Go On! IntLawGrrls at AALS

(Go On! is an occasional item on symposia and other events of interest)

The Association of American Law Schools will be holding its 2011 annual meeting in San Francisco from January 5-8th. This year's theme is: Core Educational Values: Guideposts for the Pursuit of Excellence in Challenging Times.

If you are attending, be sure to check out IntLawGrrls and IntLawGrrl guests/alumnae in action. As detailed in the annual meeting program, they are:

Wednesday, Jan 5th

► At 2:00 pm, Afra Afsharipour will be speaking at the Law and South Asian Studies Section's panel: Lawyers as Social Change Agents in South Asia.

► Also at 2:00, Michele Bratcher Goodwin will speak on the Biolaw Section's panel: Synthetic Biology Meets the Law, and Penelope Andrews will moderate the Africa Section's panel: U.S. Africa Policy at the Midpoint of President Obama's First Term.

Thursday, Jan. 6th

► At 9:00 am, Stephanie Farrior, Hari M. Osofsky, Christiana Ochoa, Annecoos Wiersema, Leila Nadya Sadat, and Cindy Galway Buys will be participating in the International Law Section's panel: International Law Year in Review.

► At 2:00, Penelope Andrews will be speaking on the Constitutional Law Section's panel: American Constitutionalism in Comparative Perspective.

► At 2:30 pm, Lisa R. Pruitt will take part in a panel on Class, Socio-Economics, and Critical Analysis.

Friday, Jan. 7th

► At 8:30 am, Caroline Bettinger-López and Alexandra Huneeus will present at the
New Voices in Human Rights panel of the Section on International Human Rights.

► At 10:30 am, yours truly, Rebecca M. Bratspies, and Hari M. Osofsky will be participating in the Hot Topics panel: The BP Blowout Oil Spill and Its Implications.

► Also at 10:30, Laurel S. Terry will be speaking on the Education Law Section's panel: Immigration and Higher Education.

► At 4:00, Michelle Oberman will be speaking on the Law, Medicine and Health Care Section's panel: Women's Choices, Women's Voices: Legal Regimes and Women's Health.

Saturday, Jan. 8th is an action-packed IntLawGrrls day:

► At 7:00 in the morning, Laurel S. Terry will be speaking at the AALS Workshop and Continental Breakfast for 2010 and 2011 Section Officers.

► At 8:30 am, yours truly, Rebecca M. Bratspies, will be speaking on the Animal Law Section's panel: Treatment and Impact of Farmed Animals.

► At 1:30 pm, Elizabeth L. Hillman will be speaking on the National Security Section's panel: The Relationship Between Military Justice, Civil/Military Relations and National Security Law.

► Also at 1:30 pm, Jenia Iontcheva Turner will be speaking on the Comparative Law Section's panel: Beyond the State: Comparative Approaches to Group Political Identity in the Age of the Transnational.

► At 3:30 pm, Christiana Ochoa, will be moderating the International Law Section's panel: Was Medellin Wrongly Decided?

► Also at 3:30 pm, Jennifer Kreder will speaker on the Section on Law and Anthropology panel entitled The Role of Cultural Property Across Cultures and Legal Regimes.

As always, I am struck by the wide range of interests that our fearless leader Diane Marie Amann has brought together under the IntLawGrrls umbrella.

FYI: Because the Hilton is embroiled in a labor dispute with UNITE HERE, Local 2 (the hotel's workers have been working without a contract for over a year), registration and most of the AALS events have been moved to other nearby hotels. There may be other last-minute changes, so be sure to go by the locations in the schedule you receive at check-in rather than the brochure that circulated last month. See you in San Francisco.

(credit for 2010 poster of San Francisco by Kevin Dart)

Go On! "Law & Memory"

(Go On! is an occasional item on symposia and other events of interest)

Law and Memory is the subject of a conference marking the 10th anniversary of the University of Southern California Center for Law, History and Culture, to be held February 25 and 26, 2011, at the USC Gould School of Law, 699 Exposition Boulevard, Los Angeles, California. Organizers write:

While scholarship on history and memory has exploded in recent years, and much of it has centered on the role of trials and other legal processes in shaping collective memory, only recently has work in the new field of law and humanities begun to explore the intersections of law and memory more self-consciously.

Law as a means to remember or forget the past will be examined not only by jurists, but also by scholars of history, psychology, literature, communications and cultural studies. Keynote speaker will be Robert W. Gordon (Yale, Stanford), the keynote speaker. Among the many others taking part will be IntLawGrrls Elizabeth Hillman (Hastings) and guest/alumna Mary L. Dudziak (USC) (hat tip), as well as Elaine Scarry (Harvard), Annette Gordon-Reed (Harvard), and Cheryl Harris (UCLA).

There's a nominal fee for attendees; registration and program details here.

Go On! Proving International Sex Crimes

The Forum for International Criminal and Humanitarian Law in connection with Yale University and the University of Cape Town is hosting a seminar on "Proving International Sex Crimes" in New Haven on Oct. 15-16, 2010.

Professor Morten Bergsmo (University of Oslo, Visiting Professor at Georgetown Law Center) (right) is organizing the seminar and will also serve as a moderator for IntLawGrrls' workshop two weeks later on Gender and International Criminal Law at ASIL's Tillar House.

The purpose of the Yale seminar is to

advance the discourse on international gender crimes by addressing one of its weakest links, the effective enforcement of individual criminal responsibility for such violations, in particular for those with higher responsibility.

Key questions to be explored include:

• What are the legal requirements for such crimes for the different forms of participation in their commission?
• Which requirements are conduct-specific and which refer to the context in which the conduct occurred?
• How have the different legal requirements been proved in cases?
• Where do the main difficulties lie and what are the typical excuses?
• What is the significance of 'systematic' sexual violence, sexual violence as a 'tool or instrument of warfare', and sexual violence as 'persecution'?
• What can be learned from the prosecution of other international crimes for the prosecution of sex crimes?

The full program is available here.

Speakers include our colleagues:

IntLawGrrl Kelly Dawn Askin (Open Society Justice Initiative)

IntLawGrrl Beth Hillman (Hastings School of Law, Visiting Professor at Santa Clara University School of Law) (left)

Elisabeth Wood (Yale University) (right)

David Cohen (U.C. Berkeley)

Hope to see you there!

'Nuff said

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

Raised in small-town Oklahoma, I continue to live its values. I am fiercely patriotic, making national security of paramount importance to me. I served in the military for more than a decade, and my friends still deploy in harm’s way. I am also the mother of young children. What mother doesn’t want a safe world for her kids?
Perhaps because of my love of history, I have been more than a little surprised at the vociferous opposition of my fellow conservatives to treating these foreign terrorists as we have treated their counterparts for decades. No one suggested trying the Panamanian dictator Manuel Noriega, the Lockerbie conspirators or the original World Trade Center bombers in military tribunals. In fact, we usually clamor for other countries to extradite terror suspects to the United States for trial.

-- Our colleague Michelle McCluer (below left), Executive Director of the National Institute of Military Justice, in an op-ed entitled "Civilian court best spot for terror trials," published in The Oklahoman newspaper on Monday, the 15th anniversary of the bombing of the federal building in Oklahoma City. (credit for above-right photo of Daniel Patrick Moynihan U.S. Courthouse, Manhattan) Michelle, who's observed GTMO military commissions proceedings along with other NIMJ'ers (including IntLawGrrl Beth Hillman and yours truly), ended her excellent commentary on this succinct note:

Trying detainees in a system that has yielded proven results doesn’t show a lack of understanding of our national security interests; rather, it is a recognition that terrorists are not above the Constitution for which our military members fight. Conservative values demand that terrorists be tried in civilian court, saving taxpayer dollars and providing justice to the victims.

Go On! Women in the military

(Go On! is an occasional item on symposia and other events of interest)

"Women in the Military: Fighting For Their Rights" is the title of a program to be presented from 12 noon to 2 p.m. this Thursday, March 25, at the American University Washington College of Law, 4801 Massachusetts Avenue, Washington, D.C. Sponsors are the National Institute of Military Justice, on whose boards IntLawGrrls Elizabeth Lutes Hillman, Beth Van Schaack, and I proudly serve, as well as the law school's Women’s Law Association and Veterans Law Student Association.

Featured panels:
► Current Issues Affecting Women In The Military. Speaking will be Captain Lory Manning, Director of the Women in the Military Project for the Women's Research and Education Institute; Commander Carol Stundtner, Gender Policy Advisor, U.S. Coast Guard; and Captain Kari Crawford, Attorney, Criminal Law Division, U.S. Army JAG Corps. Michelle M. Lindo McCluer, NIMJ Executive Director, will moderate.
► Addressing Sexual Assault In The Military. Brigadier General (ret.) Thomas R. Cuthbert, Senior Technical Advisor for the Defense Task Force on Sexual Assault in Military Services; and Janet Mansfield, Attorney, Criminal Law Policy Division, Office of the Judge Advocate General, U.S. Army, and Legal Advisor to U.S. Army Sexual Harassment/Sexual Assault Response and Prevention Program.

The event is free. Details and registration here.

Fantasy on Island of Cuba

Fifty-five years ago American moviegoers escaped with matinee idol Gene Kelly across The Pond to the fantasy world of Brigadoon, a highland town that disappears for a century at a time. That exotic image does fitting service as metaphor in the newest National Institute of Military Justice account of proceedings at the "brig" across the water where the United States continues to detain hundreds of noncitizens, a small handful of whom it's charged with crimes to be adjudicated by military commission.
Telling of his adventures in an account entitled "Brig-adoon: Report from Guantanamo" is our colleague Gene Fidell, NIMJ's cofounder and president who'd served as a judge advocate in the Coast Guard from 1969-1972 and is currently Senior Research Scholar in Law and Florence Rogatz Lecturer in Law at Yale Law School. He's also the co-author, along with Dwight Sullivan and IntLawGrrl Beth Hillman, of a casebook on military justice.
Fidell repeats concerns raised in reports by prior NIMJ observers, including yours truly (all reports are available here): among others, the persistent problem that the law governing GTMO proceedings remains very much in flux. He stresses too the "sheer time, effort, and expense involved" in periodically transporting an entire trial apparatus to and from U.S. military base on the island of Cuba. He questions the "administrative complexity" of bringing in and retraining personnel, and expresses concern that some proceedings are "rehearsed at length behind closed doors," thus "shortchanging the public." A key paragraph:

Is it possible to dispense justice under these circumstances at such a distant location? Yes. The courtroom is entirely acceptable .... Proper decorum is carefully observed. But I have to say, as a taxpayer, that the arrangements are, overall, wildly inconvenient. I am not persuaded that the reasons for conducting military commission proceedings at Guantanamo, assuming they ever had any force, today come even close to justifying the expense in human resources and sheer out-of-pocket costs. If, as the Administration has decided, military commissions should continue to be employed, let it be done on the mainland.

Moving proceedings Stateside, Fidell notes, would both make attendance much easier for victims' families and ensure greater coverage by media, whose shrinking staffs and budgets make trips to GTMO ever less frequent.

Fidell concludes by predicting that in the next decade the commissions will be shut down and "the whole shebang will revert to Cuba" and become "a magnificent resort area, with regular direct flights from New York."
Time will tell.

(credit for AP/Mark Wilson photo of Guantánamo at sunset)

All our best to Diane Orentlicher as she heads to State's Office of War Crimes Issues

It is IntLawGrrls' great honor to announce that one of our longtime members, Diane Orentlicher, has just started as Deputy, Office of War Crimes Issues, at the U.S. Department of State!
An internationally renowned expert in international criminal law, Diane will work with Stephen J. Rapp, the former Prosecutor at the Special Court for Sierra Leone who assumed his duties as Ambassador-at-Large for War Crimes Issues at the beginning of September. (prior post) She'll be an integral player in the work of the office, which, as stated on its website:
► "advises the Secretary of State directly and formulates U.S. policy responses to atrocities committed in areas of conflict and elsewhere throughout the world";
► "coordinates U.S. Government support for war crimes accountability in the former Yugoslavia, Rwanda, Sierra Leone, Cambodia, Iraq, and other regions where crimes have been committed against civilian populations on a massive scale"; and
► "works closely with other governments, international institutions, and non-government organizations, and with the courts themselves, to see that international and domestic war crimes tribunals succeed in their efforts to bring those responsible for such crimes to justice."
Diane will be leaving her position as Professor of International Law and Co-Director of the Center for Human Rights and Humanitarian Law, Washington College of the Law, American University, Washington D.C., which has posted on her appointment here. She's also served inter alia on the boards of the Open Society Justice Initiative and (along with IntLawGrrl Beth Hillman and yours truly) of the National Institute of Military Justice. Diane served as an independent expert on combating impunity by September 2004 appointment of then-U.N. Secretary-General Kofi Annan.
We at IntLawGrrls will miss our colleague-turned-guest/alumna, whose transnational foremother, "Beatrice," was the inspiration for our Women at Nuremberg series. We look forward to all good things at State.
To all of us, Diane writes:

'It's been an honor to be a small part of an incredible project. I've learned so much from the smartest 'Grrls around -- and will remain an avid reader of IntLawGrrls' sensational posts.'

Heartfelt congratulations, Diane!

On the Job! National Institute of Military Justice fellowship

(On the Job! pays occasional notice to interesting intlaw job notices) A nongovernmental organization on whose board IntLawGrrl Elizabeth L. Hillman and I both serve, the National Institute of Military Justice, is seeking 1 or more persons on law firms' deferred-associate program to serve a year as NIMJ Fellows. NIMJ's based at, and affiliated with, Washington College of the Law, American University, Washington, D.C.
Duties may include:
► Helping to advance NIMJ’s advocacy work by researching and drafting amicus curiae briefs in military justice and military commission cases, and, periodically, traveling to Guantánamo to observe and provide commentary about commission proceedings (its 1st published NIMJ Reports from Guantánamo includes dispatches from observers including yours truly);
► Assisting the NIMJ to develop commentary and analysis on proposed military justice reform and military commission law through various media; and
► Providing support for the Cox Commission on Military Justice, an independent body charged with proposing reforms in military justice.
Applicants should submit a resume and writing sample to Jonathan Tracy, NIMJ Assistant Director, by e-mail at jtracy@wcl.american.edu or via snail at 4801 Massachusetts Ave., N.W., Washington, D.C. 20016. Applicants with questions about the post or process may call 202-274-4322.
Further details here.

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

Write On! National security law workshop

(Write On! is an occasional item about notable calls for papers.)

Austin, Texas, will be the site of the 2nd annual National Security Law Junior Faculty Workshop, to be held on March 12 and 13, 2009. (Among the presenters at the inaugural workshop, held last year at Wake Forest, was IntLawGrrls' own Beth Hillman.)

This year's workshop will combine discussion of works-in-progress with training in the law of war, the latter provided by instructors from the International Committee of the Red Cross and the U.S. Army Judge Advocate General School.

For details on this year's workshop, link to the "here" details at this post. For questions, contact Robert M. Chesney at rchesney@law.utexas.edu.

Anyone is welcome to attend, and all are welcome to submit a paper for consideration. The deadline for submitting a paper or abstract for consideration is January 15, 2009.

"Gender devaluation" & the academy

In the June 2008 issue of the Cambridge University Press journal Perspectives on Politics (hat tip to Elisabeth J. Wood), an article entitled "Gender Inequality in Academia: Bad News from the Trenches, and Some Possible Solutions" identifies, as a primary barrier to women achieving equality with men in academic ranks, "gender devaluation."

Co-authors Kristen Monroe, Saba Ozyurt, Ted Wrigley, and Amy Alexander present, at pages 216-17, job and salary statistics that reveal gender differentials:

► Only 29 percent of lawyers are women.

► Tenured professors are four times more likely to be male.

► The average salary of female faculty is 80 percent of male faculty's average salary.

Then they turn to their key source: in-depth interviews with 80 women faculty who taught at the University of California at Irvine between 2002 and 2006 (they term this "the largest systematic set of interview data on this topic", 230).

The authors conclude that women faculty members see a "subtle process by which women's work is devalued or minimized, so that work or positions once deemed powerful and conferring high status frequently become devalued as women increasingly take on these roles" (230). Women's response to this "gender devaluation" is not legal (women who tried that route "found it produced very little", 231), but informal collective action and indirect challenges, both of which are less likely to provoke the reprisals often triggered by overt action. The authors' recommendations include redefining "the concept of professional success" so that "it allows for alternative models" that permit less linear progress (to allow men and women to meet family needs) and improving policies with respect to family leave, longer tracks to tenure, partner-hiring, and mentoring (231).

I was especially struck by one interviewee's insight, at page 229:

Q: Does the system need a change in terms of its rewarding structure, valuing service and other administrative, managerial work as much as research, for example?
Janina: But how do you build that into a review file? How do you say Faculty X did a great job keeping the faculty from being at each other's throats after a difficult personnel decision? No, what she did was, she went into the hall. She talked to everybody. She made them feel good. That's an invaluable contribution and yet we don't value it. There is no question that the system values research and publication over services. I think there are three ways to talk about this. Where are the moments in which we reveal our values?
(1) When we hire people. We never hire people who are good citizens; we hire those who have published, and published in the right places and published frequently enough. Then we look at their research and publishing. I can tell you, nobody is being hired in the University of California system for being a good teach or being a good citizen.
(2) We can look at how people get promoted. ... Imagine if teaching really mattered, what would our promotion cases look like? We would write that section as vigorously and in the same detail as the research section. ...
(3) Service? Even less decisive than the teaching. I was actually called a chump for becoming a department chair. Why? It is a waste of time that could be spent on research and publication. It is not rewarded ...

(Cross-posted at Legal History Blog)

First at Human Rights First

Delighted to learn the Elisa Massimino (left) has been named the Executive Director and Chief Executive Officer of Human Rights First.
Elisa, who joined that NGO in 1991 and has served as its Washington, D.C., Director since 1997, earned bachelor's and master's degrees in philosophy, then a J.D. from the University of Michigan Law School. An Adjunct Professor who teaches human rights advocacy at Georgetown University Law Center, Elisa's also taught law classes at Virginia, George Washington, and American University.
The press release announcing the appointment points out that The Dark Side, reviewed in IntLawGrrl Elizabeth L. Hillman's post earlier this week, makes note of Elisa's work on behalf of persons held since 9/11 as suspected terrorists. (Our prior post mentioning this work is here.) The release states that Jane Mayer's account

credits Massimino with being 'instrumental' to the national debate on these issues. 'Massimino quietly put together a stunning coalition of retired military dignitaries ... to support the restoration of the Geneva standards in the treatment of prisoners.' Massimino, the daughter of a submarine commander, led this informal coalition of nearly fifty retired generals and admirals in meetings with the majority of the 2008 presidential candidates and many members of Congress.

An apt assessment, as all who've followed Gitmo-related issues will recognize.
Heartfelt congratulations!

(Hat tip to our Opinio Juris colleague, Kenneth Anderson)

Read On! "The Dark Side"

(Read On! ... occasional posts on writing we're reading)

The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) by Jane Mayer (below right) is making a big splash this summer. It’s landed on the New York Times bestseller list and sent its author to countless interviews, including appearances last week with Bill Moyers and David Letterman.

Despite its grim title, Mayer’s book does more than call out villains (a fairly despicable David Addington stars as Public Enemy No. 1, but many others lurk alongside). In both her book (its dedication professes her “love of American history and admiration for those who have fought to fulfill the promise of the country’s ideals”) and interviews (on Letterman she said that there are “many good guys in the military, and in the FBI”), Mayer is careful to give credit to those who resisted “the dark side”.

Among those who come out best in her account are uniformed military lawyers. Mayer documents how the JAG corps was bypassed, ignored, and isolated while key decisions were made about military commissions, the laws of war, and the rules regarding the treatment of prisoners. This is not a new interpretation; Mayer’s narrative echoes charges made repeatedly in press coverage (including her own work in The New Yorker, about which IntLawGrrls earlier posted here and here) of the White House’s frequent dismissal of military legal expertise. For example, in the drafting of the military commission order, the services’ top lawyers were “marginalized,” in the words of Rear Admiral Donald J. Guter (88) (Guter is now Dean of Dusquesne Law School in Pittsburgh), and ultimately blind-sided by the rash proposal to authorize a new version of military commissions. The infamous “torture memos” triggered shock and outrage from many military lawyers, Mayer writes on p. 232:

The memos from uniformed lawyers to the politically appointed general counsel were brimming with barely concealed disbelief at the direction the Justice Department was proposing for soldiers to take.

Mayer draws on interviews, government reports, legal analyses, and an already extensive body of scholarship to build a damning critique of post 9/11 legal conclusions and political actions. But not yet answered is the central historical question: Why did the U.S. adopt legal and military practices so wrongful in the face of such powerful opposition? Judge advocates and other officials who realized, in real time, that grave mistakes were being made could not stop the Bush administration despite what Mayer casts as truly valiant efforts.

The hubris of a few misguided individuals may be enough explanation for now. But eventually, we have to reconcile the impotence of Mayer’s “good guys” with her faith in American ideals-- and her hope for the future.

(Cross-posted at Legal History Blog)

Challenges posed by brand-new military commissions

The first trial under the Bush administration's awkward new military commission rules has begun at Guantánamo Bay, as Diane posted yesterday, with Salim Ahmed Hamdan facing a commission of 6 U.S. officers. (credit for photo of Gitmo courthouse)

The presiding military judge started with a mixed set of rulings on the admissibility of evidence obtained through coercive means; so far, the judge, Navy Captain Keith J. Allred, has rejected information elicited while Hamdan was interrogated in Afghanistan but admitted data collected in American-run prisons.

The DefenseLink military commission site maintains an extensive collection of filings and scheduling information on the Hamdan trial and the commissions in general. Reviewing the documents posted there suggests how daunting it is to create, sui generis, a brand-new criminal justice system. Dozens of motions and hundreds of exhibits (most heavily redacted) demonstrate the struggle facing prosecutors, defense counsel, judges, and commission members as they try to fit the familiar practice of courts-martial and federal criminal trials into the byzantine rules of the military commissions. Uncertainty persists at every turn, from bureaucratic detail to animating concepts:

► Were counsel appropriately detailed or inappropriately replaced?

► Whither expert witnesses?

► What constitutes "armed conflict"?

► And of course, the most remarked-upon feature of the trials, the battle over the potential admissibility of evidence obtained via torture. In the World War II Nazi saboteur case, the most frequently cited historical predecessor to the new commissions, there were but a handful of military lawyers and officers who worked for but a few weeks; today, there have already been hundreds of attorneys and military officers involved during the nearly seven years since the President's first military order regarding the trial of detainees.

(Cross-posted at Legal History Blog)

Read On! Civilians and war casualties

(Read On! ... occasional posts on writing we're reading)


Hugo Slim, Killing Civilians: Method, Madness, and Morality in War (Columbia University Press, 2008), is a fascinating and far-ranging study of civilian suffering during war. The publisher's description explains:

... Slim analyzes the anti-civilian ideologies that encourage and perpetuate suffering and exposes the exploitation of moral ambiguity that is used to sanction extreme hostility. At what point does killing civilians become part of winning a war? Why are some methods of killing used while others are avoided?
Bolstering his claims with hard fact, Slim argues that civilian casualties are not only morally reprehensible but also bad military science. His book is a clarion call for action and a passionate defense of civil immunity, a concept that is more urgent and necessary today than ever before.

Much like Drew Faust's recent book on the dead of the Civil War, The Republic of Suffering: Death and the American Civil War (Knopf, 2008) -- about which IntLawGrrls posted here -- Slim's book (if less elegantly, with the fervor of a humanitarian activist rather than the authority of a master historian) helps to strip away the veneer of civility that we routinely impose on the brutality of modern warfare.

Slim identifies common military strategies as blatantly "anti-civilian" and suggests (hopefully) that "pro-civilian thinking and behavior" (7) can alter the violent balance of war and shift conflict toward the protection of civilians. He writes:

Above all, this is a book about intention and suffering, identity and ambiguity, tolerance and compassion.

(7) He seeks to complicate our understanding not simply of "citizen" or "soldier" but of "civilian" itself. (8)

Slim's effort to sort out the essence and liabilities of the "civilian" label is especially intriguing. He points out that civilians are often regarded with suspicion and as lacking integrity by soldiers, and that the sacrificial rhetoric of war accepts, and even promotes, not only military but also civilian casualties as a necessary prerequisite to positive change. Death and suffering can become their own justification in the face of a need to give meaning to tremendous and otherwise inexplicable loss. It is a reckoning that Faust finds in the mourning for and celebration of the Civil War dead: her preface is entitled "The Work of Death." She writes that the 1895 Memorial Day speech of Oliver Wendell Holmes Jr., who later would serve 30 years as a U.S. Supreme Court Justice,

became emblematic of the elegiac view of the war that hailed death as an end in itself.

(Suffering, 270)

For a military historian's perspective on Slim's volume and other aspects of war, past and present, see the blog of Mark Grimsley, the Ohio State historian who is now the Harold K. Johnson Professor of Military History at the U.S. Army War College.

(Cross-posted at Legal History Blog)

Marriage in California

The California Supreme Court yesterday unanimously denied a petition for extraordinary relief that would have removed the anti-same-sex marriage initiative from the November 2008 ballot (here is the Court's marriage cases site).
The National Center for Lesbian Rights (NCLR) argued in its petition that the initiative, which would strip same-sex couples of the right to marry, is such a significant change in the California Constitution that it constitutes a revision, not a mere amendment, to the Constitution and therefore requires a more deliberative democratic process before being presented to voters. (credit for images) If passed, the measure would strip a fundamental right from a specified minority – which is just the sort of majoritarian action that courts, not electorates, are best positioned to reckon with. Donna Ryu, a clinical professor of law at the University of California, Hastings College of Law, wrote an amicus letter in support of the NCLR that garnered the signatures of many California law professors (including me – and our Legal History Blog colleague, Mary Dudziak). Unfortunately, the Court did not address the merits of the petition.
For me, having recently moved into the democratic chaos of California, this issue has more resonance than most. First, the extended oral argument triggered media coverage and lengthy commentary (Hastings ran a live feed of the hours of argument in a room open to the public, followed by a panel of professors analyzing the case). Then the release of the momentous decision brought dozens of ecstatic phone calls and celebratory emails from family-law professors and friends who support same-sex marriage rights. On the first day of same-sex weddings, City Hall in San Francisco was as tranquil and joyful a place as I’ve ever seen.
But it’s being part of a California lesbian family that makes me feel as if history -- and marriage -- have been thrust upon me, like it or not. Everyone has asked, “so, are you getting married now?!” Yes, I think we are, but I can’t help but be startled by the question. Perhaps I should have spent more time preparing for this moment of liberation; instead, I was figuring out how to build a relationship in spite of legal and political obstacles -- and developing a healthy skepticism about marriage as an institution. From Harriet Jacobs, Incidents in the Life of a Slave Girl (p. 302):

Reader, my story ends with freedom; not in the usual way, with marriage.

(Cross-posted at Legal History Blog)

Halberstam on the Korean War

I have been reading David Halberstam's The Coldest Winter: America and the Korean War (Hyperion, 2007), a finalist for the 2008 Pulitzer Prize in history. As Max Frankel wrote in his review in the New York Times Sunday Book Review in September 2007, Halberstam’s book
evokes the nobility and crazy heroism of outnumbered American grunts in a dozen of the war’s critical engagements, cinematic scenes that alternate with crisp essays about the mindless way the war began, the reckless way it was managed and the fruitless way it ended.
One cannot read Halberstam’s book without being reminded, on virtually every page, of the grave situations that face soldiers and civilians in Iraq right now (or of the great loss we suffered when Halberstam died in a tragic car accident a few days after finishing this book).
But to me, the most compelling part of The Coldest Winter is the way in which it reveals what Halberstam calls “the nobility of ordinary people” (660) in the crucible of war. The Coldest Winter’s gripping narratives of battle scenes and soldiers’ struggles are classics of military history. His re-telling of the battle at Chipyongni in February 1951 (514-86) deftly assesses both the origins (strategic necessity) and extraordinary costs (the lethal stalemate that soon set in) of a major victory for U.N. forces in the central corridor of Korea. Halberstam easily moves from generals (the American Matt Ridgway and his Chinese counterpart, marshal Peng Duhai; the charismatic Frenchman Ralph Monchar) to captains (Stanley Tyrrell, leader of a successful rescue that led the survivors to make a banner proclaiming, “when in peril, send for Tyrrell”, 530) to sergeants (Ed Hendricks, who recalled stacking frozen bodies into trucks like “a giant jigsaw puzzle” after the deadly winter battle, 585) as the battle plays out.
Comparable stories of the horror and heroism of the war in Iraq are already in popular circulation; consider the new HBO mini-series (premiering this Sunday, July 13) based on journalist Evan Wright's Generation Kill (Putnam, 2004).
Halberstam’s doggedness in pursuing sources is an inspiration (especially for me, since I see the inside of an archive, or sit across from an interviewee, all too rarely). The brilliant section on Chipyongni relies heavily on an interview with Paul McGee, one of many veterans Halberstam tracked down. In his author’s note, Halberstam reports that he almost called off his visit to McGee, who was an unsung Army lieutenant in the battle, because of fatigue, bad weather, and inconvenience. But he decided to keep the appointment and was rewarded with perhaps the most remarkable interview that appears in the book (“it was as if he had been waiting for me to come by for fifty-five years, and he remembered everything as if it was yesterday”, 661). Halberstam even used McGee’s thoughts on the duty of a soldier to close out his epilogue.
As Laurel Thatcher Ulrich once said in a Penn lecture to aspiring historians, serendipity doesn’t strike in the shower. (But note you no longer have to go to the Maine State Library, as Ulrich did, to find Martha Ballard ’s diary; it’s here.)

(Cross-posted at Legal History Blog)

Cold War interrogations

The New York Times has alleged that U.S. interrogators lifted techniques from the late Albert D. Biderman's descriptions of Chinese Communist interrogations of Americans in the 1950's. Biderman was one of many social scientists employed by the Department of Defense to fight the Cold War's intellectual and political battles; for the larger context, see Ron Robin, The Making of the Cold War Enemy (Princeton University Press, 2001). Biderman's studies of Korean War POW's, especially March to Calumny: The Story of American POW's in the Korean War (MacMillan, 1963), and the interrogations they endured provided a critical corrective to earlier reports that had blamed U.S. prisoners for failing to resist Communist indoctrination. He argued convincingly that the torture and deprivation to which POW's were subjected, not their weaknesses compared to soldiers past, was responsible for their cooperation with their communist captors.
The 1957 Biderman article that was apparently used as a training document for contemporary interrogations was delivered at the New York Academy of Medicine in November, 1956 and later published in a medical journal. It relates how prisoners had to be trained by their Chinese captors before they could even understand what was expected of them, and that POW's only gradually became adept at concocting stories to fit "the wild but inalterable preconceptions" of their captors about the United States (622). (credit for photo of American POW's in Korea, under Chinese guard)
Consistent with his other work, Biderman in this article focuses on the nature of resistance to coercive techniques rather than on their utility. He wrote in counterpoint to journalists like the late Eugene Kinkead, whose widely read account Every War But One (W.W. Norton, 1959) castigated Korean War POW's for collaborating with their Communist interrogators. Biderman prepared a chart of interrogation methods to help explain the difficulty of answering the question he was most frequently asked (623): why did some prisoners comply while others did not? Not surprisingly, he fails to answer directly, but he does conclude that "resistance was the dominant ingredient" in prisoners' responses to coercive interrogation (625).
Biderman's article was intended to promote a better understanding of prisoner resistance, not to provide a list of interrogation techniques. The chart that was used for contemporary military training was but a minor piece of a major military sociologist's work.

(Cross-posted at Legal History Blog)

Early American military history & laws of war

(This month I'm guesting at Legal History Blog, and will be sharing my posts with IntLawGrrls readers. Here's the 1st:)

With the rise (and fall?) of military commissions, cases involving military law and authority have become part of law-school courses involving many aspects of U.S. law, especially constitutional law and criminal law and procedure. But the new, and old, military commission cases are but a small story in the larger narratives of war in legal history.

John Grenier's award-winning work on early American military history deserves attention from those interested in the evolution of the law of war and in U.S. theory and practice regarding armed conflict and humanitarian concerns. A lieutenant colonel in the U.S. Air Force, Grenier has written widely on military strategy and tactics in the colonial period and the early republic. His first book, The First Way of War: American War Making on the Frontier, 1607-1814 (Cambridge University Press, 2005) documents the use -- and effectiveness -- of extreme violence against non-combatants; his second, The Far Reaches of Empire: War in Nova Scotia, 1710-1760 (Universityof Oklahoma Press 2008), extends the analysis to reveal how counterinsurgency and brutality characterized the Anglo-American struggle for North America. University of Michigan historian John Shy considers Grenier's The First Way of War worthy of a place "on the short shelf of essential books in U.S. military history", praise echoed by other scholars who find Grenier's study a compelling look at how terror and violence have always been part of American war-making.

(Cross-posted at Legal History Blog)

IntLawGrrls on the move

Delighted to announce the good fortunes of a number of IntLawGrrls. In alphabetical order, 'Grrls who're set to begin new academic positions this fall are:

Fiona de Londras
Lecturer in Law, Faculty of Law, University College Dublin, Ireland. Fiona (right), a human rights and terrorism specialist who's finishing Ph.D. work this semester, will be moving from her current post at University College Cork.

Stephanie Farrior
Professor of Law and Director of International Law and Comparative Law Programs, Vermont Law School, South Royalton. A leading human rights scholar, Stephanie (right) is the former Legal Director and general counsel of Amnesty International, the London-based NGO. She'll be moving from the Dickinson School of Law, Pennsylvania State University.

Elizabeth Hillman
Professor of Law, University of California, Hastings College of the Law, San Francisco, where's she's been a Visiting Professor this year. Beth (left) is a scholar of American military law and history (a subject in which she's earned a Ph.D.), with emphasis on definition and prosecution of military crime and the impact of gender and sexuality on military culture; her most recent book is the coauthored Military Justice: Cases and Materials (on which we posted here). She'll be moving from Rutgers University School of Law, Camden, New Jersey.

Hari M. Osofsky
Associate Professor of Law, Washington and Lee University School of Law, Lexington, Virginia. Hari (left), who focuses her scholarship on issues of climate change litigation, as well as law and geography (a subject on which she's working toward a Ph.D.), will be moving from the University of Oregon.

Heartfelt congratulations to all!