'Nuff said

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

I hope that the United States has turned the page on those times and is returning to the values that sustained our country for so many years. But we cannot expect to regain our position of leadership in the world unless we hold ourselves to the same standards that we expect of others. That means punishing the most senior government officials responsible for these crimes. We have demanded this from other countries that have returned from walking on the dark side; we should expect no less from ourselves.

-- Mark J. McKeon, onetime prosecutor at the International Criminal Tribunal for the former Yugoslavia, in an op-ed entitled Why We Must Prosecute: Torture Is a Breach Of International Law. It was published yesterday, on the 5th anniversary of the disclosure of photos depicting detainee abuse at Iraq's Abu Ghraib prison.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

She says her mother once hit her so hard with a table tennis bat that it broke, but considers that normal for West Virginia.

-- account of an interview with Lynndie England (right), a onetime U.S. Army private and 1 of the very few persons held criminally responsible for the detainee abuse, about which I've written here, at Iraq's Abu Ghraib prison. Journalist Emma Brockes reports for Britain's Guardian that England, now 26, was released from military prison about 2 years ago, after having served 1/2 of her 3-year sentence. She's back home, living in a trailer, looking unsuccessfully for a job, and bringing up the son with whom she was pregnant during the military proceedings.

Constitutional comparativism in South Africa

(In this post, IntLawGrrls guest blogger Ursula Bentele describes her new paper, entitled "Mining for Gold: The Constitutional Court of South Africa's Experience with Comparative Constitutional Law")

Spurred by the attacks on references to foreign law in some recent United States Supreme Court opinions, particularly in the area of the death penalty that is my main scholarly interest, I decided to focus my next project on this topic. Having spent a sabbatical in South Africa in 1992, I had followed with admiration the creation and operation of that country’s new constitutional court, and I knew that the new Constitution of South Africa specifically authorized the court to look to foreign law. I was curious:

► How was the court using this provision?

► Did engagement with foreign law present the kinds of problems that critics here identified about the practice?

I was fortunate to have made connections over the years with several former and current justices of the Constitutional Court of South Africa (photo credit), who responded positively to my requests to discuss this topic. My article summarizes the face-to-face, audiotaped interviews I conducted with eight justices. In those interviews they discussed both the value gained from the practice of looking to foreign law and their ways of addressing the concerns expressed by American critics. In addition, the article provides detailed analysis of several cases containing significant references to foreign law, along with commentary from the justices on how particular opinions were enriched by examination of other courts’ treatment of the same issues.

Whether identifying universal norms, engaging in a dialogue to help clarify an issue, or gaining insight into comparable constitutional provisions, these justices see clear benefits from exploring the opinions of constitutional courts in other parts of the world. Yet they approach such outside sources with great care, fully aware of the potential hazards of transplanting foreign legal concepts and conscientiously avoiding selective citation only to favorable outside authorities. These findings bear on the current debate and, in a world where America’s stature as a leader in protecting human rights has been compromised by Abu Ghraib and Guantánamo, and where many other high courts engage in constitutional comparativism, suggest that the United States Supreme Court would do well by more active participation in the conversation.

'Nuff said ... "isn't it?"

(Occasional item taking context-optional note of thought-provoking quotes.)

BOULTON: [T]here are those who would say, look, let's take Guantanamo Bay and Abu Ghraib and rendition and all those things, and to them that is the, you know, the complete opposite of freedom.
THE PRESIDENT: Of course if you want to slander America, you can look at it one way. But you go down -- what you need to do -- I think I suggested you do this at a press conference -- if you go down to Guantanamo and take a look at how these prisoners are treated -- and they're working it through our court systems. We are a land of law.
BOULTON: But the Supreme Court have just said that -- you know, ruled against what you've been doing down there.
THE PRESIDENT: But the district court didn't. And the appellate court didn't.
BOULTON: The Supreme Court is supreme, isn't it?

-- Sky News Political Editor Adam Boulton speaking in London with U.S. President George W. Bush. (photo credit) Full interview here.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

How has the world's leading democracy, a model for the ideal that power and decency reinforce one another, become the place where torture is debated rather than outlawed? How is it that a religiously devout president has justified torture by American hands?

-- Karen J. Greenberg (above), Executive Director of the Center on Law and Security at the New York University School of Law and co-editor of The Torture Papers: The Road to Abu Ghraib (2005), in "Scars and stripes," a Financial Times review of Torture Team: Deception, Cruelty and the Compromise of Law (2008) by Philippe Sands QC, law professor at University College London.

Look On! "Iraq for Sale"

(Look On! takes occasional note of noteworthy films.) Want to put in context recent headlines respecting 1 of the several private military contracting companies at work in Iraq; that is, "State Dept. renews Blackwater contract" and "Iraq Contractor in Shooting Case Makes Comeback" and "Blackwater’s Impunity"?
Then try to view the documentary "Iraq for Sale."
Though released 2 years ago, the film tells a story that remains fresh to this day. The 75-minute film is circulating widely now, not only via DVD sales and organized screenings, but also via some cable companies' "on demand" movie feature.
Thought I knew lots about the workings of these companies. The role that private contracting played in abuse at Abu Ghraib, for instance, a shameful episode that indeed is stressed in this film. But the film makes sadly clear that Abu Ghraib is only 1 of many stories to be told. Also aired are allegations that CACI hired translators who couldn't translate, that KBR supplied soldiers contaminated water, that Blackwater knowingly led unknowing civilian truckers into a combat zone where many died. More gripping than the allegations is the anguish of surviving former employees and of the survivors of those who died. A translator says people died because of bad translations. A purification specialist is visibly sickened when talking of the GIs who go home not realizing they have waterborne illnesses. The voices of the surviving truckers, big men, crack when they recall their friends' death under fire.
One of those interviewed puts it all in perspective: A true patriot, he says, would demand that these companies, and the officials who hired them, be held fully accountable.

Teddy bears behind bars

Must share this exchange from a session today on international law after Iraq at the American Society of International Law's annual meeting in Washington.
Audience member Jason Dominguez, a law professor at Texas Southern University, raised with panelist and U.S. Department of Defense lawyer Sandy Hodgkinson a question comparing the U.S. drive for rapid accountability against leaders of the former Iraqi regime with the rather different approach to domestic accountability for the abuse that Iraqi detainees endured at U.S. hands in the prison in Abu Ghraib. She answered the 1st part, then stopped. Dominguez' reply -- "And as for Abu Ghraib?" -- prompted Hodgkinson to a recitation of positive changes in U.S. treatment of the tens of thousands of Iraqis now detained in Iraq. On the list was this:

We have detainees who are making Teddy bears to give to their children when they come to visit.

Indeed.


(cross-posted at Slate's Convictions blog)

Because Ipse Dixit Says So

A reader of the newly declassified "torture memo" finds herself tempted to live-blog it; that is, to offer online real-time notes that otherwise would be scrawled in the margins replete with all manner of punctuation symbols (! and ? and, yes, #*?%!). Examples from the 81-page document issued on March 14, 2003, by John C. Yoo, then Deputy Assistant Attorney General, and entitled Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States:

p.4:

obtaining advance information about the identity of al Qaeda operatives and their plans may provide to be the only way to prevent direct attacks on the United States.

Underline's mine, and here's my marginal scrawl: Gov't admits own humint failure

p.4, again:

Interrogation of capture al Qaeda operatives could provide that information; indeed, in may cases interrogation may be the only method to obtain it.

My underline; marginal scrawl: if true, why did gov't use unreliable methods?

A cathartic exercise, perhaps. But it may be better to push back and take a broader look, as I tried to do after the 1st slew of such memos was released. In a 2005 article I wrote (p.2123):

The torrent of documents leaked in the course of the Abu Ghraib scandal revealed that, in point of fact, government lawyers had been well aware of the intricate legal terrain that the executive detention policy was traversing.

I noted (p.2124) that some of the disclosed

legal memoranda, particularly those that established legal sanction for the Executive’s detention and interrogation policies, relied on a legal opinion that the Constitution gives the 'President alone' power to determine 'any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response,' in order to deflect treaty language that might have circumscribed executive action.

This latest memorandum is much in that vein. It oft repeats the 'President alone' mantra, and it casts aside all law, domestic as well as foreign, that would appear to constrain the Executive. What troubles no less now than it did in 2005 is the fact that aspects of international law had evolved in ways that aided (pp.2124-25) U.S. deflection of international obligation:

[I]nternational human rights law ... reflects the universalist tendencies of ancient natural law yet is codified in positive instruments of law. Yet the internal enforceability of those instruments remained subject to the buffer mechanisms that public international law condones. It was on these mechanisms that government lawyers relied in order to insulate the United States from the effect of international obligations assumed when it became a state party to certain treaties. ...

The newly disclosed memo likewise points to mechanisms such as the non-self-execution doctrine and the conditioning of treaty ratification upon reservations as reasons that laws do not constrain executive officials -- military interrogators as an initial matter and, it may be presumed, their superiors, military and civilian.

This March 2003 memorandum goes a step further, turning its analysis inward in a way intended to shield individuals not only from the enforcement of the law of nations, but also from the enforcement of the law of this Nation.

Take as an example the 5th Amendment, which contains the guarantee not only of due process, but also of specific items such as the privilege against self-incrimination. That amendment does not apply to interrogation, it is claimed on pages 6-8,

► for the reason that it "was not designed to restrict the unique war powers of the President as Commander in Chief"; and

► with regard to extraterritorial interrogation, by reason of the 4th Amendment-based opinion by Chief Justice William H. Rehnquist in United States v. Verdugo-Urquidez (1990).

Is a reader to infer from the latter assertion, about interrogation outside the United States, that a President has the "war power" to set aside the 5th Amendment inside the United States? Footnote 10 on page 8 bolsters such an inference. Citing an October 2001 memo that appears not yet to have been disclosed, the footnote states, supplying its emphasis, that

our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

It is the 4th Amendment, of course, that protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Apparently some people were not nearly as secure as they might have thought; indeed, an Associated Press report speculates that the 2001 memo gave a green light to warrantless in-country surveillance.

Is a reader properly to assume, moreover, that Verdugo's discussion of the 4th Amendment's extraterritorial application vel non applies without further ado to post-9/11 matters? I have argued to the contrary (pp.295-99) with regard to the 4th Amendment itself, and most surely with regard to the 5th Amendment, which varies in text and background from the 4th. Counterarguments do not appear within the dense single spaces of this memorandum, however.

Instead, what is found is a steady train of affirming assertions. And more. In 2005 I had found (p.2123) in disclosed memoranda a general lack of resort to "the ipse dixits that had characterized public statements" of the Executive. Not so in this memorandum. Sweeping assertions like those on page 13, of Executive power to the exclusion of other branches, are supported almost solely by past memoranda of the Office of Legal Counsel.

In short, this latest document does nothing to alter my 2005 conclusion (p.2126), one that's at odds with what's been called the "lawyerly" nature of all this:

The disclosed memoranda provided rare and troubling evidence of the deliberate construction of a framework that appeared to be ruled by law, but was not. The framework might better be termed 'legalist' rather than 'legal'; within it, the only laws recognized were those allowing free rein for presidential prerogative dressed in the guise of legal constraints. For more than two years, laws that the Executive chose neither to acknowledge nor to accommodate seemed not to operate as law at all.

(cross-posted at Slate's Convictions blog, which has related posts here)

Capacity for outrage: Irrevocably damaged?

That's the concern voiced in "The Harm Initiative," an excellent item by Slate law columnist Dahlia Lithwick (left). She recalls having been worried that the 2004 disclosure of the Abu Ghraib detainee abuse photos would prove to be "a sort of foot in the door for looser torture standards—a way to begin desensitizing the American people to the kinds of abuse that had been going on in secret." (We've posted similar concerns about the effect of depicting violence here and here.)
Congress' loosening of standards in the Military Commissions Act of 2006 went a long way to that end, Lithwick writes. She then moves to her current concern: that "just as those images paved the way to our broader torture policy," any further information of "the CIA torture tapes now stand to do the same thing for water-boarding in particular."

Not just water under the bridge

Concerns about the nomination of Michael B. Mukasey were posted here the very same day that President George W. Bush tappped him to become the next Attorney General of the United States. At that time it seemed the concerns would fall on deaf ears; reporters predicted little opposition to a man who clearly possesses the credentials for the job. But that's not what happened.
After sailing through the 1st day of Senate Judiciary Committee hearings, in part because he disavowed the so-called "torture memo" of August 1, 2002 (as the Justice Department did years ago; see my article Abu Ghraib), on Day 2 Mukasey foundered, refusing to give a straight answer to a straightforward question. At issue was "waterboarding" -- pretending to drown an interrogee, a tactic that, as we've posted, the United States is said to have deployed against Khalid Sheikh Mohammed and certain other post-9/11 detainees. (The image at left, which reflects concerns about the recent proliferation of depictions of violence, is the one we've used consistently to "illustrate" this topic.)
The question: Is waterboarding torture?
He "remained mum" on this point, and his answer has not changed in the 2 weeks since the hearing. Yesterday, according to the New York Times, Mukasey "said that waterboarding and other harsh interrogation techniques 'seem over the line or, on a personal basis, repugnant to me; and promised to review the legality of such methods if confirmed." But as to "whether waterboarding, which simulates drowning, was illegal torture," he "could not say."
That position prompted Senators Christopher Dodd (D-Conn.) and Barack Obama (D-Ill.) to oppose Mukasey's nomination. Other presidential candidates then followed suit, and with good reason.
There ought to be no doubt that this practice is illegal. It's an assault and battery that has been known at times to result in death. It's cruel, inhuman, and degrading treatment. The United States prosecuted enemies as war criminals for it in prior conflicts. (See Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S. Courts, 45 Columbia Journal of Transnational Law 468 (2007)). And when it's done by state actors in a (misguided) effort to get information, waterboarding fits this definition:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

That, according Article 1 of the international convention that the United States ratified more than a decade ago, is torture. Anyone who can't find the words to say so shouldn't be seeking the job of the United States' top law enforcement officer.

Coalition of the billing: contractors in Iraq

I have to give credit for that snappy title to Peter Singer, a Brookings Institution scholar who's written on military contracting. Cited in the LA Times, Singer quipped that the figures on who’s fighting in Iraq indicate that it’s not a “coalition of the willing”, as originally touted. Even counting the recent troop buildup, American military personnel (160,000 soldiers and a few thousand civilian government employees) are outnumbered by the 180,000 American, foreign and Iraqi civilian contractors. Apparently, using private contractors is nothing new—the practice dates at least to the American Revolution. Functions vary, from construction to security to weapons system maintenance, and some military officials claim that having contractors cuts costs and allows troops to get down to the business of fighting. But William Nash, a retired Army general and reconstruction expert, claims that “hiring guns” is not only “obscene”, but dangerous, because the military doesn’t have control over all of the coalition forces’ guns. Another danger is that contractors can and have refused to deliver supplies in combat zones. Still another danger is the lack of accountability: there is no centralized record, so we don’t know how many contractors there are, or where they are. In addition, private security contractors have been involved in firefights with Iraqis, but only a few have been prosecuted for serious crimes committed by American forces (contractors are immune from criminal prosecution in Iraq and not likely to be successfully prosecuted in the US, particularly given the limitations on the War Crimes Act imposed by the Military Commissions Act). But accountability for crimes in Iraq doesn’t stop at equal treatment between soldiers and contractors. As we’ve seen with the torture at Abu Ghraib, lower-level troops have been court-martialed while the top brass has escaped censure, with the notable exceptions of Generals Janis Karpinski, who was demoted, and Antonio Taguba, who says he was forced to retire after his investigation into the matter . See also yesterday's post by Vera Brittain noting lower-level prosecution, whereas there may be a generalized problem with troops from Camp Pendleton. Who's doing the training there?

Read On! ... "The Story of Cruel & Unusual"

(Read On! ... occasional posts on writing we're reading) Much has been written about the post-9/11 memos in which American lawyers at the Departments of Justice and Defense deployed law-like arguments to justify coercive interrogation of persons seized in what those same lawyers call a Global War on Terror. (My 2¢ is here.) The memos, it is said, "tortured" law and logic.
Double-edged invocation of a term whose Latin root torquēre means "to twist," whether the object of the action be a body of law or that of a human being, merits careful consideration for scholars like Colin Dayan (right), Robert Penn Warren Professor in the Humanities at Vanderbilt. But the focus of her newest book are 2 other words essential to those memos: Dayan's "The Story of Cruel & Unusual" argues that centuries of U.S. Supreme Court torturing (if I may) of these latter adjectives laid a legal foundation upon which lawyers could, with relative ease, construct what are now known as the "Torture Papers." After establishing a disturbing link between slavery and the Constitution's 8th Amendment, she stresses a memo that relied on interpretations of "cruel and unusual punishments" to excuse abuse absent evidence of "deliberate indifference" and "wantonness." Given the constraints of prison litigation, complainants seldom can prove that level of intent, Dayan points out. As a result, inhumanity occurred with impunity in prisons in America, Dayan states, and, in recent years, in America's offshore prisons as well.
As Jeremy Waldron, who's also analyzed the memos, writes in the book's foreword, "Dayan comes perilously close to depriving us of ... meager crumbs of moral discomfort" in arguing that abuse at Abu Ghraib and Guantánamo was in no sense aberration but was, rather, "business as usual for Eighth Amendment jurisprudence."
[Aside: Dayan and Waldron both will provide critiques of international law scholarship at next month's ASIL/AALS conference in Vancouver. Details here.]

On May 17, ...

...1954, in Bolling v. Sharpe and Brown v. Board of Education, the U.S. Supreme Court ruled unanimously that the Constitution's 5th and 14th Amendments forbid segregation of public schoolchildren on account of their racial heritage. NAACP lawyer Thurgood Marshall, who'd argued 1 of the consolidated cases, predicted to the New York Times "that the people of the South, the region most heavily affected, were law-abiding and would not 'resist the Supreme Court.'" Although some schools, like this one in Washington, D.C., did integrate quickly, Marshall's prediction proved overly optimistic. (1955 photo by Thomas J. O'Halloran of Washington's Barnard School courtesy of Library of Congress.)
...2005, U.S. Army Spc. Sabrina Harman, who appeared on some of the photographs taken of detainee abuse at Iraq's Abu Ghraib prison, was sentenced to 6 months in prison the day after a she was found guilty on 6 of 7 charges. She apologized at her sentencing hearing: "'My actions potentially caused an increased hatred and insurgency towards the United States, putting soldiers and civilians at greater risk. ... I take full responsibility for my actions.' "