holding, "Idaho is under no obligation to aid the unions in their political activities. And the State's decision not to do so is not an abridgment of the unions' speech; they are free to engage in such speech as they see fit. They are simply barred from enlisting the State in that endeavor."
The Ninth Circuit had concluded that the Idaho statute "does not prohibit Plaintiffs from participating in political activities, but it...mak[es] the collection of funds for that purpose more difficult" and thereby embraced the holding of the district court that the Idaho statute "eliminates the easiest and least expensive way for unions to collect funds for political speech." This the Ninth Circuit held Idaho could not do. The Ninth Circuit fundamentally erred, however, by failing to recognize that "the First Amendment does not guarantee a right to the least expensive means of expression."
MSLF argued that, under the Ninth Circuit's ruling, unions could claim that engaging in political speech would be easier and less expensive if the government had the affirmative duty, not only to deduct monies from the payroll, but also to assist in organizing for, catering to, and cleaning up after union meetings during which its members exercised their First Amendment rights. The notion that the First Amendment requires the government to make speech as easy as possible is preposterous when there are other reasonable, readily available means for engaging in expressive conduct. MSLF is pleased the Supreme Court rejected that notion!"
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Judge finds proper balance between due process and national security in Al-Haramain wiretapping case
11:29 PM ET
Victor Comras [Special Counsel, Eren Law Firm]: "Classified information and court rooms usually just don't mesh. And, this factor is at the very heart of the continuing dilemma we face in using our judicial system to deal with terrorism and terrorists. Terrorism cases pose very special investigative and court room challenges. The objective in many of these cases is to identify and to stop the terrorists, and to prosecute them, even before they act. And, when it comes to most financing-of-terrorism cases, the challenge is to be able to demonstrate a specific intent or mens rea even when the culprits employ well established charities and charitable works to mask their real intentions. This often necessitates the use of sensitive intelligence gathering methods in addition to normal investigative procedures. But, the real difficulty arises when it comes to turning this classified information into evidence that can be used for the purposes of prosecution in open court. And, when this is impossible, we have to seek to balance the protection of our sensitive intelligence sources and methods so essential to our national security with our deep felt commitment to due process, judicial fairness and justice, as well as to maintain accountability and to assure against abuse.
It appears to me that U.S. District Court Chief Judge Vaughn Walker has done a truly remarkable job weighing and balancing these factors. His ruling in the Al-Haramain Oregon NSA wiretapping case, which was just upheld by a Ninth Circuit three-judge panel, sets forth a set of procedures that may well become the template for the future handling of classified information in such cases. I leave to others to comment on the many legal intricacies involved in the ruling. For my part, I am content that the court found a way to allow limited, but essential access to classified information critically relevant to the merits of that case.
The procedures set forth will allow the court, and, conditionally, one or a few of Al-Haramain's attorneys to review classified information that is determined by the judge to be critical to due process and fairness in the case. The classified information will be maintained in a secure facility, reviewed first by the judge who will also have the opportunity to consider ex parte the Justice Department's security concerns regarding the information to be viewed by specially designated opposing counsel(s). Before obtaining such access, the designated opposing counsel(s) will first be required to obtain the requisite security clearances. For its part, the Justice Department has been ordered to facilitate the granting of such clearances in a timely fashion without lowering security clearance standards or rules against any further classified information dissemination.
While the Judge's order makes it all sound quite straight forward, and we should certainly hope that turns out to be the case, there is still a real possibility that the process will be hung-up by the usual delays that are regularly encountered in obtaining sensitive intelligence security clearances. Perhaps some thought should be given to the establishment of special new procedures to establish a special Federal Bar of Attorneys pre-cleared and enabled to be available as co-counsel in cases involving (requiring) some access to classified information. That would put such special defense counsel on equal footing with their prosecuting attorney brethren. After all, both are already equally considered to be duly appointed officers of the court. The burden would be on attorneys applying to membership to such a special Federal Bar not only to demonstrate their suitability for such clearances, but to front some of the costs that the clearance process regularly entails. These costs could then be passed on in the course of the usual fees charged to clients."
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.
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Europe leads on ending death penalty with Protocol 13 to European Convention on Human Rights
5:04 PM ET
Elizabeth Zitrin [Coordinator, International Outreach and Communications Project, Death Penalty.org]: "To the United States, Europe often represents our past. Our social and cultural institutions are a large, diverse melting pot, but were built on a European base. Our legal system and our democratic principles came across the Atlantic. Now, Europe is guiding us to our humanitarian future.
Italy's abolitionist movement has pride of place in the international journey away from the barbarism of state killing. On November 30, 1786, Pietro Leopoldo, the Grand Duke of Tuscany, signed the first recorded abolition by a State, the Leopoldina. More than two centuries ago, by also abolishing torture, he put into practice what the United States is still learning, that the death penalty is torture - it is the greatest and ultimate violation of human rights and must - and will - be abolished.
As we emerge from a period of American political life when torture was sanctioned at the highest levels of government, when federal prosecutors were ordered to seek the death penalty against their own professional judgment, when weapons were treated as the only way to communicate with other nations, we find guidance in human rights standards and goals established in Europe following the devastation of World War II. For 60 years, the Council of Europe has worked to maintain respect for democracy, human rights and the rule of law, as the foundations of a tolerant and civilized society, and the United States has been eager to regain our pride in our high moral standards.
The death penalty in the United States is losing support for many reasons: it is a terrible waste of a huge amount of money, draining ever scarcer resources from plans and programs that can truly enhance our safety and better our lives - solving unsolved cases, improving forensic capabilities, providing community policing and hiring teachers, to name a few; it is not a deterrent and does not keep us safer; it is racially biased; it is biased against the poor; it convicts, imprisons and executes innocent people. And it is cruel, inhuman and degrading, as our European friends have known for generations.
Italy's adoption of Protocol 13 [PDF file], abolishing the last vestiges of its death penalty, is another example for us to follow into the future of the small world we all share, and which our country is rejoining as a leader once again. In this new era, the US will follow a new strategy, as President Obama said, that balances with our military might all the other elements of our power, including "the power of our moral example." "What is required of us now is a new era of responsibility," he said at his inaugural. "We reject as false the choice between our safety and our ideals. Those ideals still light the world...."
The strength of moral leadership is being felt in the United States and throughout the world on the issue of the death penalty. Death Penalty Focus serves on the Steering Committee of the World Coalition Against the Death Penalty, where abolitionist and retentionist nations work together toward universal abolition of the death penalty. Life is winning. World Day Against the Death Penalty, October 10, is also European Day Against the Death Penalty. This year, the international focus is on Teaching Abolition. We will be Teaching Abolition in high schools and law schools in the US and around the world. Next year, the focus of the World Coalition will be on the US. We are all in this together.
We are all in it together on November 30 each year, the anniversary of that first recorded abolition in Tuscany. On that day of World Cities Against the Death Penalty in 2008, close to a Thousand cities around the world illuminated their monuments, symbolizing enlightenment, celebrating our theme, "No Justice Without Life.""
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.
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Italy's complete abolition of death penalty is evidence of growing international trend
4:42 PM ET
Christopher Hill [State Strategies Coordinator for the ACLU Capital Punishment Project]: "Italy's decision on March 3 to completely abolish capital punishment is yet more proof that the world is moving away from this ineffective and unjust system. There has not been an execution by a member of the Council of Europe in over 10 years, and 41 out of the 47 members of the Council of Europe have ratified Protocol No. 13 [PDF file] to the Convention for the Protection of Human Rights and Fundamental Freedoms, which outlaws the use of the death penalty. Like many nations of the world, these 41 European nations recognize that the death penalty is a violation of human rights.
The United States is increasingly coming to that same realization. Although 36 states retain death penalty statutes, in many of the states these statutes are rarely used. According to the Death Penalty Information Center, 80 percent of the executions in the United States are in southern states. New Hampshire has not executed anyone since 1939. New Jersey reinstated the death penalty in 1982 and abolished it in 2007 without ever sending anyone to the death chamber. Pennsylvania and Connecticut have executed only inmates who volunteered for execution by waiving their appeals. There is genuine hope for abolition in several states such as Montana and New Mexico. And according to the Bureau of Justice Statistics, there are fewer death sentences issued in the United States today than at any other time since capital punishment was reinstated in this country in 1976.
Although the United States has a long way to go to catch up with the rest of western civilized democracies, we are on the right course. When the Supreme Court of Nebraska ruled that its use of the electric chair was cruel and unusual punishment, Judge William Connolly wrote, "[w]e recognize the temptation to make the prisoner suffer, just as the prisoner made an innocent victim suffer. But it is the hallmark of a civilized society that we punish cruelty without practicing it." As more nations and more states continue to recognize that the death penalty is an enormous waste of resources and an unjust, unfair and inhumane system, it has become apparent that we are well on our way to ridding the world of this cruelty."
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.
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KindHearts Islamic charity asset freezing case pits politics against national security
4:01 PM ET
Steven Emerson [Founder, The Investigative Project on Terrorism]: "The University of Texas School of Law National Security Clinic, joined by several other advocacy organizations, has filed an amicus curiae brief on behalf of KindHearts for Charitable Humanitarian Development, Inc. (KindHearts) in the US District Court for the Northern District of Ohio. KindHearts, an Islamic charity, is the plaintiff in the pending civil litigation in the case entitled KindHearts for Charitable Development, Inc. v. Paulson et al. The suit challenges the authority of the US Treasury Department, primarily via the Office of Foreign Asset Control (OFAC) to freeze KindHearts' assets (and those of similar supposed charities) based upon an administrative process without judicial review or authority. OFAC froze KindHearts' assets in 2006 as the government pursued what it described as further investigation into allegations showing KindHearts provided support to the terrorist organization Hamas.
The case is pending litigation and essentially the amicus brief argues that Non-Profit Organizations (NPOs) like KindHearts are really allies of the US Government in its counter-terrorism efforts and by OFAC's actions NPOs are discouraged and undermined in their ability to provide humanitarian aid.
The final resolution of this matter will likely occur in the Federal court system. However, a summary of why OFAC is able to take such action against suspected or known supporters of terrorism may be instructive. OFAC's powers are rooted in the International Emergency Economic Powers Act (IEEPA) [PDF file], found at 50 US Code, Sections 1701-1707, which was codified in 1977. It authorizes the President to declare an "unusual and extraordinary threat...to the national security, foreign policy, or economy of the United States." OFAC is authorized to take civil enforcement action, primarily in the form of proscribing transactions and freezing and seizing assets, of persons, organizations and countries that are believed to be operating against the security interests of the United States. Under IEEPA, the President can authorize the freeze of assets and block transactions by any individual, organization or country that is determined to be engaged in activities linked to the declared threat. If the US actually is attacked, the President can also confiscate the property of any country, organization or individual who assisted in carrying out the attack. OFAC is the arm that enforces such presidential orders. The threat declaration must be renewed by the President annually for it to remain in effect and the threat declaration can be terminated by a resolution of Congress. Reports concerning the threat declaration are required to be made to Congress. Such Presidential threat declarations under IEEPA related to international terrorism date to the Clinton Administration.
While IEEPA does not confer any specific judicial review process, subsection 1702(c) of the law allows for classified information involved in making a Presidential threat determination to be presented ex parte and in camera to a reviewing court. Such classified information submission must follow provisions found in the Classified Information Procedures Act (CIPA). This subsection is important because it shows Congress anticipated judicial review of decisions and actions taken under IEEPA. In fact, several cases from the early 1980s did just that. Those cases included two Federal Circuit Court cases (Chas. T. Main Int'l v. Khuzestan Water & Power Auth. and American Int'l Group v. Islamic Republic of Iran) and one before the Supreme Court (Dames & Moore v. Regan). Interestingly, all those cases recognized that Presidential authority under IEEPA is "sweeping and broad." Statutorily and historically, IEEPA has anticipated and endured judicial review and such judicial review has upheld the President's authority in these matters.
In further consideration of the administrative enforcement actions taken by OFAC under IEEPA against supposed Islamic charities such as KindHearts, it might also be instructive to look at the recently completed Holy Land Foundation (HLF) trial in Dallas. HLF was once the largest Islamic charity operating in the United States and was linked to numerous other Islamic "charitable" groups overseas. Its assets were frozen by OFAC in December 2001 after being designated a "Specially Designated Global Terrorist" (SDGT). The case was investigated simultaneously by the FBI, IRS and other agencies as a criminal matter. The Dallas trial resulted in convictions against all defendants, including the HLF itself, on 108 charges including material support for a terrorist organization (Hamas).
The investigation and prosecution of HLF lasted more than a decade and received significant public scrutiny. The OFAC designation and seizure action against this Islamic charity ultimately was validated by the criminal trial. Presumably, OFAC would not take its enforcement actions without anticipating potential judicial review. Additionally, as demonstrated by the HLF case, OFAC has a positive record in properly identifying and placing sanctions against supposed Muslim "charities" linked to supporting Hamas.
A potentially noteworthy item is that one of the organizations joining the ACLU in its amicus brief is the Muslim Public Affairs Council (MPAC). MPAC was founded in 1986 as the Political Action Committee of the Islamic Center of Southern California. In 1988 it changed its name to the Muslims Public Affairs Council and received 501c3 non-profit status. Since its inception, MPAC has often appeared to attempt to distract the public from issues pertaining to terrorism and Islamism, mainly by obfuscating the facts concerning terrorist attacks and government actions against terrorists and their financiers.
Aggressive representation on behalf of litigants in a civil suit to achieve justice is laudable. Aggressive litigation to achieve the making of a political statement, particularly when that action may chip away at our country's security, is lamentable."
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.
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ICC arrest warrant for Sudan's Al Bashir has both humanitarian and strategic consequences
11:31 AM ET
J. Peter Pham [Director, Nelson Institute for International and Public Affairs at James Madison University]: "The decision of Pre-Trial Chamber I of the International Criminal Court (ICC) this week to issue a warrant of arrest [PDF file] for Sudan's President Omar Hassan Ahmad Al Bashir for war crimes and crimes against humanity, including intentionally directing attacks on civilian populations in Darfur and pillaging towns and villages in the region, as well as acts of murder, extermination, forcible transfer, torture, and rape, has divided the international community as well as many individuals and groups which ordinarily find common ground on issues of global justice.
On the one side are those who applauded the ICC's first-ever indictment of a sitting head of state as a significant advance in realizing the vision of the tribunal's architects to put an end to impunity for the perpetrators of the most serious crimes which "must not go unpunished" as well as securing a measure of justice for the Fur, Masalit and Zaghawa ethnic groups and other victims. On the other are those who contend that the Court's action will not only set back efforts to resolve Sudan's multiple conflicts, but will endanger the United Nations peacekeeping forces presently in the country as well as the humanitarian organizations relieving the suffering of the very peoples on whose behalf the ICC acted.
While it is true that the Sudanese regime reacted to the ICC decision by immediately decreeing the expulsion of more than a dozen high-profile aid groups, including CARE, Médecins sans Frontières, Oxfam, and Save the Children, whether the ban is actually enforced remains to be seen. And, as I have argued in an article for a defense publication earlier this week, given the consistent backing that Al Bashir has received from the African Union - the regional organization is currently sending a high-level delegation to the Security Council to join the Arab League in pleading for a suspension of the judicial proceedings under Article 16 of the Rome Statute of the ICC - it is highly unlikely that Khartoum would risk alienating the no fewer than thirty African countries participating in the two UN missions in Sudan by attacking their blue-helmeted military and police personnel.
The question, then, is what next? Of course, it is inconceivable that Al Bashir, who has held tightly to the reins of power since he seized them in a 1989 coup d'état against Sudan's democratically-elected government, will simply turn himself in at The Hague anytime soon. However, cumulatively ICC prosecutor Luis Moreno-Ocampo's public application [PDF file]for a warrant last year and the Pre-Trial Chamber's decision this week to accede to his motion on all counts except the three concerning the crime of genocide where, Judge Anita Ušacka dissenting, it found the evidence of the Sudanese ruler's specific intent (dolus specialis) insufficient, represents a major turning point that shifts the dynamics on the ground in Sudan and, ultimately, opens the way for the eventual execution of the arrest order.
First, unless the legal proceedings in Prosecutor v. Al Bashir are suspended - an action that would take a resolution of the Security Council that seems highly unlikely given that all five permanent members would have to agree to it and, given the commitments it made with respect to the ICC in general and the Darfur prosecutions in particular during the recent campaign [PDF file], it would be politically difficult for the Obama administration to support such a measure - the Sudanese ruler will inevitably become progressively isolated. While the AU as an organization may not like the indictment, some thirty of its fifty-three members adhere to the ICC, constituting the largest regional bloc within the Assembly of States Parties, and bound under Article 89 of the Rome Statute to arrest and transfer those sought by the tribunal. Even though Sudan is not a signatory to the Statute, the Article 98 exception covering cases where "a request for surrender or assistance...would require the requested State to act inconsistently with its obligations under international law with respect to State or diplomatic immunity" would not be applicable if Al Bashir continues to travel abroad since the Darfur investigation was referred to the ICC by the Security Council acting under the authority of Chapter VII of the UN Charter [PDF file]. Both Article 103 of the Charter and the constant jurisprudence of various international tribunals affirm that the obligation to cooperate when mandated by decisions of the Security Council such as the dispositive part of resolution 1593 takes precedent over any immunities under customary law which might otherwise exist. Thus, even if they are loath to actually detain a fellow leader, Africa's heads of state will not appreciate being put in an awkward position by their counterpart from Sudan. So, for want of willing hosts, Al Bashir can expect to be staying home more often than not.
Second, while Al Bashir may momentarily be able to rally support among his core domestic constituencies by appealing to nationalism, his authority will weaken if he is increasingly marginalized internationally. Others within Sudan's ruling National Congress Party (NCP) and the military establishment may come to regard him as too much of a liability and, either by themselves or in tandem with influential rivals of Bashir within Khartoum's ruling Arab Islamist elite, like his former mentor Hassan Al Turabi, will move to push him aside in the same way the clique around Charles Taylor decided to turn on the Liberian leader and survive rather than to go down with him after his indictment by the Special Court for Sierra Leone was unsealed by prosecutor David M. Crane in 2003. Certainly there will be entrenched interests within the Sudanese political and economic power structures - including the People's Republic of China which has invested billions of dollars in the country and depends on it for nearly one-tenth of its petroleum imports - which will conclude that it is well-nigh impossible to maintain the investment climate that has hitherto delivered annual GDP growth rates near 10 percent while saddled with an indicted war criminal as head of state.
Third, the arrest warrant accelerates the ongoing disintegration of the Sudanese state. Even before the prosecutor's move against Al Bashir last year, the 2005 Comprehensive Peace Agreement (CPA) which ended the decades of civil war between the Northern-dominated government in Khartoum and the peoples of South Sudan was faltering with almost every benchmark for implementation missed. There is now almost no reasonable expectation that the general elections, including that for the presidency, which are supposed to be held by July will actually take place. While some worry that a delay in the poll may complicate matters for the all-important self-determination referendum for South Sudan scheduled for 2011, a more realistic analysis would posit that the latter vote was never going to take place. No government in Khartoum can afford to allow South Sudan to actually exercise its option under the CPA and go its own way, taking with it some 90 percent of Sudan's proven oil reserves. Hence, when the election in July fails to take place, most South Sudanese are likely to draw their own conclusions and the regional government may well proceed to a unilateral declaration of independence without waiting two more years. Whether the secession takes place peacefully or a new north-south conflict erupts, the practical result will be the same: the rulers in Khartoum will be deprived of the very revenues which they have up to now used both to purchase the allegiance of supporters and to fuel their violent campaigns in the peripheral regions like Darfur, thus forcing whatever regime elements eventually succeed Al Bashir to seek a genuine settlement of Sudan's conflicts.
Fourth, if only to escape the opprobrium which Al Bashir has brought on the Sudanese state, almost any future government in Khartoum will likely prove more cooperative with the ICC, especially with respect to the arrest warrant [PDF file] issued by the court in 2007 for the current minister of state for humanitarian affairs, Ahmad Muhammad Harun, and janjaweed leader Ali Muhammad Al Abd-Al-Rahman, a.k.a. Ali Kushayb. In their decision regarding Al Bashir, the judges noted Sudan's systematic noncompliance since then and warned that the competent chamber "may make a finding to that effect" and "refer the matter...to the Security Council." It goes without saying that such an Article 87 referral back to the Security Council would be the last thing any government trying to overcome the bitter legacy of the current regime would want and hence Khartoum might find it expedient to surrender Harun and Kushayb. The trial of these two mid-level figures would, in turn, not only contribute to the ICC's own progress as a working tribunal, but also to the further laying of the evidentiary groundwork for the eventual prosecution of those with even greater responsibility for the terrible crimes which have taken place in Darfur these past six years.
In short, while the judges who authorized the arrest warrant for Al Bashir may not have envisioned it in this perspective, theirs was not only a legal action with normative force, but also a strategic move with profound geopolitical implications. And because of the particular realities on the ground in Sudan, it might well prove that international human rights law and realpolitik converge in this case to give both Al Bashir and his victims their day in court."
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.
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China's new food safety law must provide courts with real enforcement authority
2:49 PM ET
Bill Marler [Managing Partner, Marler Clark LLP, PS]: "China's recently enacted "Food Safety Law" is, at least on paper, a significant leap forward in terms of proactive food safety measures designed to prevent crises before they happen. Provisions contained in the Law, such as creating a system to recall problem products, nationwide standards for allowable additives, and creating a schedule of fines for violators of the new provisions are certainly all steps in the right direction. One is left to wonder, however, how effectively the measures will be enforced.
Recent food-related health scares in China have erupted despite preexisting legal measures aimed at deterring manufacturers from adulterating their food products. The Product Quality Control Law, enacted in 1993, in theory established a product liability legal scheme on par with laws in the United States. The Quality Control Law, however, was of little use to the families of the nearly 300,000 infants sickened in the 2008 melamine-contaminated infant formula crisis due to the fact that Chinese courts simply refused to hear any of the filed cases. Similarly, the 2007 criminal trial and subsequent execution of Zheng Xiaoyu, the former director of the Chinese State Food and Drug Administration, appears to have done little to deter government corruption in food crises.
Despite these past failures, the new Food Safety Law provides a necessary bookend in the Chinese food safety scheme. Just as the Product Quality Control Law was designed to react to product safety disasters, by allowing victims of such disasters some recourse against negligent manufacturers, the Food Safety Law aims to prevent food safety disasters before they happen. Still, for the sake of the Chinese public, let's hope that the elephant in the room - Chinese courts' lack of enforcement authority - is finally addressed and resolved with the enactment of the Food Safety Law. The stakes are simply too high at this point for the government to generate false enforcement measures, aimed at restoring consumer confidence, and then go back to conducting business as usual."
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