Illinois outlaws death penalty

In Illinois, capital punishment is no more.
Today Governor Pat Quinn:
► Signed legislation abolishing the death penalty,
► Commuted all existing death sentences to life without parole, and
► Pledged to commute any death sentence levied before the law takes effect on July 1.
In his signing statement, Quinn said that he had:

concluded that our system of imposing the death penalty is inherently flawed. The evidence presented to me by former prosecutors and judges with decades of experience in the criminal justice system has convinced me that it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.
As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government.

Threatening government's legitimacy, he explained, was the troubling fact that since 1977, 20 persons condemned to Illinois' death row had been exonerated in postconviction innocence proceedings. It is that, more than anything, that today makes Illinois the 2d of the country's 5 most populous states to move into the abolitionist column. (By turning blue on the map below (credit), Illinois joins a Midwestern consensus that spreads over to Iowa and up to North Dakota and Michigan.) Said Quinn of the wrongful capital convictions:

To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.

He questioned claims that capital punishment has a deterrent effect, and further stated that

the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.

Quinn, a Catholic who made the announcement on Ash Wednesday, drew support from a quote the late Joseph Bernardin, long Cardinal of Chicago's archdiocese. He expressed thanks for guidance from others -- "prosecutors, judges, elected officials, religious leaders from around the world, families of murder victims, people on death row who were exonerated and ordinary citizens" -- whom he did not identify by name.
Names of at least 3 persons jump to the mind amid this fundamental change in the governance of this 'Grrl's birth state. Recently retired U.S. Supreme Court Justice John Paul Stevens, who often criticized the administration of capital punishment in appearances before lawyers in his native Chicago, and whose recent New York Review of Books essay made points echoed in Quinn's statement. Professor Larry Marshall, who spearheaded innocence cases during his long tenure at Northwestern University School of Law (from which Governor Quinn, Justice Stevens, my classmate Larry, and I all received J.D.s). And the late U.S. District Judge Prentice H. Marshall, who spoke against the death penalty at a commemoration of Haymarket I attended while clerking for him years ago. One imagines each would agree with the words with which the governor concluded today:

... I firmly believe that we are taking an important step forward in our history as Illinois joins the 15 other states and many nations of the world that have abolished the death penalty.

On January 31

On this day in ...
... 2006 (5 years ago today), Sandra Day O'Connor completed her last day as a Justice of the U.S. Supreme Court, nearly a quarter-century after she'd become the 1st woman to hold that position. It'd be an overstatement to say that O'Connor (right) "retired," however, for the former Justice has remained active. (photo credit) Among other things, she's: written the Senate to support CEDAW, the Convention on the Elimination of All Forms of Discrimination Against Women that the United States has signed but not ratified; campaigned for an end to the election of state judges; served on a task force on the International Criminal Court convened by the American Society of International Law; and interviewed Justice John Paul Stevens, her just-retired colleague, for Newsweek.

(Prior January 31 posts are here, here, and here.)

On December 12

On this day in ...
... 2000 (10 years ago today), 5 weeks after national balloting, the Supreme Court issued its decision in Bush v. Gore, holding Florida's vote recount a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, and thus making way for the January inauguration of former Texas Governor George W. Bush as the country's 43d President. (photo credit) Division on the Court was evident in these concluding lines of the dissent of Justice John Paul Stevens:

Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

(Prior December 12 posts are here, here, and here.)

'Nuff said

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

[C]apital punishment today is 'reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.' Instead, the death penalty promotes 'gratifications,' of 'professional and political users, of the mass media, and of its public audience.' ... [C]apital punishment derives 'its emotional power, its popular interest, and its perennial appeal' from five types of 'death penalty discourse.' They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. ... '[T]he American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.'

-- Retired U.S. Supreme Court Justice John Paul Stevens (right, credit), summarizing and quoting the conclusions drawn by New York University Professor David Garland in his just-published book, Peculiar Institution: America’s Death Penalty in an Age of Abolition.
In the same review, Stevens restated his own conclusion, which he had announced in his opinion in Baze v. Rees (2008), that

the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'

Elena Kagan confirmed

63-37.
Not quite the 98-0 by which the Senate, in the days before polarization, confirmed John Paul Stevens. But today's 63 Senate votes were more than enough so that Solicitor General Elena Kagan (left) now succeeds him as a Justice of the U.S. Supreme Court.
Echoing a theme addressed in our prior posts on Kagan's nomination, the Washington Post noted that she'll be America's 4th-ever woman Justice. Moreover,

Kagan joins Sotomayor and Justice Ruth Bader Ginsburg in the first ever bloc of three women serving on the court at the same time.

A good day for 'Grrls. And not a bad birthday-week present for the President who nominated 2 of the 4 women Justices, either.

Extraterritoriality in flux?

In a just-published ASIL Insight, our colleague Paul B. Stephan sees more than securities laws at stake in the recent U.S. Supreme Court trimming of extraterritoriality.

Stephan, both the John C. Jeffries, Jr., Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia, deftly detailed Justice Antonin Scalia's opinion for the 5-member majority in Morrison v. National Australia Bank Limited (June 24, 2010). (credit for below left photo) Other thought-provoking discussions of this decision were posted here, here, here, and here at Opinio Juris.

In Morrison, the Court affirmed dismissal of a lawsuit alleging civil fraud in violation of § 10(b) of the Securities and Exchange Act of 1934 and its implementing Rule 10b-5. The suit, to quote Stephan's Insight, "involved only foreign plaintiffs, securities issed by a foreign company, and transactions in those securities that took place exclusively in a foreign country." Scalia's opinion underscored that there is a presumption against extraterritoriality, one that requires "Congress to clearly indicate when it wanted its rules to apply to foreign conduct."

Stephan termed the decision "a firm and unambiguous rebuke" of the tendency by some lower courts to give securities laws greater extraterritorial reach. That pronouncement pretermits the contrary viewpoints of the 3 remaining Justices (Sonia Sotomayor did not participate): Stephen G. Breyer, in a separate opinion that suggested the suit yet might go forward under other federal statutes, concurred only in part, while John Paul Stevens and Ruth Bader Ginsburg concurred only in the judgment and not at in the majority's reasoning; indeed, their joint opinion opened with the declaration that they

would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades.

Nonetheless, the pronouncement is accurate as a matter of counting current Court noses.

As interesting as the description of the judgment is Stephan's additional observation. He rightly wrote that

one must wonder what Morrison implies about other statutes.

Particularly noted is the means by which noncitizen plaintiffs have sought relief in U.S. federal courts for torts committed in violation of the law of nations or U.S. treaties. That means, of course, is Alien Tort Statute (prior IntLawGrrls posts). Alien Tort cases have involved events in all corners of the earth. "The Justice Department in several briefs has argued that the presumption against extraterritoriality applies to this statute," Stephan wrote (citing this 1 U.S. amicus brief, which dates from the 2d term of President George W. Bush). The Insight adds that "[s]cholarly support exists" for such a position. All may be tested soon: Stephan noted that the question's presented in Talisman Energy (photo credit), an Alien Tort case involving the oil field in Sudan, which the Supreme Court has been asked to review.

Another thought jumps to mind:

Any chance that a Court cutback campaign might reach to a sector in which extraterritoriality has grown steadily, with judicial approval, in the years of the so-called wars on drugs and terror? That is, to extraterritorial criminal jurisdiction?

Human rights claims clear immunity hurdle

(My thanks to IntLawGrrls for the opportunity to contribute this guest post discussing a case on which I worked while an intern at the Center for Justice & Accountability)

The U.S. Supreme Court unanimously has rejected certain claims to immunity against civil actions alleging human rights violations. Still, questions remain.

In Samantar v. Yousuf, the Court held last week that the Foreign Sovereign Immunities Act does not shield former government officials from liability for suits filed under either the Torture Victim Protection Act or the Alien Tort Statute.

As IntLawGrrls have posted (here, here, and here), during the late 1980s petitioner Mohamed Ali Samantar served as the First Vice President and Minister of Defense of Somalia for the regime headed by President Siad Barre. Under Samantar's direction, the Somali military subjected the seven respondents/plaintiffs, or their family members, to torture, cruel, inhuman and degrading treatment, or extrajudicial killings. These victims’ only "offense" was membership in the Isaaq clan, a prosperous and independent group perceived by the regime as a likely source for potential political rivals.
After the Barre regime collapsed, Samantar moved to the United States and took up residence in Virginia. In 2004 respondents filed suit under the Torture Victim Protection Act and the Alien Tort Statute. These laws confer jurisdiction on federal courts to hear cases regarding foreign torts committed in violation of international law -- in this case, torture and extrajudicial killing. Samantar moved to dismiss. The federal district court granted his motion, reasoning that he was acting within the scope of his authority as a foreign official and, therefore, that the FSIA shielded him from liability. The U.S. Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted respondents' petition for certiorari.
The high court’s just-issued decision is a victory for human rights advocates in this country, because it prevents former foreign officials from claiming immunity under the FSIA for their human rights abuses.

The principal opinion, authored by Justice John Paul Stevens (left), rests on a very detailed and technical reading of the terms “agency or instrumentality” and “foreign state” in the FSIA. “Agency or instrumentality,” as defined by the statute itself, is an “entity,” “separate legal person, corporate or otherwise,” or an “organ” of the state -- language the Court interprets to mean an organization or corporation, not an individual official.

Stevens wrote (slip op. at 16):

Reading the FSIA as a whole, there is nothing to suggest we should read 'foreign state' in § 1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.

As a result, the Court ruled that the petitioner/defendant does not qualify as an agency or instrumentality of a foreign state, even if he was acting within the scope of his official authority. Thus he cannot rely on the FSIA to protect him from liability.
The Court also looked to the legislative history and intent of the FSIA to bolster its reading of the statute. Examining the complicated interplay between immunity for foreign states and for foreign officials, it held that Congress intended to leave immunity for foreign officials outside the scope of the act. Not surprisingly, in separate concurring opinions, Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas took exception to the Court’s use of legislative history in its interpretation of the statute.
With this very narrow judgment the Court left open a series of important and niggling questions; for example:

► Do former government officials have immunity stemming from the common law?

► If so, what form does that immunity take and who determines it?

The Office of the Solicitor General has argued consistently that the Executive Branch, and more specifically the U.S. State Department, has the power to determine common law immunity, not the courts.

This is an interesting and infrequently litigated area, which will no doubt garner much debate in the coming years.

Tea leaves on Kagan & international law

How will President Barack Obama's nominee to the U.S. Supreme Court treat issues of foreign, international, comparative, or transnational law?
As with many other areas respecting the judicial potential of Elena Kagan (left) (prior posts), this one is tabula rasa.
Kagan, who seems likely to succeed in her bid to replace retiring Justice John Paul Stevens (at right in bottom photo), has among the sparsest written record of public writings of any nominee in decades.
Consideration of the question of Kagan and intlaw thus requires resort to reading tea leaves.

Leaf No. 1: Marshall Clerk
► Among the judgments issued during Kagan's OT '87 clerkship for Justice Thurgood Marshall was Thompson v. Oklahoma (1988), in which international context played a role in the Court's holding that execution of a 15 year old would violate the Cruel and Unusual Punishments Clause of the 8th Amendment to the U.S. Constitution. The controlling plurality opinion stated (footnotes omitted):

The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo American heritage, and by the leading members of the Western European community. Thus, the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.

As I've written here, that passage, written by Justice Stevens, set the stage for the debate over consultation of foreign context, one that continues to this day. It's impossible to find out from my Pacific Coast perch what, if any, role Kagan, 1 of 3 TM clerks that year, played in Justice Marshall's decision to join Stevens' opinion.
Kagan appears never herself to have written about the advisability vel non of consultation -- a practice that, as posted, then-Judge Sonia Sotomayor (far right) was constrained to rebuke in her quest last year to become a Justice. But Kagan surely knows of the debate. Indeed, though she offered no thoughts of her own on the matter, Kagan invited Justice Ruth Bader Ginsburg (near right) to rise to the defense of the practice during an interview published as "Remarks Commemorating Celebration 55: The Women's Leadership Summit," 32 Harvard Journal of Law & Gender 233, 237 (2009).
► The term "foreign experiences" does surface in "For Justice Marshall," 71 Texas Law Review 1125 (1993), Kagan's tribute to her then-just-departed Boss. She recalled the penchant Marshall (below left) had for telling stories -- not only of his work as a civil rights and criminal defense lawyer in America, but also of his ventures overseas. (As posted, the best account of the latter is by IntLawGrrls guest/alumna Mary L. Dudziak.) Kagan wrote:

When Justice Marshall was investigating racial discrimination in the military in Korea, a soldier demanded that he provide a password; the hulking (and, of course, black) Marshall looked down at the soldier and asked, 'Do you really think I'm North Korean?' And when assisting in the drafting of the Kenyan Constitution, the Justice was introduced to Prince Philip. 'Do you care to hear my opinion of lawyers?' Prince Philip asked in posh British tones, mimicked to great comic effect by Justice Marshall. 'Only,' Justice Marshall replied -- before the two discovered mutual ground in a taste for bourbon -- 'if you care to hear my opinion of princes.'

Here's the lesson that Kagan said she drew from such stories:

They were a way of showing us foreign experiences and worlds, and in doing so, of reorienting our perspectives on even what had seemed most familiar. And they served another function as well: they reminded us, as Justice Marshall thought all lawyers (and certainly all judges) should be reminded, that behind law there are stories -- stories of people's lives as shaped by law, stories of people's lives as might be changed by law.

Leaf No. 2: Legal Scholar
► No reference to foreign, comparative, transnational, or international law/context appears in any of the half-dozen or so articles that Kagan authored or coauthored while a professor at Chicago and Harvard.

Leaf No. 3: Harvard Law Dean
► Among the most-remarked features of Kagan's tenure as Harvard Law's 1st woman dean was her recruitment of numerous conservatives, among them Jack L. Goldsmith, a Bush Administration lawyer post-9/11 and author of an Office of Legal Counsel memorandum ably criticized by José E. Alvarez in "Torturing the Law" and Leila Nadya Sadat in "Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law," at pages 175 and 309, respectively, of 37 Case Western Reserve Journal of International Law (2006).
► Kagan also oversaw the introduction into the mandatory 1L curriculum of a class "that looks at law in a comparative or international framework," an innovation she discussed in "The Harvard Law School Revisited," 114 Green Bag 2d 475 (2008):

The courses in comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.

Leaf No. 4: Solicitor General
► Kagan's 14-month stint as the United States' top Supreme Court lawyer has been distinguished mostly by the fact that she's the 1st woman in the post. (It's her 2d turn in the Executive Branch; not much seems to have been written yet about her couple years in the Clinton White House.) Kagan's 1st oral argument before the Court came last September in Citizens United v. FEC; she failed to persuade a majority to sustain a federal statute regulating corporate spending on elections.

Here's a sampling on cases with a transnational angle:

► In Samantar v. Yousuf (a pending case on which we've posted here, here, and here), Kagan, along with State Department Legal Adviser Harold Hongju Koh, signed an amicus brief on behalf of Alien Tort Statute plaintiffs, who're seeking affirmance of a lower-court ruling denying sovereign immunity to a former Somali official.

► During her confirmation hearings and since, Kagan's SG office has called for robust executive power in the campaign against terrorism (and see here). That fact should not surprise anyone who remembers the Clinton DOJ.

In short, a mixed bag. Perhaps the best answer to the question posed at the top is one implicit in a speech by Justice Stevens, whose own approach to transnational matters evolved, as I've written here. Stevens' speech, published at 74 Fordham Law Review 1561 (2006), was delivered in 2005, almost immediately after he'd administered the oath of office to Chief Justice John G. Roberts, Jr. (above).

Applied to present context, the underlying question is this:

What will Justice Kagan be open to learning on the job?

Such on-the-job learning, Stevens said, is

'essential to the process of judging.'

A Stevens birthday reader

The seniormost Justice of the U.S. Supreme Court, John Paul Stevens (right), today celebrates his 90th birthday.
That milestone -- coupled with his recent announcement that he will step down at the end of this, his 35th Term on the Court -- prompted an outpouring of stories. Having myself had the privilege of clerking for the Justice during OT '88, I offer a Stevens Birthday Reader to supplement IntLawGrrls' prior posts about the Justice.
► Blogreaders will recall that last year the University of California, Davis, Law Review sponsored a daylong conference entitled "The Honorable John Paul Stevens." The symposium edition, featuring articles on Stevens' jurisprudence respecting liberty, equality, and security, has just been published; a pdf version of each article can be accessed by clicking on its title in the table of contents available here. My own contribution, John Paul Stevens and Equally Impartial Government, is my most recent work examining jurisprudence in light of life experiences; an earlier effort, John Paul Stevens, Human Rights Judge, which analyzes his treatment of foreign and international law and context, was part of another symposium edition, published as 74 Fordham Law Review 1557-2369 (2006).
► "Speaking of Stevens: A Forum on the Justice, His Legacy, and the Future of the Court," is an ongoing blog at The National Law Journal's website, and a Los Angeles Times op-ed take on that same subject, published today by former clerk and Princeton Provost Christopher L. Eisgruber, who calls Stevens "America's last pre-Roe Justice," is here.
► Finally, SCOTUSblog has just launched "Thirty Days of John Paul Stevens," featuring contributions from former clerks and other legal experts. My birthday post, entitled "John Paul Stevens and the American Century," appears today; others set to post in the series include Stanford Law's Pamela S. Karlan, as well as former Stevens clerks, like Susan Estrich (USC), Teresa Wynn Roseborough (MetLife (prior post); Teresa's contribution to our symposium edition, on Bush v. Gore (2000), is here), Pamela Harris (Georgetown), Deborah Pearlstein (Princeton (prior posts); her contribution to our symposium edition, on Guantánamo-related cases, is here), and Sonja West (Georgia).
And if that's not enough reading, there are any number of Stevens opinions from which to choose.

Stevens on targeted killing

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh (below left), yesterday outlined a multi-pronged defense of the Obama Administration's use of drones for targeted killings of presumed al Qaeda operatives. (photo credit) Among the statements made during Koh's keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service. The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens' thoughts about perhaps the most famous targeted killing of World War II:

One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”

Stevens' own thoughts were more complex:

But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”

Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens' post-9/11 jurisprudence, Toobin contributed this insight:

The morality of military action became a lifelong preoccupation.

It's also worth noting that Stevens' concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:

Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”

As pointed out in note 178 of my article, Stevens revealed in a 1996 speech that, notwithstanding these doubts, at the time of his 1975 confirmation hearings, he did not himself know how he would vote on capital punishment. The Justice since has told me that in 1975 no Senator asked him his views, neither publicly nor privately. In 1976, he voted in Gregg and related cases to reinstate the death penalty. But as posted, in 2008, Stevens made public his conclusion that the death penalty, in all its applications, violates the 8th Amendment to the U.S. Constitution.

Stevens' linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:

► As my 2006 article observed,

That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.

My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens's family that might have encouraged careful thought about the power of the state.

► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law's substance, places valuable constraints on state power.

The quote at the very top of this post stands in conflict with that sense of justice.

Koh on targeted killing

There was much worth pondering in the keynote speech that Harold Hongju Koh (center left), since last June the Legal Adviser to the U.S. Department of State, delivered yesterday at the annual meeting of the American Society of International Law.
'Grrls will be posting on various aspects of that talk and others in short order. But we can't let a day go by without posting his remarks on unmanned aerial vehicles, better known as UAVs or drones (pictured below).
A few hours before Koh's speech, IntLawGrrls guest/alumna Mary Ellen O'Connell, newly elected an ASIL Vice President, had chaired a well-attended panel on the issue. Mary Ellen, who'd written a Balkinization post in support of Koh's nomination about this time last year, last December contributed an IntLawGrrls post outlining her legal concerns about the United States' use of drones in the AfPak conflict to target for killing persons believed to be al Qaeda operatives.
Thanks to ASIL's Sheila R. Ward, we set forth verbatim relevant quotes from Koh's speech, which you can watch in the video clip here.
Koh, formerly the Yale Law Dean and an ASIL Counsellor, maintained that such use is legal, essentially embracing the "war" paradigm that many others have challenged. He stated:

[I]t is the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war…
As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….

He then detailed how "this administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles"; specifically:

► First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
► Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

Koh endeavored to assure his audience that in

U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.

Addressing critics of the policy, he continued:

[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law....
[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….
[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

[On this boldfaced statement, consider the rather different view in my post above, which reprints a passage, from my 2006 article, that recounts Justice John Paul Stevens' concerns regarding a targeted killing in which he and other Navy codebreakers played a role -- the killing in 1943 of Admiral Isoroku Yamamoto, architect of Japan's attack on Pearl Harbor.]
Koh maintained that due precautions are taken even without the interposition of due process:

Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….

Finally, Koh cited domestic law as an independent justification:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’

Sotomayor takes Obama to Court

Later this morning Chief Justice John G. Roberts, Jr., will administer the oath of the office of Associate Justice to Sonia Sotomayor (right). The event will take place at the Court's marble edifice (below) -- a choice of location that reflects President Barack Obama's understanding both of the separation of powers and the importance of symbolism.
In recent years confirmees have had to take part in ceremonies at the White House. This departure from prior practice has been cause for concern among some on the Court. Just weeks after the inauguration at which Roberts swore in Obama, the Justice who administered the oath to Vice President Joseph Biden, John Paul Stevens, made a very public statement of concern.
The date was February 26. The place, Washington's Newseum. The occasion, Stevens' discussion with Cliff Sloan and David McKean, the authors of The Greatest Decision (2009), an excellent social history of Chief Justice John Marshall's landmark decision on judicial review, Marbury v. Madison (1803). Stevens used the opinion's treatment of the judicial oath as his springboard to discuss where a Justice's oath should be taken. Here's a transcription of the C-SPAN video of what Stevens, appointed in 1975 by President Gerald R. Ford, said:

[I]t's a very personal thing, but – rereading the opinion, the first part on the oath stresses the importance of the commission that was withheld or was not delivered to Marbury. In the end of the opinion, one of the reasons given by John Marshall for finding constitutional objection to their appellate jurisdiction was the nature of the oath that the judges had to take, and the fact that they had to solemnly swear to administer justice and so forth, and 'according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.' And he stresses the fact that because they take that oath to uphold the Constitution, obviously the Constitution has to be a document of special importance.
Well, these two aspects of the case brought to mind my own installation. When I was installed as a Justice of the Supreme Court, President Ford came down to the Court, and moved the admission of the Attorney General who presented the commission to the clerk, and then the oath took place. ... When Justice O’Connor, who was the next appointment, was installed, President Reagan came down to the Court – we take actually two oaths, there is a statutory oath and a constitutional oath – and one of them was traditionally administered in the Conference Room, and the other in open court as part of the ceremony. And President Reagan came to the administration of the oath in the Conference Room.
And I’ve always thought those two examples of the President coming to the Court for that important event was a demonstration of the separation of powers involved, and the fact that after the appointment has taken place, the Justice is on his own or her own, and is no longer representing the political branch of the government. ...
President Reagan, when Warren Burger retired and William Rehnquist became Chief, and Justice Scalia was appointed they had the swearing-in at the White House. They also had a second ceremony at the Supreme Court. And also, after that, when Justice Kennedy was appointed, the first ceremony took place at the White House and not at the Court. And I was troubled by that as incorrect symbolism of the division of power between the separate branches.
So when the following four nominees were installed, with the same procedure, going at the White House, I did not attend the ceremony when David Souter or Clarence Thomas or Ruth Ginsburg or Stephen Breyer was installed. I thought that we should make a change in that regard. And because I didn’t, that fact that I didn’t go, I think will suggest to you I felt rather strongly that there is important symbolism in the way in which this terribly important oath is administered and the place in which it’s administered.

Stevens did go to the White House in 2005, when as the senior Justice following the death of Chief Justice William H. Rehnquist, it fell upon him to administer the oath to Roberts. But his concession then did not ease his mind. Stevens told his Newseum audience that he had raised the issue publicly

because I’m hopeful that in the future, Presidents may consider the importance of coming to the Court on this occasion, and drawing the very fine and important line between the appointment process, which is political in character and involves the exercise of discretion, and the very separate status that is created after the appointment process has taken place.

Two days after the appointment process (prior posts) ended with the Senate's 68-31 confirmation of Sotomayor, that "very fine and important line" is back in place, a welcome Presidential recognition of the federal judiciary's independence from the political branches.

It is on such niceties that the rule of law rests.

'Nuff said

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

[T]he Court ... simply applies T.L.O. to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might behiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that "‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.’"

-- U.S. Supreme Court Justice John Paul Stevens (above left), concurring in part and dissenting in part yesterday in Safford United School District #1 v. Redding (quoting his own 1985 concurrence/dissent in the case of New Jersey v. T.L.O.).

In the opinion Stevens, joined by Justice Ruth Bader Ginsburg (right), contended that their colleagues should have upheld a lower court's decision to let go forward the damages suit filed by the girl, an Arizona middle school student when searched in 2003. They failed to persuade the rest of the Court, however. Although 6 Justices agreed that the search violated the 4th Amendment, they ruled that this was not "clearly established" in 2003, so that school officials were immune from suit. (SCOTUSblog's Lyle Denniston explains that a prospective matter this ruling does expand student privacy somewhat.) The 9th Justice, Clarence Thomas, filed a concurrence/dissent inverse to that of Stevens and Ginsburg: Thomas agreed officials were immune, but disagreed that strip searching the teenager violated the Constitution.

The next Justice

Popping into a White House press briefing, President Barack Obama just confirmed that Justice David Souter is retiring after 19 years on the U.S. Supreme Court. (Souter's resignation letter is here.)
Last night's leak of the news already has opened floodgates of speculation about who will succeed Souter. Will it be:
► A woman? Lots of folks think this is a good idea. It sure would end the isolation that Justice Ruth Bader Ginsburg has often lamented -- most recently, as we posted, just a couple weeks ago -- since the departure of her colleague, Justice Sandra Day O'Connor. More women, moreover, sure would make the Court's group photo look more like those of most U.S. law school student bodies, many faculties, and lots of law firms.
► Someone versed in transnational and international law? IntLawGrrls can't help but like the idea, explored in depth here by our colleague Peter Spiro. If this proves a criterion, a few people whose names already are cropping up on short lists jump to mind: Judge Diane P. Wood (below right) of the U.S. Court of Appeals for the 7th Circuit, and Senior Lecturer in Law at the University of Chicago (same title once held by Obama), who gave a terrific talk on globalization and law at a 2007 conference cosponsored by the Association of American Law Schools and the American Society of International Law; another speaker at that 2007 ASIL/AALS conference, Harold Hongju Koh, Yale Law Dean and State Department Legal Adviser nominee, about whom IntLawGrrls readers know much from these posts; and Judge William A. Fletcher of the U.S. Court of Appeals for the Circuit, a federal jurisdiction/civil procedure professor at California-Berkeley and a participant in talks on globalization and law, among them Réseau ID, in which several IntLawGrrls and Koh also have taken part.
► A Latino/a? Our colleague and California-Davis Law Dean Kevin Johnson has examined this idea in 2 articles, available here and here.
► The 1st openly gay nominee? That's the hope of some, according to this article.
► Someone with significant military experience? Our colleague Eugene R. Fidell, the President of the National Institute of Military Justice now visiting at Yale Law School, made a persuasive argument for that trait in his presentation on the "Security" panel of the March symposium in honor of Justice John Paul Stevens at California-Davis, available now on webcast and soon in print in the UC Davis Law Review.
► Someone whose legal experience comes from the practice rather than from academia or the bench? One name that's already surfaced in this regard is Teresa Wynn Roseborough (left), Chief Litigation Counsel at MetLife, former Deputy Assistant Attorney General, former partner at Atlanta's Sutherland Asbill firm, former Stevens clerk, and former Chairman of the Board of the American Constitution Society. Teresa gave a terrific talk on the "Equality" panel at our JPS symposium: drawing on her experience arguing on behalf of Al Gore before the 11th Circuit en banc, she deployed actual chad-cards and actual Florida voting booths to persuade the symposium audience that Justice Stevens and other Supreme Court dissenters in Bush v. Gore (2000) had the better view of the case. (Webcast here.)
All the traits above, and more, no doubt will be weighed as Obama moves toward his ultimate choice. As he does, let's hope he keeps well in mind the overarching criterion Obama himself set at today's press briefing:

'I will seek someone with a sharp and independent mind.'

Go On! "The Honorable John Paul Stevens"

(Go On! is an occasional item on symposia of interest) Throughout IntLawGrrls' 1st 2 years, occasions have presented themselves for posts on the work of Justice John Paul Stevens, who's served on the U.S. Supreme Court since 1975. Having had the privilege of clerking for the Justice in the Court's 1988-89 Term, I'm delighted to announce that on Friday, March 6, 2009, the University of California, Davis, School of Law, my home institution, will host a daylong conference entitled "The Honorable John Paul Stevens."
This Law Review symposium is a core component of our celebration of the 40th anniversary of the day that our law school building was dedicated as Martin Luther King, Jr. Hall, with Chief Justice Earl Warren presiding and members of Dr. King’s family participating.
The conference will begin with videotaped remarks from Justice Stevens. Thereafter an exciting group of panelists – some former clerks, as well as other legal experts drawn from academia, journalism, and the practice – will examine the Justice’s jurisprudence respecting topics such as capital punishment , counterterrorism, equal protection, abortion, and the environment, all considered within the umbrella of 3 themes, liberty, equality, and security.
Here's the lineup:

Liberty

David F. Levi (moderator), Dean of Duke University School of Law, former U.S. District Judge, Eastern District of California, former U.S. Attorney, Eastern District of California, and former Adjunct Professor of Law, University of California, Davis, School of Law; Jeffrey L. Fisher, Associate Professor of Law & Co-director of the Supreme Court Litigation Clinic, Stanford Law School; Jamal Greene, Associate Professor of Law, Columbia Law School; Linda Greenhouse, Knight Distinguished Journalist in Residence & Joseph M. Goldstein Senior Fellow in Law, Yale Law School, and former Supreme Court correspondent for The New York Times; and Elisabeth Semel, Clinical Professor of Law & Director of the Death Penalty Clinic, University of California, Berkeley, School of Law.

Equality
Cruz Reynoso (moderator), Boochever & Bird Professor of Law Emeritus, University of California, Davis, School of Law, former Justice of the California Supreme Court, and former Vice Chair of the U.S. Commission on Civil Rights; Diane Marie Amann, Professor of Law & Director, California International Law Center at King Hall, University of California, Davis, School of Law; Teresa Wynn Roseborough, Chief Litigation Counsel at MetLife in New York and former U.S. Deputy Assistant Attorney General; and Andrew Siegel, Associate Professor of Law, Seattle University School of Law.

Security
Kenneth A. Manaster (moderator), Professor of Law, Santa Clara University School of Law, and author of Illinois Justice: The Scandal of 1969 and the Rise of John Paul Stevens (2001); Daniel A. Farber, Sho Sato Professor of Law & Director, Environmental Law Program, University of California, Berkeley, School of Law; Eugene R. Fidell, Florence Rogatz Visiting Lecturer in Law, Yale Law School, and President of the National Institute of Military Justice; Deborah N. Pearlstein, Associate Research Scholar, Woodrow Wilson School for Public & International Affairs, Princeton University, and former Director, Law & Security Program, Human Rights First; and Kathryn Watts, Assistant Professor of Law, University of Washington School of Law.

Details and registration (California MCLE available) -- and, following the conference, a webcast of the event -- may be found here.

On January 12

On this day in ...

... 1948, on a Monday just 4 days after the conclusion of a 2-day oral argument, the U.S. Supreme Court issued a per curiam judgment declaring that Oklahoma must afford petitioner Ada Sipuel Fisher (right) -- whom the Court described as "a Negro, concededly qualified" --admission to the state law school where "many white applicants have been afforded legal education." The brief opinion in Sipuel v. Board of Regents added that Oklahoma "must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment, and provide it as soon as it does for applicants of any other group." But Oklahoma ignored the order. The Court, in Fisher v. Hurst, a decision issued the next month, refused to issue a writ of mandamus on behalf of petitioner. As I've posted, the dissent by Justice Wiley B. Rutledge was preceded by a bench memorandum from his law clerk, John Paul Stevens. Eventually, Sipuel Fisher was permitted to attend the law school, albeit under harsh conditions; she graduated in 1952 and returned to her hometown to practice law. In 1992 she was appointed to the Board of Regents of the university that once had excluded her. She died in 1995. (credit for oil portrait of Sipuel Fisher, by Mitsuno Ishii Reedy, which is on display in the rotunda at the Oklahoma State Capitol)

... 1992, in a national referendum, the people of Mali approved a new Constitution. According to the Library of Congress, the 1992 Constitution, "[l]ike its two predecessors, ... is based on the French model." (The West African country, flag at left, won independence from France in 1960.) The 1992 Constitution has been amended once, in 1999, "to incorporate some revisions of the electoral system and strengthen the judicial system"; those changes were not submitted to popular vote.