On December 19

On this day in ...

... 1966, the 2 international covenants, intended to make obligatory and enforceable the promises made decades earlier in the Universal Declaration of Human Rights, were opened for signature by the U.N. General Assembly. The International Covenant on Economic, Social, and Cultural Rights was the 1st to enter into force, on January 3, 1976. The International Covenant on Civil and Political Rights followed by a couple months, entering into force on March 23, 1976.

... 1915, Édith Gassion was born in Paris to a father who was a street acrobat and a mother who aspired to be a cabaret singer. Often she "was left in the care of her Algerian grandmother, a Kabyle woman named Aïcha"; when her father left to fight in World War I, she "was left to her own devices, and generally ran wild with other children in the neighbourhood." After the war she and her father both worked as street entertainers; eventually she "was plucked off the streets, thrown into a chic little black dress and made resident singer of Le Gerny's, one of the most elegant cabarets on the Champs Elysées." Adopting a stage surname that means "sparrow," Édith Piaf went on to become one of France's most famous singers. During World War II she used her entertainers' access to Occupation officers in order to aided the French Resistance. In this video clip, she expresses her nonregrets in one of her signature songs, Non, je ne regrette rien:

The Will of the People: The Right to Vote in the U.S. Elections

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
--Article 21(3), Universal Declaration of Human Rights (1948)

Miss Lou already cast her (my) vote for Obama-Biden in the historic U.S. presidential election (IntlawGrrls series link). Here’s hoping the following information will be helpful to other voters or right to vote advocates out there.

When to Vote:

Tuesday, November 4, 2008, or before if your state allows early voting. Vote as early in the day as possible, but VOTE even if you have to wait until later in the day. Don't believe rumors and unofficial polls; make your vote count.
Where to Vote:

Google Map © and other on-line sites now have dedicated pages that can locate and direct you to local voting stations.

How to Vote:
►The National Association of Secretaries of State maintains information on state requirements (linked here and below).
►Regular Ballot (make sure you understand all instructions and ask a poll worker if you don’t—no “hanging chads”)
►Absentee Ballot (if you couldn’t make it to the polls)
►Provisional Ballot (if your registration or eligibility to vote is challenged, insist on casting a provisional ballot)
►Accessible Ballot (there should be at least one accessible, private voting machine available for you at the polling place, or other provisions should be made for accessible private voting; if you need assistance, bring someone with you, or request information from a poll worker). See resource list below for disability access hotlines. (A news story about a blind voter's experience is linked here).
Old School
On-line political networking, blogs, and information sites have revolutionized the campaign and election process. For example, Twitter Vote Report allows users to send real-time updates on voting lines and other issues at the polls. And check out IntLawGrrls on Election Day, when some Grrls plan to post updates from their polling places.
But “old school” methods are still important.
►After coordinating with campaign workers, travel with others to swing states to get out the vote by making phone calls, and monitoring the election process.
►Make sure friends, relatives, and neighbors have transportation to the polls.
►Lines may be long, so bring water, reading material, a fully-charged cell phone, and a positive attitude. A folding chair or two in the trunk couldn’t hurt.
►Allow a person who’s not well to go ahead of you in line (Miss Lou shouldn’t have to say this, but she saw some elderly folks waiting in the back of those long early voting lines who should have been at the front—‘nuff said).
►Pay attention to state rules about “electioneering” at polling places (i.e., watch what you wear and be prepared to cover campaign t-shirts or to put campaign buttons away as you near the polling place).
►Know your rights. Since voter eligibility varies from state to state and there are already attempts to purge valid voters, check official websites or the campaign website for rules. Ask poll workers to double-check for your name. Insist on a provisional ballot if there’s any doubt.
►Bring a photo i.d. if you have one, but if you don’t, don’t let that deter you from voting. If challenged, ask for a provisional ballot.
►If you are not allowed to vote for illegal or illegitimate reasons, complain to the campaign and to local, national, and even international officials.
And Why:
Even the “undecided” must know by now that this is a history making election. It is an incredibly important moment on every level: the economy (and its relationship to food, housing, education, health care, jobs, and retirement); our civil rights, civil liberties, and other constitutional protections; respect for, and compliance with, our international legal and moral obligations (including human rights and laws on peace, trade, security, and the environment), and much, much more…
Still, my favorite reason to vote is to honor people. By voting, we remember the generations of African-Americans and women previously prohibited from doing so. We recognize the struggles of those who must wait in voting lines for many hours in other countries even under threat of violence. Our voting also honors the over-100 crowd, such as Sister Cecilia Gaudette, the 106 year old nun and 109 year old Amanda Jones (who remembers having to pay poll taxes). They each voted for Obama recently. My own grandmother, “Miss Lou,” voted right up until her passing at nearly 103. She would not put up with any excuses from this Miss Lou either (who is slightly younger).
A List: Voter Access and Voter Protection
►American Civil Liberties Union, “Voter Protection”
►Federal Elections Commission, “Help America Vote Act of 2004” (HAVA)
►League of Women Voters (comprehensive general information site)
►National Association for the Advancement of Colored People-Legal Defense and Educational Fund (NAACP-LDF), “Voter Protection”
►National Association of Secretaries of State, 2008 General Election Information (includes Election day polling hours by state)

►National Federation of the Blind, Project VIP (Voting with Independence and Privacy)
“Voting, Accessibility, and the Law”
Hotline (to help resolve access problems for blind voters at polling stations and to provide technical assistance to poll workers)
1-877-632-1940 (7 AM - 10 PM EST, Tuesday, November 4, 2008). Organizers request that voters call directly from the polling place rather than trying to resolve issues later.
►Lawyers and law students interested in elections monitoring in battleground states should contact campaigns directly or link up with the many social networking groups organizing such efforts.
The Right to Vote in International Legal Perspective
►Office for Democratic Institutions and Human Rights, Office for Security and Co-operation in Europe (OSCE) 2008 Elections Monitoring Mission to the USA (includes the mission’s mandate and contact information)
►OSCE Final Report on 2004 US Elections (providing a tepid response to concerns raised by African-Americans and other minorities with regard to allegations of voter suppression and intimidation)
►University of Minnesota Human Rights Law Library, “Study Guide on the International Right to Vote”
The need for serious voting process reform in the U.S. will have to wait for another post by another IntLawGrrl on another day. Special thanks to IntLawGrrls Diane Marie Amann and Stephanie Farrior, and to Bob Hachey, President of the Bay State Council of the Blind (an affiliate of the American Council of the Blind) for list-serv alerts on disability voting. Finally, a televised interview with elections law expert Janai Nelson, Professor of Law at St. John’s University School of Law (photo above right), was quite helpful. Disclaimer: This post reflects my own views, of course. Being listed in this post does not necessarily imply an individual’s or organization’s endorsement of any candidate or political party.

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;(c) To have access, on general terms of equality, to public service in his country.
--Article 25, International Covenant on Civil and Political Rights (1976)

Human rights for hostes humanis?

Since the time of Grotius, a pirate has been considered to be hostis humanis generis, an enemy of mankind.

So write Ilias Bantekas and Susan Nash in their book International Criminal Law (2003). As a global enemy, the pirate was subject to prosecution in any country that managed to exercise jurisdiction over him -- or, in the case of pirates like my IntLawGrrls transnational foremother Grace O'Malley -- her. (credit)
Thus it's a bit of a surprise to read that Britain, the country that once claimed to rule the waves, is shirking from seizure of the 21st C. pirates about whom IntLawGrrl Naomi Norberg posted earlier this month. London's Sunday Times of London reported that the Foreign Office has instructed the Royal Navy "not to detain pirates because doing so may breach their human rights." The Times' Marie Woolf reports of the further concern regarding the "risk that captured pirates could claim asylum in Britain." This fear of inability to return the captives likely stems from Britain's non-refoulement obligations, explicit in treaty provisions such as Article 33 of the Convention relating to the Status of Refugees and Article 3 of the Convention Against Torture, and deemed implicit in provisions such as Article 3 of the European Convention on Human Rights and Article 7 of the International Covenant on Civil and Political Rights:

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

Not all Britons share this view. The Times quoted Julian Brazier, a Conservative Member of Parliament:

'These people commit horrendous offences. The solution is not to turn a blind eye but to turn them over to the local authorities. The convention on human rights quite rightly doesn’t cover the high seas. It’s a pathetic indictment of what our legal system has come to.'

No doubt the notion that even hostes humanis have human rights also will trouble those who would use the old rule of free-rein-to-fight-pirates as a template for today's treatment of persons caught up in what the Bush Administration calls its "Global War on Terror."

(Cross-posted at Slate's Convictions blog. Subsequently, co-bloggers Benjamin Wittes posted this response, and Deborah Pearlstein this reply. Thanks to Berkeley Law student Lindsay M. Harris for the head's up on the Times story.)

"Human rights isn't a zero-sum game"

IntLawGrrls readers may recall last Saturday's post regarding the U.N. General Assembly speech in which Pope Benedict XVI endorsed the promotion of human rights. A key element of was the pope's support for the view that civil and political rights are indivisible from economic, social, and cultural rights.
Cross-posting of the report at Slate's Convictions drew response from my fellow blogger Eric Posner, a University of Chicago law professor whose scholarship often concerns international law. His post, entitled China, Human Rights Champion?, began:

If Diane and the pope are right that we shouldn't privilege civil and political rights over social, economic, and cultural rights, and maybe they are right, then we should give credit where credit is due, and crown China the human rights champion of the last thirty years.

It concluded:

We needn't declare a winner; but out of respect for China's achievement, we should at least let it relay its Olympic torch in peace.

FWIW, here, in full, is how I replied:

Human rights isn't a zero-sum game

Eric, nothing that the pope said Friday favored one set of rights over another. Indeed, as my post stated, his speech to the U.N. General Assembly included "a tacit reprimand to those who would privilege civil and political rights over economic, social, and cultural rights -- or vice versa." (emphasis added) The point I'd intended to underscore was that the pope had reaffirmed the indivisibility of both sets of rights, the civil/political, on the one hand, and the economic/social/cultural, on the other. Indivisibility was inherent in the 1948 Universal Declaration of Human Rights, but frayed when Cold War geopolitics pushed the U.N. Human Rights Commission to separate the 2 sets as it began the process of drafting treaties designed to make binding all those rights that states had endorsed in the nonbinding Declaration. That separation, which seemed essential at the height of the Cold War, may be less so today: 160 countries are full members of the 1977 International Covenant on Civil and Political Rights, while 157 countries are full members of the 1977 International Covenant on Economic, Social, and Cultural Rights. That means that 3/4 of all the United Nations' member states are firmly in each Convenant's camp. Vestiges of Cold War concerns may be found, however, in the fact that the United States is not party to the latter Covenant and China is not party to the former.
As for China: application of the concept of indivisibility means that China is no more a "champion" of human rights than any other state. The role that the Chinese state has played in alleviating poverty deserves attention. Indeed, how each country addresses the basic needs of persons within its jurisdiction deserves note, as I've argued with regard to the United States in a forthcoming essay just posted at SSRN. But the costs of such programs also must be assessed, respecting matters as wide-ranging as the health problems and the repressions of civil liberties that may result from economic development at all costs. (Here, too, insert a "vice versa.")
On 2 points, it seems, we agree. 1st: Athletes honored to carry the torch a bit of the way toward the 2008 Olympics should not have to fear anger and assault as they run through the streets of their home country. 2d: Comprehensive, critical comparison of the nature and extent of states' programs to protect human rights rarely will yield a clear "winner."

To Change or Not to Change . . .

. . . one's last name: that is the question asked by almost every woman, but by very few men, upon marriage. Prof. Elizabeth Emens of Columbia Law School (pictured at right) decries this situation in her recent article, Changing Name Changing: Framing Rules and the Future of Marital Names. Carefully describing the scope of the problem and critiquing current social defaults, Emens suggests an alternative to the "Mrs. His Name" convention -- hyphenation by both spouses, and then "biphenation" by the next generation. As a dual hyphenator myself, it's hard to claim impartiality, but I find her arguments thoughtful and compelling. That's all well and good, you might say, but what does this have to do with international law? Emens has tracked down a 2002 decision of the UN Human Rights Committee, Muller and Englehard v. Namibia, finding a violation of Article 26 (prohibiting gender discrimination) of the International Covenant on Civil and Political Rights where a man was subjected to different and substantially more burdensome procedures to change his name after marriage than a woman would be. I found this particularly interesting, given that the clerk who issued our marriage license right here in Media, Pennsylvania, informed us that while I could change my last name as a matter of course, my husband would have to obtain a court order to do so. It's not clear to me whether this actually reflects Pennsylvania law or is a manifestation of what Emens labels "desk-clerk law" -- misinformation provided by officials -- but either way, it's a shame we didn't think to call in the Human Rights Committee. Emens' article also begs for a comparative study of administrative approaches to name changing around the globe. For example, at least under the apartheid government, in South Africa, after a woman was married, her last name was automatically changed to her husband's last name in all official records whether or not she wanted the change to be made. Any other disturbing or inspiring examples out there? (photo credit above left to Matt Brett).

On December 16, ...

... 1901, a daughter was born in Philadelphia to Edward and Emily Fogg Mead. An economics professor at the University of Pennsylvania, the father told his daughter, "It's a pity you aren't a boy; you'd have gone far." In 1928, the daughter published Coming of Age in Samoa; she's pictured at left during her field work. In 1929, she earned her Ph.D. from Columbia University and, as Dr. Margaret Mead, went on to become 1 of the most influential anthropologists of her century. Mead died from cancer in 1978, just a few years after serving as the 2d woman ever to lead the American Association for the Advancement of Science.
... 1966, the U.N. General Assembly adopted 2 treaties designed to make enforceable the 1948 Universal Declaration of Human Rights. They were the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The latter treaty entered into force on January 3, 1976; the former a few months later, on March 23. Though the rights that the UDHR set forth as one were divided on the premise, in part, that not all states would subscribe to both groups of rights, today nearly all countries have ratified both treaties. An exception is the United States, which signed both but only ratified the ICCPR, and then only in 1992. A longtime holdout, Cuba, has just announced that it soon will sign both covenants, for reasons that a Cuban newspaper details here.

An armchair spectator scores Gitmo, round 3

Having likened the 3 Guantánamo matters argued before the U.S. Supreme Court to rounds of a boxing bout, might as well extend the sports metaphor long enough to score yesterday's 3d round, recorded in this transcript and this audio. (Sampling of others' critiques here, here, here, here.)

Award for Keeping a Glove in the Ring While Hanging in the Corner
This one goes to the U.S. Constitution.
Throughout nearly 1-1/2 hours or argument only a few explicit mentions were made of the Suspension Clause (none citing its precise text), which greatly narrows governmental power to suspend the writ of habeas corpus. There's only 1 mention, at p. 66, of Johnson v. Eisentrager, a 1950 judgment that accorded virtually no constitutional protection for noncitizens abroad, a judgment that the Court in the 1st Gitmo case, Rasul v. Bush (2004), did not praise but did not overrule, either. (SCOTUSblog's Lyle Denniston asks: "Can constitutional issues be finessed?")

Most Ignored Relevant Body of Law
Human rights.
Particularly ignored yet relevant were human rights norms that the United States is obligated to uphold by dint of its ratification of the International Covenant on Civil and Political Rights. Even assuming arguendo that international humanitarian law like that codified in the Geneva Conventions does not apply fully to all of these detainees, human rights law does. It requires that each state afford each human being minimum protections, among them freedom from unjustified and unreviewable detention. It has an extraterritorial component that, as I've written, is broader than that which the U.S. government says is applicable under U.S. law. It provides concrete, actual-fact-based examples of something that troubled Chief Justice John G. Roberts, Jr. (right; see p. 17); that is, how to adjudicate a standard based on "jurisdiction and control," rather than "sovereignty." And it rejects the notion that severe deprivations of rights may occur without any recourse to remedy. Those principles would aid understanding of U.S. constitutional questions at play in this case. The failure to mention them set the scene for the next 2 items:

Missed Opportunity
This armchair spectator discerned something that perhaps was not apparent in the real time of argument: Justices on all sides struggled with the matter of timing. Justice John Paul Stevens (left) was among those who raised the issue with the government's attorney, Solicitor General Paul D. Clement:

JUSTICE STEVENS: Isn't the main issue the fact that it has taken six years to have the issue resolved -- ... They say they have been unlawfully detained for six years from the beginning. And isn't that delay relevant to the question of whether they have been provided such a wonderful set of procedures?
GENERAL CLEMENT: Well, Justice Stevens, I think the delay is going to be relevant to whether or not courts should expedite hearings, and the like. But I don't think it should cloud the basic constitutional question before the Court.

(p. 58) Detainees' attorney, Seth P. Waxman, had made early mention of that fact that petitioners have endured detention without charge for 6 years now, and he did decline Chief Justice Roberts' invitation to concede that the length of detention did not matter to a habeas court. (pp. 7-8)
Yet in these exchanges and in Justices' other mentions of the timing issue, neither attorney cited authority for his position; a listener plausibly might've thought that reminders of timing sound in equity and not in law.
That, however, is not the case. Limiting the length of deprivation of right to the precise time period of the emergency that provoked deprivation is a core concept of the law of derogation, the human rights doctrine that allows temporary, carefully circumscribed suspensions of civil liberties. (It's detailed here; posts here.) In this body of law timing is not an emotional makeweight; it is, rather, an essential element in determination of the justifiability of the suspension.
One needn't even venture abroad to make the same point, for the importance of timing is evident in recent Supreme Court decisions that have endeavored to tailor governmental measures to fit the governmental interest at stake. Consider, for example, the Court's declaration, in section III(B) of Grutter v. Bollinger: Affirmative action plans designed to promote racial and ethnic diversity may continue, but only for the next quarter-century, when, in the Court's estimation, the societal exigency that compels them will have abated. Consider too the words with which Justice Anthony M. Kennedy (right) distinguished Eisentrager at page 4 of his concurrence in Rasul v. Bush:

Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

The relevance of this passage to the current dispute seems patent, as does the necessity of either side to secure the vote of Justice Kennedy. The frequency with which other Justices discussed timing suggests that they understand this. The failure to address the law surrounding the issue of timing is thus curious as well as unfortunate.

Precision Counts
Invoking a phrase that is common among opponents of the government's post-9/11 detention program, Waxman said of Guantánamo:

If our law doesn't apply, it is a law-free zone.

(p. 14) Unfortunately, there was no opportunity to build upon this rhetorical flourish. As the paragraph on "Most Ignored" demonstrates, U.S. law is not the only law at play. Stated precisely: The United States is the only entity with any ability to exercise its will at Guantánamo. Thus if the Court should agree with the court below that habeas jurisdiction does not extend to Guantánamo, it would endorse the establishment of a zone that, though yet constrained by (human rights) law, is free from sanctions for violation of that law. This is a distinction that makes a difference.

Best Hypothetical
Winner here is Justice Stephen G. Breyer (left).
He uncovered an instance in which the curtailment of judicial review might well result in a detainee's claim having no judicial review -- a result that undercuts claims that the curtailed Combatant Status Review Tribunal (CSRT) process is an adequate substitute for the writ of habeas corpus:

JUSTICE BREYER: [S]uppose that you are from Bosnia, and you are held for six years in Guantanamo, and the charge is that you helped Al-Qaeda, and you had your hearing before the CSRT.
And now you go to the D.C. Circuit, and here is what you say: The CSRT is all wrong. Their procedures are terrible. But Judge, for purposes of argument, I concede those procedures are wonderful, and I also conclude it reached a perfectly good result.
Okay? So you concede it for argument's sake. But what you want to say is: Judge, I don't care how good those procedures are. I'm from Bosnia. I've been here six years. The Constitution of the United States does not give anyone the right to hold me six years in Guantanamo without either charging me or releasing me, in the absence of some special procedure in Congress for preventive detention.
That's the argument I want to make. I don't see anything in this CSRT provision that permits me to make that argument. So I'm asking you: Where can you make that argument?
GENERAL CLEMENT: I'm not sure that he could make that argument.
JUSTICE BREYER: Exactly. ... If he cannot make that argument, how does this become an equivalent to habeas, since that happens to be the argument that a large number of these 305 people would like to make? (pp. 38-39)

Best Use of Comparative Law
Breyer, again.
Revisiting the colloquy above, he challenged Clement's claim that the unavailability of a U.S. forum for adjudicating the hypothetical question did not matter, for the reason that England would not grant such a forum, either:

JUSTICE BREYER: ... [Y]ou said well, neither could they in England. Well, that I wonder. .... After all, England doesn't have a written constitution. So it is hardly surprising if they concede everything away in England, they're not going to be able to make any argument. ... (p. 47)

Best Advocate on Behalf of His or Her Position
Hands down, this one goes to various Justices.
Several put forward their points of view clearly and concisely. None feared to challenge, and their challenges laid bare weaknesses in opponents' positions. As in prior rounds, Justices showed themselves prepared, engaged, and able to buck and weave within the complex legal ring that has resulted from the post-9/11 actions of the Court, of President George W. Bush, and of Congress.
Examples include:
Justice Antonin Scalia's sparring with detainees' attorney over the long history of habeas corpus. It began with a statement of detainees' position that recalled the declaration of former Attorney General Alberto Gonzales that there is no right to habeas:

JUSTICE SCALIA: ... Your assertion here is that there is a common law constitutional right of habeas corpus that does not depend upon any statute.
Do you have a single case in the 220 years of our country or, for that matter, in the five centuries of the English empire in which habeas was granted to an alien in a territory that was not under the sovereign control of either the United States or England.(p. 10)

Later supplying a detailed answer to the question: Justice Breyer. (pp. 24-26)
The steering by Justice David H. Souter (left) that led detainees' attorney away from what might have seemed a concession that Congress could tinker with its new-minted mechanisms a little and thus solve procedural fairness concerns:

JUSTICE SOUTER: ... [T]he Guantanamo detainees ... wouldn't they all run into the problem of -- the neutrality problem that you raised? The commanding general, the Secretary of Defense, in effect, have already said these people belong where they are. Wouldn't that make it impossible, really, at this stage of the game to substitute a military procedure?
MR. WAXMAN: I certainly think so. ... (p. 23)

Justice Souter again, along with Justice Stevens, jabbing at the government's contention that detainees' "status has been reviewed by a tribunal modeled on Army Regulation 190-8," which implements the 3d Geneva Convention as U.S. law. Clement said that in affording a "personal representative" to detainees, the new plan goes farther than the old; at this, the 2 Justices secured Clement's concessions that the "personal representative" does not act as counsel for the detainee; indeed, he is obliged to report to the government any "material intelligence information" he might learn while talking with the detainee. (pp. 32-34)
Justice Souter, joined this time by Justice Ruth Bader Ginsburg (right), also posed a challenge to a government position that long and loyal readers will recognize as my own pet peeve. Echoing a passage in their separate opinion in Hamdi v. Rumsfeld (2004) (section III(C)), they said:

JUSTICE SOUTER: ... I didn't want to get into the prisoner of war point. But if you did want to get into it, the problem with your prisoner of war point is the United States is not treating them as prisoners of war. They have not been adjudicated prisoners of war, or otherwise, under the Third Geneva Convention, and that argument on the Government's part is entirely circular.
GENERAL CLEMENT: With respect, Justice Souter ---
JUSTICE GINSBURG: General Clement, I remember in a prior hearing about Guantanamo that the Government was taking the position firmly that these detainees were not prisoners of war and, therefore, were not entitled to the protection of the Geneva conventions.
So if the Government is maintaining that position, these people are not prisoners of war, then the treatment of a prisoner of war is not relevant. (pp. 41-42)

When Clement tried to give elasticity to the concept of detention-during-wartime advanced by the plurality in Hamdi, there was this:

GENERAL CLEMENT: ... hold them as we would hold anybody else who was captured as preventative detention.
JUSTICE STEVENS: For the duration of hostilities, if you can show that they are enemies.
GENERAL CLEMENT: Well, I think if we can show that they were enemy combatants, that's exactly right.

(p. 51) The requirements of that "showing" are at the core of the case, and so the desired elasticity was snapped back.

Keeping Eyes on the Prize
This goes to Justice Ginsburg.
Throughout the argument she worked, sometimes with other Justices yet without much success, to get attorneys to address the threshold issue in the case. One such occasion:

JUSTICE GINSBURG: The D.C. Circuit ... said that the act[ion] that these people are trying to bring [--] habeas [--] doesn't exist. And it seems to me the only question before us is whether there is jurisdiction in the court of appeals to decide that threshold issue.

(p. 67) It remains to be seen whether the Court as a whole will train its focus on that preliminary issue or, as the argument itself did, go to the ropes on the myriad other issues in this litigation.

A Question on Habeas Discussion...

Further to the robust dialogue of Fiona and Naomi, I was wondering what we do about the express provisions of derogation in the ICCPR (fairly well mirrored by the European Convention), notwithstanding the more recent discourse presented in the posts recently. Is it being asserted that the new discourse is now "customary international law" overriding the treaty provisions, e.g., Art. 9 of the ICCPR is not one of the articles a state is prohibited from suspending in times of emergency? I quote both Arts. 4 and 9 of the ICCPR below, just as a quick FYI.

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

More on Habeas Corpus and Suspected Terrorist Detainees

I wanted to weigh in on Naomi’s post on habeas corpus in times of emergency and reflect a little on the status of the writ in international human rights law and on the pragmatic reasons for ensuring habeas corpus in line with international legal standards.

First of all it appears that habeas corpus is, as Naomi rightly pointed out, non-derogable in at least the ICCPR and Inter-American systems. Significantly, however, the Council of Europe – whose European Court of Human Rights has always held habeas to be important but never to be non-derogable – has recently indicated that habeas may be moving towards non-derogability under the ECHR system as well. In its 17th Report on its General Activities, the European Committee for the Prevention of Torture opined that

It is disturbing, at the beginning of the 21st century, to be obliged to recall basic principles long enshrined in both national and international law and which one had assumed would be inviolate. Deprivation of liberty must be based upon grounds and procedures established by law, be formally recorded, and be open to review by a judicial authority. Further, all persons deprived of their liberty by a public authority should be held in facilities which are officially recognised for this purpose and placed under the responsibility of a clearly identifiable entity. The practice of secret detention constitutes a complete repudiation of these principles.

Secret detention can certainly be considered to amount in itself to a form of ill-treatment, both for the person detained and for members of his or her family. Further, the removal of fundamental safeguards which secret detention entails - the lack of judicial control or of any other form of oversight by an external authority (such as the ICRC) and the absence of guarantees such as access to a lawyer - inevitably heightens the risk of resort to ill-treatment. And in the light of the information now in the public domain, there can be little doubt that the interrogation techniques applied in the CIA-run facilities concerned have led to violations of the prohibition of torture and inhuman or degrading treatment.

In my forthcoming article in the Journal of Conflict and Security Law (advance access available here) I outline the international legal protections of habeas corpus (or an adequate alternative) and conclude – as Naomi has done in her post – that it is generally non-derogable. Indeed – although the article does not consider this element of the international legal standards – the writ’s increasingly close connection to the prohibition on torture might suggest a possible further elevation of the right to challenge the lawfulness of one’s detention to a jus cogens standard in the future.

The non-derogability of habeas corpus, of course, puts the US Constitution in conflict with international standards because it allows for the suspension of the writ in limited circumstances, however where there has been no such suspension (and the MCA certainly constitute a suspension within the meaning of Article I(9)(A)) the international standards certainly militate towards a universal guarantee of habeas (or adequate alternative) regardless of citizenship, suspected-terrorist status, and, indeed, the location of one’s detention. (And this is my argument in a different, forthcoming article!).

When he suspended habeas corpus Abraham Lincoln – who is now so closely associated with ‘counter-terrorist’ policy in both the United States and (bizarrely) Pakistan – asked whether all the laws but one were to be upheld for the sake of habeas corpus, however the increasingly sophisticated understanding of the writ belies the simplicity of this attitude. Allowing detainees to challenge the lawfulness of their detention does not mean that suspected terrorists could not and should not be detained (even if, perhaps, there is insufficient evidence to charge them) or that criminality (including terrorism) can not be rigorously countered. It simply means that the risk of (a) mistreatment of those detained, and (b) misidentification of people for detention is minimized.

Those who support the provision of habeas rights to suspected terrorist detainees in the ‘War on Terrorism’ are often presented as idealistic civil libertarians who do not understand the risks associated with sophisticated globalised terrorism. This is as much as a simplification of our camp as is the presentation of the current US Administration as Machiavellian power-grabbers. The position that I hold, certainly, is a pragmatic one: security may require the detention of individuals but the security-liberty tradeoff only allows for this if there are sufficient safeguards to ensure that only genuine risks are detained (and the release of hundreds of people, including former Guantanamo detainees shows this has not been the case), if there is a mechanism to ensure that status is frequently and effectively assessed (and the impressive Denbeaux studies show that the CSRT do not fulfill this), and if the fundamental rights of those in detention are respected remembering that the detention is supposed to be protective rather than punitive.

The availability of the writ of habeas corpus is as close as the common law world knows to fulfilling these three pragmatic and fundamental requirements.

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.

On Musharraf on Lincoln

As discussed in Naomi's excellent post above, Gen. Pervez Musharraf has called upon the spirit of Abraham Lincoln in an effort to justify declaring a state of emergency in Pakistan.
The invocation of Lincoln (right), the President who governed America at a time when its States were not United -- who saw a 4-year Civil War to its end in 1865 -- has taken the blogosphere by storm. With a hat tip to New York Times blogger Robert Mackey, that segment of Musharraf's speech is available in video above. Full text of the speech is here; here's what Musharraf (below) said about Lincoln:

I would at this time venture to read out an excerpt of President Abraham Lincoln, specially to all my listeners in the United States. As an idealist, Abraham Lincoln had one consuming passion during that time of crisis, and this was to preserve the Union… towards that end, he broke laws, he violated the Constitution, he usurped arbitrary power, he trampled individual liberties. His justification was necessity and explaining his sweeping violation of Constitutional limits he wrote in a letter in 1864, and I quote, 'My oath to preserve the Constitution imposed on me the duty of preserving by every indispensable means that government, that Nation of which the Constitution was the organic law. Was it possible to lose the Nation and yet preserve the Constitution?'

The transcript's from the post by Mackey, who also links to Lincoln's actual words.
What to say about all this?
1st, with regard to "emergency": Lincoln acted after a sizable portion of his country seceded from the Union, donned uniforms, and made war against Union fortresses within the seceded territories. The situation stands on a different plane from the political demonstrations and occasions of terrorist action that Pakistan's faced these last months. Musharraf's regime well have been under threat, given the awaiting decision on whether his re-election was valid, and the new in-country presence of a longtime political opponent, Benazir Bhutto (left), the woman who seeks once again to become the Pakistan's Prime Minister. But it's basic to the derogation rules Naomi discusses that the threat must be to the nation itself, and not simply to the state regime in power in that nation.
2d, with regard to Pakistan and post-9/11 United States: One senses that Musharraf invokes Lincoln because he cannot invoke Bush; that is, he looks to a U.S. President with unquestioned credibility as a source of justification. Yet even an analogy with President George W. Bush (right) would not well serve. The article of mine that Naomi so kindly cites (like my English-language article Guantánamo) questions whether, and if so, how long, the United States suffered such a threat post-9/11. It further criticizes the Bush Administration for acting as if there were a state of emergency yet refusing to discharge its obligations under the International Covenant on Civil and Political Rights. Those obligations:

-- Give precise and proper notice of what emergency measures it was taking (as Britain, incidentally, did); and
-- Tailor those measures precisely to the threat posed, both by limiting suspensions of liberty to the absolute minimum required and by ending all such suspensions as soon as the political climate
permitted.

3d, with regard to the tailoring, or proportionality, of measures by Musharraf, Bush, and Lincoln: In the U.S. periods under review there was, as there now appears to be in Pakistan, neither any wholesale suspension of the Constitution nor any dismissal of the Supreme Court. It is true that there were in the United States curtailments of recourse to habeas corpus. As we've posted, Lincoln's abrogation of the writ remains controversial to this day, and may well prove a point of discussion during the December 5 oral argument before the Supreme Court in the Boumediene challenge to Bush's Guantánamo detention policy. Yet in neither period did U.S. emergency measures go much further than that. It is true that Bush has sought to stave off judicial review of his measures, and in the Detainee Treatment Act and Military Commissions Act Congress has tried to helped him keep the courts at bay. Yet even when the U.S. judiciary brushed aside those efforts, as did the Supreme Court in Hamdan, neither political branch has suggested anything like shutting down the courts. Nor did Chief Justice Roger B. Taney's clash with Lincoln over habeas corpus result in dismissal of Taney (left) or any other member of the Court.
Try as he might, Musharraf can find no refuge in the words of American Presidents, present or past.

On October 5, ...

... 2007 (today), celebrate World Teachers' Day, a holiday close to the heart of us IntLawGrrls.
... 1977 (30 years ago today), the United States affixed its signature to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, both of which were opened for signature in 1966 with the intention that they would operate as instruments for the enforcement of rights guaranteed in the 1948 Universal Declaration of Human Rights. The United States became a full member of the ICCPR, which now has 160 states parties, in 1992. The ICESCR has 156 states parties, but the United States is not among them.
... 1943, U.S. Rep. Virginia Brown-Waite (R-N.Y.) was born in Albany, New York.

On June 8, ...

... 2007 (today), oceanophiles celebrate the 15th annual World Oceans Day. Proclaimed for the 1st time during the Earth Summit in Rio de Janeiro, the day is set aside to raise awareness of the importance of the oceans and the life within them. It is not yet a U.N.-declared day; devotees ask that you sign a petition to make it such here.
... 1992 (15 years ago today), the United States ratified the ICCPR, or International Covenant on Civil and Political Rights, albeit with reservations so extensive they led our colleague William A. Schabas to ask, in a 1995 article published at 21 Brooklyn J. Int'l L. 277, "Is the United States Still a Party?"
... 1970, U.S. Rep. Gabrielle Giffords (D-Ariz.) was born in Tucscon, Arizona.

Child LWOP update

A while back Nancy Ward wrote of her efforts to persuade California legislators to forbid sentencing of child offenders to life without parole. In California 227 youths are serving such sentences, 10% of the national juvenile LWOP population. Human rights law is contra: the sentences are flatly prohibited by Article 37(a) of the Covenant on the Rights of the Child, to which virtually all countries belong except the United States, and are incompatible with the juvenile corrections provisions of Articles 10 and 14 of the International Covenant on Civil and Political Rights, to which the United States does belong.
Yesterday the legislation, SB 999, was read on the floor of the Senate, where a 2/3 majority is needed. Organizers are urging all to lobby for an "aye" vote; details here.