Courage in our Convictions

Eagle-eyed blogreaders will notice that a couple of my recent posts (here, and today, here) have been cross-posted at Convictions, the just-launched legal blog at Slate, the online magazine owned by Washington Post.Newsweek Interactive Co. Convictions is self-described as

Slate's blogging destination for smart legal conversation and commentary. Law plays an increasingly important role in American public and private life, defining the myriad ways we interact, transact, relate and dispute with each other. We hope that, by sharing their own convictions on this blog, our contributors will help inform and shape the American conversation about law.

My co-contributors, I'm pleased to announce, include a number of women featured here in the course of this past year:

► IntLawGrrl guest/alumna Dawn Johnsen, Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law, Bloomington. Formerly Acting Assistant Attorney General for the Office of Legal Counsel at the U.S. Department of Justice, Dawn guest-posted last month on the question of investigating CIA waterboarding.

► Rosa Brooks, Professor of Law, Georgetown University Law Center, Washington, D.C., a number of whose Los Angeles Times columns we've featured.

► Dahlia Lithwick, Slate senior editor and legal writer, on whose work we've also posted.

Other women (we make up a third of the Convictions roster; not bad for the outside-the-pink-zone):

► Emily Bazelon, Slate senior editor, with a focus on health, law, and family.

► Judge Nancy Gertner, U.S. District Court, Boston, Massachusetts, who teaches at Yale Law School and practiced in Boston before joining the bench in 1993.

► Deborah Pearlstein, Visiting Scholar, Princeton University's Law and Public Affairs Program. She was the founding director of Human Rights First's Law and Security Program and a speechwriter in the White House of former U.S. President Bill Clinton.

For details on blog organizer Phillip Carter and our other distinguished male colleagues at Convictions, click here.

Happy birthday to us!

Hard to believe it's been a year since I whined to our intrepid founder Diane Marie Amann about the dearth of international law blogs and got back an email saying, "now you've done it!" What? Done what? and lo! and behold, she had launched IntLawGrrls. Since then, Diane's managed to convince more than 20 outstanding women to join in on this crazy adventure that has definitely been keeping me on my toes keeping up to date with what's going on around the globe. I've not only learned a lot from my co-contributors, I've also come to read the newspaper with an eye toward blogging: today I'd like to draw your attention to a one-woman blog, Migration Information Source (which has been added to our list of links to the right), described here by Ruben Rumbaut, UC Irvine sociologist and authority on the children of immigrants to the US, as "the best online source of information on migration" he's seen "worldwide". Not surprising, perhaps, since no migration topic is too obscure for the blog's editor, Kirin Kalia, who describes herself as, among other things, a "total migration geek". Kudos Kirin, bravo Diane and happy birthday, IntLawGrrls.

States of emergency & habeas corpus

I am grateful to Diane for so thoroughly completing my post. As she so rightly points out, neither the US executive nor the legislature has suggested suspending the Constitution or dismissing members of the Supreme Court or any other court, though the Patriot Act, at least in its first version, arguably does away with much of the 4th Amendment. Diane also rightly says that Lincoln’s suspension of the writ of habeas corpus was controversial even in the mid-1800s. Today, the right to habeas corpus is at least implicitly nonderogable under international law: while no international treaty says so expressly, the Paris Principles of 1984 on states of emergency (see Richard B. Lillich, "The Paris Minimum Standards of Human Rights Norms in a State of Emergency", Am J. Int’l L., Vol. 79 (1985), pp. 1072-1081) eschew the suspension of habeas during states of emergency. The American Court of Human Rights followed that recommendation, judging in 1987 that habeas may not be suspended during a state of emergency; and the UN Human Rights Committee observed in 2001 that this essential right should not be suspended during emergencies. In addition, it is arguably protected by Common article 3 of the Geneva Conventions, which, as the Supreme Court recognized in Hamdan, requires that enemy combatants be judged by “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”. The right to habeas corpus is one of them. (illustration courtesy of the American Civil Liberties Union's "Find Habeas" campaign, about which we've posted here)

State of Emergency in Pakistan

400-500 people have already been arrested since Pakistan's President Pervez Musharraf declared a state of emergency just after midnight this morning, most of them opposition leaders, lawyers and rights’ activists. (Photo: B.K. Bangash for AP)
Many major news stations, including international channels like the BBC and CNN were suspended and the Supreme Court was shut down. The Court was to rule shortly on the legality of Musharraf’s reelection; Musharraf claims it has released 61 men being investigated for terrorism. Quoting Abraham Lincoln, Musharraf claimed the emergency – and related rights limitations – were necessary to limit terrorist attacks and, oddly, to "preserve the democratic transition" he claims to have initiated 8 years ago in taking power from the elected president in a bloodless coup. (Video of Musharraf's invocation, in English, of Lincoln is available just below this post; Diane's comments on that invocation are just below the video.)
Now, let’s take a look for a moment at international law and Musharraf's claim:
The purpose of a state of emergency is, indeed, to preserve democracy when it is threatened. That is, a state whose existence (or existence as a democratic state) is threatened may declare a state of emergency and take measures that restrict certain fundamental rights, with the sole purpose of restoring the status quo as quickly as possible. Under the International Covenant on Civil and Political Rights of 1966, the state must follow certain procedures for its declaration of an emergency to be legal. To be legitimate, the measures it takes must be necessary and proportionate to the danger. “Proportionate” refers not only to the harshness of the measures, but to their duration and territorial reach. In sum, a state of emergency is supposed to be a short-lived shift in the normal democratic balance of power, both between branches of government and government and the people, deemed necessary to recover from a crisis.
Pakistan is not a party to the Covenant, but I would argue that the theory of emergency powers and the rule that rights’ limiting measures must be necessary and proportionate have been around so long and cited so broadly (if, like torture, more often respected in the breach than in practice) that this rule now amounts to custom. In addition to these rules, a state of emergency is seen as illegitimate and fast-heading towards a dictatorship when democratic institutions – particularly the judiciary – are imperiled. Besides arresting about 80 lawyers, Musharraf removed the entire Supreme Court and swore in four “loyal” justices, and replaced judges in the regional High Courts as well. Opposition lawyers claim, however, that the 4 new Supreme Court justices were the only ones the government could find out of the 17 available who would accept being sworn in. In addition, the parliamentary elections planned for January 2008 have been postponed, perhaps for a year. When Parliament stops functioning independently, what UN special rapporteur Leandro Despouy calls “institutional degradation” sets in and democracy, far from being restored, is paralyzed by the state of emergency.
Now, in the first report I read this morning (which is no longer online), I could have sworn I read Condoleezza Rice being quoted as saying that the US would not be able to support Musharraf’s move. Reports a few hours later say that the US is not suspending its aid to the Pakistani military. Considering the illegality and illegitimacy under international law of the now 6-year-old US state of emergency with respect to the 9/11 attacks (unlike Pakistan, the US is a party to the International Covenant) (see, for ex., Diane Marie Amann, “Le dispositif américain de lutte contre le terrorisme”, Revue de Science Criminelle, 2002-4, 745-764; my dissertation on the subject may not ever be published), the Bush administration’s continued military support during Pakistan’s self-induced crisis is disappointing, but somehow, not a surprise.

Estimates in the fog

Pointing to the enormous gap between U.S. estimates of the number of humans trafficked (50,000 a year) and U.S. cases involving trafficking (1,362 since 2000), criminologist Ronald Weitzer told the Washington Post:

'The discrepancy between the alleged number of victims per year and the number of cases they've been able to make is so huge that it's got to raise major questions. It suggests that this problem is being blown way out of proportion.'

Though law enforcement agents' lack of knowledge about or interest in the problem no doubt furthers that gap, in Weitzer's view, that can't account for all of it. In any event, the political capital to be won from embrace of the issue -- of critical concern to some in this administration's base -- itself suggests a need for careful examination of the scope of the problem and the proper means to address it.

The problem scarcely is limited to human trafficking. More than once the declaration of a transnational threat -- from drug trafficking, for instance, or money laundering, or terrorism -- has spurred massive spending campaigns. Campaigns have been undertaken with little identification of goals, little study of what might work to achieve those goals, and little consideration of how stepped-up law enforcement would impinge on civil liberties; in short, with little genuine cost-benefit analysis.

Inevitably, assessment of a criminal enterprise will contain "estimates in the fog." Petrus C. van Duyne, Organized Crime in Europe 113 (1996), quoted in Diane Marie Amann, Spotting Money Launderers: A Better Way to Fight Organized Crime?, 27 Syracuse Journal of International Law and Commerce 199, 229 (2000). That fact alone counsels care in crafting law enforcement mechanisms that will do the most harm to law-breakers with the least intrusion on law-abiders.

Padilla case to the jury

Today a federal jury's expected to begin deliberating the fate of José Padilla, a Brooklyn-born, Chicago-raised American citizen. Padilla was arrested at O'Hare Airport in 2002 and detained in a South Carolina brig for years based on the U.S. executive's assertion that he was an "enemy combatant" bent on helping al Qaeda by exploding a radiological device -- known as a "dirty bomb" -- inside the United States. At the Supreme Court in 2004, along with Rasul v. Bush and Hamdi v. Rumsfeld, Padilla's case was sent back to the trial court on jurisdictional grounds. Only when a 2d round of Supreme Court litigation loomed did the executive transfer Padilla to the custody of the federal criminal court in Miami, where he and 2 others've been on trial on charges unrelated to any "dirty bomb" plot.

Reporters, commentators -- even, at times, the judge -- have called the prosecution case thin. And as long ago as oral argument in 2004, questions have been raised about the harsh conditions of detention and interrogation that Padilla endured. (The photo, from a government video, depicts Padilla, shackled, blindered, and deafened, on his way to the dentist.) Those conditions haven't been before the jury, though, and the brand of "terrorist" might be hard to shake even in a thin case. My views on the case've just been published in the conclusion to Punish or Surveil, my contribution to a national security symposium edition of Iowa's international law journal, Transnational Law & Contemporary Problems. A sample:

Even an acquittal would not, by that fact alone, mean failure. Built into the American system of criminal justice is a tolerance for acquittal. A “fundamental value determination of our society,” to repeat Justice John M. Harlan’s oft-repeated maxim, is “that it is far worse to convict an innocent man than to let a guilty man go free.” This is scarcely less the case when acquittal results because governmental misconduct has placed certain evidence outside the bounds of a properly constituted court. Judicial exclusion of such evidence -- indeed, a prosecutorial decision not even to adduce such evidence -- serves the liberty interests both of the defendant on trial and of the society at large.

For a full understanding of the case and its potential consequences, you can do no better than to read Warren Richey's 3-part series just concluded in the Christian Science Monitor. The article titles tell the story:

► "US terror interrogation went too far, experts say; Reports find that Jose Padilla's solitary confinement led to mental problems."

► "US Gov't broke Padilla through intense isolation, say experts; Despite warnings, officials used 43 months of severe isolation to force Jose Padilla to tell all he knew about Al Qaeda."

► "Beyond Padilla terror case, huge legal issues; His detention and interrogation in the US raises basic constitutional questions."

Today's Monitor editorial commenting on the series states:

[T]he US military used terror -- Padilla had little or no human contact for more than three years -- to fight terror. ...
The jury well may find Padilla guilty, but it may also see the injustice done in his case, and decide otherwise.
Victory in war is sometimes a victory simply for the rule of law.