On January 22

On this day in ...

... 1946 (65 years ago today), President Harry S. Truman established the forerunner of today's CIA, or U.S. Central Intelligence Agency. Then called the Central Intelligence Group (image credit), it was established by means of a Presidential directive addressed to the Secretaries of State, of War, and of the Navy. It was situated within an agency then called the National Intelligence Authority. The group's purpose, in Truman's words, was that

Federal foreign intelligence activities be planned, developed and coordinated so as to assure the most effective accomplishment of the intelligence mission related to the national security.

(Prior January 22 posts are here, here, and here.)

Genocide and crimes against humanity in the national systems of Latin America

(Many thanks to IntLawGirls for inviting me to present my latest article in in this guest post)

As opposed to the other so-called core crimes under international law, genocide is one of the few to be codified in the national judicial systems of most Latin American states long before the adoption of the Rome Statute system. Indeed, the codification process took place from the 1970s onwards and, in some instances, even before. As I discuss in my latest article, "An Overview of the Crime of Genocide in Latin American Jurisdictions", 10 International Criminal Law Review 441 (2010), this history generated disparities between the international and the national definitions.
In general terms, the dolus specialis -- the requisite "intent to destroy, in whole or in part," as stated in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) -- is inherent to all national provisions on genocide analyzed in my article.
The deviations from the international definition thus revolve around the actus reus, understood as encompassing two other aspects of the Genocide Convention definition:
►The modalities of commission, encompassing, in Article III, genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide; and
► The protected groups included in Article II, namely, "a national, ethnical, racial or religious group, as such."
Deviations from the Genocide Convention definition found in Latin American codes present a common feature: the enlargement of the scope of the protected groups, by including the political group and other, even more general groups.
Such a disparate outcome may be attributed, in my view, to the several decades of confrontation, in many cases amounting to non-international armed conflicts, that were experienced in various countries in Latin America. (In Colombia, the armed conflict, although reduced, is still ongoing.) Such conflicts generally involved a state policy of systematic attack against civilian populations, and in many instances against political groups. By the same token, the so-called "doctrine of national security" that served as a justification for the emergence of repressive regimes in the 1970s was politically motivated and targeted.
Jurisprudence in this area is incomplete.
Notwithstanding the fact that the most relevant Latin American deviations from the international definition refer to the protected groups, jurisprudence has not shed much light either on the underlying rationale or justification for such a deviation or on the scope of interpretation of the deviation. In this connection, my article pays particular attention to constitutional challenges that have been lodged against some of the elements incorporated in the Colombian and Bolivian provisions on genocide. Also receiving attention is a conviction for genocide rendered by the Bolivian Supreme Court (above).
In my view, understanding the status of other international offences is critical to understanding the status of genocide as it is codified in Latin America.
Crimes against humanity were generally unknown in national legislation. Arguably, this did not begin to change until the 2002. The entry into force that year of the Rome Statute of the International Criminal Court (below right) paved the way for serious consideration of the proscription of crimes against humanity in national systems. This situation may explain why some Latin American countries adopted definitions of genocide that deviated from the international standard.
Also significant is the fact that conviction for genocide has historically provoked a strong moral condemnation.
The time is ripe to reflect on the reasons behind the intention to label a particular situation as genocide, given that the codification of the other core crimes has gained momentum.
Some consideration should be devoted to the national implementation of the Rome Statute.
In this vein, it is worth noting that the current trend on implementation in Latin America offers mixed signals as to whether states will opt:
► To maintain the enlarged scope of genocide, on the one hand; or,
► To avoid, on the other hand, perilous juxtapositions that may arise -- mainly with respect to crimes against humanity -- by creating clearer parameters between crimes.
Blending of Latin American history, of the customary aspects of crimes against humanity and its momentum of codification, and of societal perspectives towards the crime of genocide lead to a complex and challenging interaction.

"potential to harm our national security"

Several hours after yesterday's sentencing hearing in the 1st civilian trial of a onetime Guantánamo detainee -- convicted of an offense that carries a potential life sentence -- President Barack Obama challenged Congress as acting against U.S. security. His exact words:

The prosecution of terrorists in Federal court is a powerful tool in our efforts to protect the Nation and must be among the options available to us. Any attempt to deprive the executive branch of that tool undermines our Nation's counterterrorism efforts and has the potential to harm our national security.

Such an attempt in fact had been made. Successfully.
Tucked into the annual defense spending bill -- passed by Republicans and Democrats alike in last month's lame-duck session -- were:
► Section 1032, which, as Obama explained "bars the use of funds authorized to be appropriated by this Act for fiscal year 2011 to transfer Guantanamo detainees into the United States"; and
► Section 1033, which "bars the use of certain funds to transfer detainees to the custody or effective control of foreign countries unless specified conditions are met."
Despite contending that these sections may "harm our national security," Obama chose against a veto. He signed the bill into law lest ongoing military efforts go unfunded. The quoted words thus appear in a signing statement that may have little practical effect other than to emphasize the approach of 2 anniversaries:
► This Tuesday, January 11, will mark 9 years since the 1st post-9/11 detainees arrived at GTMO, on orders of President George W. Bush.
► 2 weeks from today, Saturday, January 22, will mark 1 year after GTMO was to have been closed according to the order that Obama issued, in fulfillment of a key campaign promise, the day after becoming President.
Of the estimated 700 boys and men who are said to have passed through the detention center in the last 9 years, 173 remain.

Guest Blogger: Kathleen Clark

It's IntLawGrrls' great pleasure to welcome Kathleen Clark (left) as today's guest blogger.
Kathleen is Professor of Law and 2010-11 Israel Treiman Faculty Fellow at Washington University School of Law, St. Louis, Missouri, where teaches and writes about government ethics, national security law, legal ethics, and whistleblowing. For more than a decade, she has offered a course she created, on governmental ethics; in addition, she created a course on comparative whistleblowing, which she taught at the Summer Institute for Global Justice, Utrecht University, the Netherlands.
A 2004 Washington Post op-ed on the Department of Justice "torture memo," coauthored with our colleague Julie Mertus, led to Kathleen's testimony before Congress and her publication of "Ethical Issues Raised by the OLC Torture Memorandum," 1 Journal of National Security Law & Policy 455 (2005).
In her guest post below, Kathleen makes the case for the need for "someone in government will provide some clarification -- and some sanity" on the issue of WikiLeaks disclosures, an issue on which IntLawGrrls featured 2 guest posts last week, by Judge Patricia M. Wald (here) and by Professor Mary Ellen O’Connell (here).
Kathleen earned her B.A. and J.D. degrees from Yale University, and clerked for the Honorable Judge Harold H. Greene, U.S. District Court for the District of Columbia. She then served as counsel to the U.S. Senate Judiciary Committee, working on issues of white collar crime.
A member of the American Law Institute, Kathleen's an advisor to the institute’s Project on Principles of Government Ethics. She's also a consultant to the Administrative Conference of the United States and past Chair of the National Security Law Section of the Association of American Law Schools.

Heartfelt welcome!

Information Security & Fear-Mongering about WikiLeaks

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

The response of the White House's Office of Management and Budget to the latest WikiLeaks document dump gives us a peek both into the sometimes surreal standards for dealing with information that the executive branch deems to be classified, and at the fear-mongering some government officials are engaging in.
According to CNN, on December 3rd, OMB instructed executive branch agencies to notify all government employees and contractors that they should not view any documents that are marked as classified using their work computers that access the web via non-classified government systems.
OMB distinguished “documents that are marked classified” from “news reports . . . that . . . discuss the classified material.” Employees can use non-classified government systems to access news reports that include classified information, but must not use those systems to access the classified documents themselves. This distinction might seem silly to an outsider, but the government imposes special security measures for its computers that store classified documents, and takes pains to ensure that its computers without these security measures do not have any classified documents. This system of segregating classified documents is complicated and costly. But so far, so good.
OMB also suggested (somewhat ambiguously) that federal employees and contractors without the proper clearances and the "need to know" the information should not access Wikileaks' classified information. Specifically, OMB stated:

'Federal employees and contractors shall not access classified material unless a favorable determination of the person's eligibility for access has been made by an agency head or the agency head's designee, the person has signed and approved [a] non-disclosure agreement, [and] the person has a need to know the information . . . .'

(Here and in quotes below, italics added.)
At least one agency has gone further, asserting that government employees -- and prospective employees -- should not access WikiLeaks classified documents even from their home computers.
According to Democracy Now, the State Department instructed employees of the U.S. Agency for International Development as follows:

'Accessing the Wikileaks web site from any computer may be viewed as a violation of the SF-312 agreement.'

According to the SF 312 (a non-disclosure agreement), violation can result in termination of a security clearance and employment.
The State Department memo also warned USAID employees:

'Any discussions concerning the legitimacy of any documents or whether or not they are classified must be conducted within controlled access areas (overseas) or within restricted areas (USAID/Washington)... The documents should not be viewed, downloaded, or stored on your USAID unclassified network computer or home computer; they should not be printed or retransmitted in any fashion.'

In other words, just accessing the WikiLeaks website from a home computer could result in the loss of a security clearance and job.
Steven Aftergood, Director of the Federation of American Scientists Project on Government Secrecy -- a transparency activist who has been critical of WikiLeaks -- characterized the State Department memo as "insane."
It is not at all clear how accessing the WikiLeaks documents on a personal home computer would constitute a violation of an agreement not to disclose classified information. On the other hand, the SF 312 asserts that

'unauthorized retention . . . of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.'

This does not appear to be a one-off mistake by an overzealous State Department official. At least one government contractor has similarly warned its employees:

'Reviewing information on WikiLeaks or subsequent disclosures is strictly prohibited. ... [P]ersonnel are prohibited from accessing WikiLeaks whether on company-issued or on personal equipment.'

The fear-mongering applies not just to contractors but also to prospective government employees.
Democracy Now reported that the Office of Career Services at Columbia University's School of International and Public Affairs told its students that an alumnus working at the State Department

'recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government.'

Maura Kelly, Assistant Dean for Career Development and Public Service at Boston University Law School, sent a message to BU students and alumni that

'[t]he documents released by Wikileaks remain classified; thus, reading them, passing them on, commenting on them may be seen as a violation of Executive Order 13526, Classified National Security Information. See Section 5.5 (Sanctions).'

She specifically warned:

'DO NOT post links to the documents or make comments on any social media sites.'

Are these just over-reactions by people who are not familiar with the government's information security standards?
Or do these warnings reflect a concerted effort to prevent Americans from accessing and discussing the WikiLeaks documents that are now available on the web?
I hope that someone in government will provide some clarification -- and some sanity -- on this issue soon.

International Law & WikiLeaks

(Delighted to welcome back alumna Mary Ellen O’Connell (below right), who contributes this guest post on release of classified documents by WikiLeaks, an issue on which alumna Patricia M. Wald posted yesterday)

I generally share Judge Wald’s critical view of WikiLeaks’ action.
In thinking about the matter from the perspective of international law, so far I see three areas of special interest:

1. Prosecution
State Department Legal Adviser Harold Koh, Attorney General Eric Holder, Secretary of State Hillary Clinton, and others have all discussed prosecuting “those responsible” for the document dump. The main figure associated with WikiLeaks is the Australian, Julian Assange. He is thought to be in hiding somewhere in Europe. Interpol has issued an international arrest warrant for Assange, to send him to Sweden to face questioning. I have seen no reports of a U.S. request for an international arrest warrant. (credit for logo of Interpol Red Notice)
My first thoughts in this episode have concerned on what basis Assange could be brought to the U.S. for prosecution. If he comes into Swedish custody, for example, and the United States then requests his extradition, NPR is reporting that the basis of criminal prosecution would likely be the Espionage Act. (See, e.g., 18 U.S.C. sec. 798 “Disclosure of Classified Information”.)
The Espionage Act seems to be narrowly drafted and to contain details that might well make it difficult to meet the requirements of U.S. extradition treaties.

2. Terrorism
Perhaps for the issues raised in Point 1, U.S. Rep. Peter King (R-N.Y.) is calling for WikiLeaks to be declared a terrorist organization? I wonder if Rep. King believes that declaring WikiLeaks a terrorist organization means that the U.S. will treat Assange as an “enemy combatant?” International law has no authority to support such assertions. We can hope that the administration will definitive reject them, and even reconsider other cases where criminal suspects are currently being treated as “enemy combatants.” (See my soon-to-be forthcoming article, “The Choice of Law Against Terrorism.”)

3. Diplomacy
We can further hope that this case will wake up governments around the world to greater vigilance on behalf of international law.
We should all be very concerned that certain Middle Eastern governments want to see military force used against Iran. There is no right to use military force against a state for the possession of even unlawful weapons. (See my “The Ban on the Bomb and Bombing, Iran, the U.S., and the International Law of Self-Defense”.) This is only one example. The documents are full of issues we in international law should be bringing to public awareness.
Ironically, in some cases involving the United States and non-compliance with international law, I wonder if governments are going to read the unflattering documents and either end cooperation or pressure the United States into ending non-compliant conduct? I have written about U.S. uses of military force in Yemen that conflict with international law. Is Yemeni President Ali Abdullah Saleh going to continue to cooperate in this after what has been said about him?
And, of course, all of us in international law need to be concerned about the attempt to steal private information concerning the Secretary-General of the United Nations.
The gratuitous gossip in some of the communications is also striking — it made me think of the Rolling Stone interview with General Stanley McChrystal. (prior IntLawGrrls post)
The WikiLeaks decision to release this material was reprehensible. Hopefully the right lessons will be learned from it with respect to the conduct of diplomacy and the goals of U.S. foreign policy.

Wald on WikiLeaks

(Honored to welcome back alumna Patricia M. Wald, former federal and international judge, and former member of Presidential commission on U.S. intelligence, who contributes her thoughts on the unauthorized WikiLeaks release of U.S. diplomatic cables and military documents, some of which have been published in The New York Times, the Guardian, Le Monde, El Pais, and other media)

I think that freelancers do have some duty not to do things that will inevitably result in making any rational course of foreign relations more difficult.
Though it may be difficult to draw a precise line, I do see a difference between publishing the Pentagon Papers (after the fact), which disclosed the perfidy of the Vietnam War, and just dumping all sorts of personal calumny about foreign leaders – though part of these “dumps” may well have been motivated, like the Pentagon Papers, to show the futility of our sojourn in Afghanistan. (It seems almost impossible that the dumps aren’t violative of all sorts of laws.)
The episode also illustrates how our courtship with technology can be ruinous, by making it so easy to gain access to and disseminate so much classified material through young and immature intelligence operators.

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

Read On! Zeitoun

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

Feel a bit late to the table commenting on Zeitoun, the 2009 book by Dave Eggers. Blurbs on and in the paperback edition indicate that a host of reviews named it a best book of last year. Yet it's new to me, and worth a word or 2.

In Zeitoun Eggers writes at the overlap of fiction and nonfiction, novelizing the "true story" of persons whom he's interviewed extensively. It's a technique he also employed in What Is the What (2007), an epic biographical novel/autobiography of a man who'd been a Lost Boy during the war in Southern Sudan. Zeitoun is slimmer and makes no claim to autobiography; in this author's humble opinion, the newer book works less well, and perhaps that is one reason why.

(Eggers deserves much credit for his Voice of Witness efforts to publish stories of victims of human rights violations, and for his establishment of charities, like The Zeitoun Foundation, to continue his books' good works.)

The new book's principal characters are the Zeitouns, a Syrian-born husband of Arab heritage and his Louisiana-born wife of European heritage. Their home is New Orleans. Both are Muslims --he by birth, she by conversion shortly before meeting him -- and both suffered during and after Hurricana Katrina.

Eggers tries to present the story through the eyes of this couple, but the narrational voice remains his own. Thus at times certain passages, like that which attributes to the wife a reference to Islam, Judaism, and Christianity as "not-so-distantly related branches of the same monotheistic Abrahamic faith" (p. 66), lack an authentic ring.

Perhaps it's because of the Eggers' apparent outrage at how the couple were treated. That outrage is entirely appropriate, but his desire to explain the couple and their family, to contextualize their experience, occasionally gets in the way of their story. To name another example: even if it had been made far less overtly, caring contemporary readers would get the Guantánamo comparison that underlay the husband's travails and his wife's traumatic response to them.

That said, any caring reader will profit from pondering the story of the Zeitouns. It is, as Eggers recognizes, inevitably a story of contemporary policy and practice regarding human and national security.

Go On! Beyond National Security: Immigrant Communities and Economic, Social, and Cultural Rights

(Go On! is an occasional item on symposia and other events of interest) It seems we’re seeing reactionary responses to cross-border migration everywhere —in the United States, Europe, Australia, and South Africa. But the positions of governments, employers, and non-foreign-born citizens seem to be cyclical or ambivalent, shifting with internal perceptions and misperceptions about competition over available resources and racial or ethnic cultural difference. Migration policy is also influenced by deliberate manipulation of gender and other class disparities that place downward pressure on wages and benefits, as well as environmental, economic, armed conflict, and political disasters that force migration from the home country. Finally, of course, migration flows can be shaped by the availability of unique opportunities in the host country or by the impact of unsustainable transnational trade and development policies affecting the home country.
Whatever the causes and macro- consequences of cross-border migration, immigrants and refugees are often among those who experience serious and continuing violations of economic, social, and cultural human rights . An upcoming “institute” at Northeastern University School of Law, co-chaired by Assistant Professor of Law Rachel Rosenbloom and IntLawGrrl and Professor of Law Hope Lewis, will examine economic, social, and cultural rights violations in U.S. immigrant communities. Here’s the summary:
"Beyond National Security: Immigrant Communities and Economic, Social, and Cultural Rights"

Two significant trends in the treatment of noncitizens in the United States are the focus of this two-day institute. Beginning in the mid-1990s and gaining momentum after September 11, 2001, the federal government imposed increasingly harsh deportation policies, dramatically expanded the enforcement of immigration laws, and delegated more and more immigration enforcement power to state and local police — all in the name of national security. Similarly, a wave of state and local laws has been taking aim at the rights of noncitizens in areas such as employment, housing, health, family life, and education. During the same period, however, immigrant communities and their supporters throughout the U.S. are increasingly turning to human rights approaches in response.
On October 14-15, 2010, Northeastern University School of Law's Program on Human Rights and the Global Economy (PHRGE) will bring together a core group of leading immigration and human rights advocates, scholars, jurists and activists for a two-day intensive institute to address these developments within a human rights framework. What effects have harsh deportation policies and increased immigration enforcement had on the economic, social, and cultural rights of immigrants? What roles have discrimination and minority status played in undermining economic and social rights in immigrant communities? What can be learned from community-based or cross-cultural anti-discrimination strategies? What can be learned from administrative, academic, or judicial strategies? How are encroachments on such rights increasingly being used at the sub-national level as a tool of immigration enforcement? How can human rights strategies best be used to counter those effects?
Public Events
Public Roundtables will be held on Thursday, October 14,2010, at 11:45 a.m. and on Friday, October 15, 2010 at noon.
Confirmed institute participants include Ana Avendano (AFL-CIO), Jacqueline Bhabha (Harvard University), Arlene Brock (Ombudsman of Bermuda), Margaret Burnham (Northeastern University School of Law), Muzaffar Chishti (Migration Policy Institute, New York University), Ellen Gallagher (U.S. Department of Homeland Security), Wade Henderson (Leadership Conference on Civil Rights and Human Rights), Marielena Hincapie (National Immigration Law Center), Nancy Kelly (Greater Boston Legal Services), Anjana Malhotra (Seton Hall School of Law), Susan Ostrander (Tufts University), Janis Roshuevel (Families for Freedom), Rinku Sen (Applied Research Center & ColorLines), Aarti Shahani (journalist), Jonathan Todres (University of Georgia School of Law), Paul Watanabe (University of Massachusetts, Boston), John Willshire-Carrera (Greater Boston Legal Services).

The institute will be followed by a workshop on "Bringing Human Rights Home to Immigrant Communities in Massachusetts" on Saturday, October 16, 2010, organized by Northeastern's Human Rights Caucus and other student groups. The Saturday workshop is also open to the public. For further information and questions about disability access, please contact events coordinator Jackie Davis.

Go On! More ABA intlaw sessions

(Go On! is an occasional item on symposia and other events of interest) In addition to the free session on the international death penalty about which we've already posted, other complimentary programs of intlaw interest are scheduled in tandem with the upcoming American Bar Association annual meeting in San Francisco.
According to an e-mail just received from the ABA Standing Committee on Law and National Security, here are complimentary events (caveat: not always so flagged in the full ABA program) that the section has planned, in cosponsorship with the Section of International Law and a number of others:

Friday, August 6
► Immigration Reform: Court Reform and Beyond, 2-4 p.m., Moscone Center West, 747 Howard Street, Second Floor, Room 2009. Discussing various legislative and administration proposals will be Chief Counsel Roxana Bacon, U.S. Citizenship and Immigration Services; Director Lucas Guttentag, American Civil Liberties Union Immigrants' Rights Project; Judge Dana Leigh Marks, President of the National Association of Immigration Judges; and Deputy Assistant U.S. Attorney General Juan Osuna, Chair of the Board of Immigration Appeals. Karen T. Grisez, Chair of the ABA's Commission on Immigration, will moderate.
► Cyber Security, Law and Liability - Thieves, Spies and Hostile Armies, 3:45-5:15 p.m. Moscone Center West, 747 Howard Street, Room 2022. Risks of and strategies to combat cyber-insecurity will be discussed by: Stewart A. Baker, former Assistant Secretary for Policy Department at the U.S. Department of Homeland Security; Pacific McGeorge Law Dean Elizabeth Rindskopf Parker; and Council of Foreign Relations Fellow Robert K. Knake. Harvey Rishikof, who heads the ABA's national security standing committee, will moderate.

Saturday, August 7
► Standards in International Law: Anticipatory Self Defense and WMD Programs - The Use of Lethal Force, 8:30-10 a.m., Moscone Center West, 747 Howard Street, Room 2020. Discussing preemptive strikes, U.N. Charter obligations, and other use of force issues will be discussed by Army Col. W. Renn Gade; Professor Ruth Wedgwood (Johns Hopkins); Deputy Director Leonard S. Spector, James Martin Center for Nonproliferation Studies; and Professor Orde Kittrie (Arizona State). Commander Chris Bidwell, National Security Counselor for the Defense Threat Reduction Agency at Ft. Belvoir, Virginia, will moderate.
► Careers in National Security Law, 10:30 a.m. to 12:15 p.m., Marriott Marquis, Golden Gate Hall, C1, B2 Level, 55 Fourth Street. Addressing private- and public-sector job growth in national security law and ways to find such work will be Lt. Colonel James Durant, Deputy Head of the Air Force Academy's Department of Law; Professor Michael Greenberger (Maryland); and Texas Tech law student and Iraq War veteran Jeff Mustin. Andrew Borene, Manager of Intelligence Community Programs at LexisNexis, will moderate.
For the full program of ABA annual meeting events is here.

Guest Blogger: Daphne Eviatar

It's IntLawGrrls' great pleasure to welcome Daphne Eviatar (left) as today's guest blogger.
As a New York-based Senior Associate in the Law & Security Program of Human Rights First, Daphne investigates and reports on U.S. national security policies and practices and their human rights implications.
She's both a lawyer and a journalist, having earned degrees at Columbia University's Graduate School of Journalism, New York University School of Law (where she's also taught law & journalism), and Dartmouth College. She was a 2005 Alicia Patterson Foundation fellow, a 2003 Pew International Journalism fellow at Johns Hopkins University's School for Advanced International Studies. Following law school, Daphne clerked in San Diego for Judge Irma E. Gonzalez, U.S. District Court for the Southern District of California, and in Philadelphia for Judge Dolores K. Sloviter, U.S. Court of Appeals for the Third Circuit.
She's published widely on law, human rights, and economic developments (prior IntLawGrrls post), as a former legal correspondent for The Washington Independent, also in media such as The New York Times, Washington Post, Newsweek International, and Harper's. (Her Huffington Post contributions are available here.) And Daphne's been interviewed by a number of broadcast outlets, including The Rachel Maddow Show.
In her guest post below, Daphne provides a critique of a recent federal appellate decision respecting detainees at the U.S.-run internment facility at Bagram, Afghanistan.
Heartfelt welcome!

'Nuff said

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

To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world — including those, such as Israel’s, that face security concerns equal to or greater than ours — has closed its main entrance to the public. And the main entrances to numerous other prominent public buildings in America remain open. I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.

-- Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, in the Statement Concerning the Supreme Court’s Front Entrance they released yesterday. As is apparent from this final paragraph, the 2 invoked global context in explaining opposition to the decision to close the marble-stepped main entryway of the United States' highest court. From today on, visitors must enter at the much less august side door.

Parliamentary Privilege and National Security in Canada

(We welcome IntLawGrrls guest/alumna Noemi Gal-Or back for this guest post. Noemi, in turn, extends her thanks for the invitation to contribute to the blog.)

That the French saying ‘à la guerre comme à la guerre’ doesn’t fit democracy ‘à la canadienne’ was made clear this week in the ruling by the Hon. Peter Milliken, Canada’s Speaker of the House of Commons, in the Afghan detainees case. Minister Milliken found that Parliament has the right to access uncensored documents on the case because

[t]he house has long understood the role of the Government as ‘defender of the realm’ and its heavy responsibilities in matters of security, national defence, and international relations. Similarly, the Government understands the House’s undoubted role as the ‘grand inquest of the nation’ and its need for complete and accurate information in order to fulfill its duty of holding the Government to account.

Accordingly, he ordered government to devise within two weeks a method of information sharing that also guarantees the protection of legitimate national security concerns.
The Afghan detainees case has been brewing for a long time. It concerns allegations that the Canadian Forces in Afghanistan have transferred individuals detained by them to the Afghan local authorities, knowing that detainees, including child-detainees, were facing the likelihood of torture. The Canadian government has been challenged with such allegations in the federal court by Amnesty International Canada and the British Columbia Civil Liberties Association. More disturbing to the government, however, were the allegations made by one of its employees, Richard Colvin of the Department of Foreign Affairs and International Trade, posted in Afghanistan from spring 2006 to early fall 2007. Mr. Colvin studiously communicated his related IHL concerns to his supervisors. The legal context is broad, including classic IHL documents as well as post-9/11 Afghanistan specific material and bilateral Canada-Afghanistan agreements concerning the transfer of the detainees.
A previous war-related Canadian scandal dates back to 1992-93 when, during the United Nations peacekeeping mission in Somalia, IHL violations by members of the Canadian Forces were followed by the Force’s withholding of information from the public as well as altering information. A full and open public inquiry was consequently established leading to the 1995 disbanding of the prestigious Canadian Airborne Regiment.
Unlike the Somalia debacle, the Afghan detainees affair has triggered a fierce and messy political struggle between opposition and government. While in the Somalia case, it was one organ within one ministry (Department of National Defence) that was found responsible for the system’s irregular performance, in the Afghan detainees case, the re-calibration of the entire system of government in matters national security is at stake. Mr. Milliken’s ruling, which represents the most recent chapter in the Afghan detainees saga, has been referred to as 'historic' in reminding Canada and its government that the essence of democracy hinges on the separation of powers.
While in itself, the Canadian Afghan detainees case is not a rarity in the international post 9/11 context of armed conflict, the Milliken ruling nevertheless is. It represents a fine, succinct, and explicit affirmation of the standard to which a democracy remains bound even in times of serious threat to national security. In its ‘simplicity’, the ruling serves as a lightning rod reminding that democratic resilience is tightly connected to jus in bello. Therefore, the Milliken ruling is relevant to the democracies fighting the GWOT in Afghanistan, but also to whenever and wherever they are engaged in armed conflict and preoccupied with matters concerning national security.

Mixed week on renditions accountability

This week saw two contrasting results emerging from courts in the United States and Italy regarding extraordinary rendition:

► In the United States, the case of Maher Arar (right) was once more rejected by the US Court of Appeals for the Second Circuit. (prior IntLawGrrls posts here)

► In Italy, however, 23 CIA agents were convicted in absentia in relation to their involvement in the ‘snatching’ of Egyptian Osama Moustafa Hassan Nasr from the streets of Milan in 2003. (prior IntLawGrrls posts here and here)

The contrast in the courts’ approaches in these cases could hardly be more pronounced.
In Arar (opinion available here), the Court refused to allow Canadian national Maher Arar to sue the United States for sending him to Syria where he was tortured because Congress had never expressly authorised such suits. Arar therefore failed to create what is known as a Bivens action, i.e. an action for breach of constitutional rights, in relation to extraordinary rendition. This was because, the Court held, the creation of a Bivens action in this respect would have implications of foreign policy and security activity. Congress could, of course, create such an action by statute but the Court would not do so itself. There is little doubt that this will be appealed.
In Italy, in contrast, Judge Oscar Magi of the Fourth Chamber of the Court of Milan appeared to have little hesitation in convicting the 23 Americans for their involvement in rendition although there were a number of others who were not convicted as a result of diplomatic immunity and the withholding of evidence on national security grounds. This case is sure to be appealed, and no sentences are executed in Italy until all appeals are completed, but in any case the agents are not in custody. The US State Department expressed its disappointment at the verdict.
What is striking to me is the contrast in the approach of the courts in both of these cases. Although the Italian decision is available only in Italian and I am therefore relying on newspaper reports, it would appear that the judge was not swayed by arguments relating to the institutional appropriateness of judicial decision-making on matters of this nature. These kinds of arguments are often made in order to try to insulate so-called ‘security’ or ‘foreign affairs’ activity from judicial oversight and scrutiny, the claim being that deciding on such matters could have foreign affairs implications and is therefore inappropriate as foreign affairs are an executive function. Certainly these kinds of arguments seem to have formed part of the decision-making in the Second Circuit’s decision in Arar.
Where these kinds of arguments are acceded to there is the danger that executive action becomes absolutely unimpeachable through judicial means and maintenance and re-establishment of the rule of law is therefore reliant on parliamentary (or so-called ‘democratic’) accountability mechanisms which, as I argue here in contradistinction to my co-author Fergal Davis, I am simply not convinced can work.

As a fan of judicial muscularity in relation to security-motivated counter-terrorist action I would certainly favour the approach of the Italian court to that of the 2nd Circuit.

(Cross posted at Human Rights in Ireland)

Write On! National security @ AALS

(Write On! is an occasional item about notable calls for papers.) The Section on National Security Law of the Association of American Law Schools is calling for papers for AALS' 2010 Annual Meeting this January in New Orleans, Louisiana.
The papers will be presented at the Section's session entitled "Barbarians at the Gate (or Within?): New Developments in the Detention and Prosecution of Terrorist Suspects," to be held from 10:30 a.m. to 12:15 p.m. on Friday, January 8, 2010.
The Section's call begins:

After waging the Global War on Terror for almost a decade, the United States has detained and/or prosecuted numerous foreign and domestic terrorist suspects in varied venues and under disjointed trial processes, depending upon the national status or foreign allegiance of the individual suspect, circumstances of capture, or applicability of the Geneva Conventions. The Obama Administration appears committed to bring order to the delivery of justice for those who find themselves detained and to regularize their treatment.

To aid the panel's exploration of these issus, the Section (on whose Executive Committee yours truly is proud to serve) seeks papers on any related subject. At least one panel member will be selected from the call. Submissions from junior scholars, minorities, and women are particularly encouraged. The selected paper will be published in the Journal of National Security Law & Policy, the Section’s peer-reviewed journal.

Deadline for submission of papers and/or abstracts of at least 750 words (in PDF or Word format, sent to Professor Mary-Rose Papandrea, Boston College, at maryrose.papandrea@bc.edu) is Friday, September 25, 2009. Any questions about the call itself should be directed to Section Chair, Professor Michael J. Kelly of Creighton University, at MichaelKelly@creighton.edu.

(For other AALS calls for papers, check out our Write On! series)

Write On! Intersection of national security, human rights & international law @ AALS

(Write On! is an occasional item about notable calls for papers.) Here's a chance to take part in a program -- at AALS' 2010 Annual Meeting this January in New Orleans, Louisiana -- that will examine a particularly vibrant intersection of law. It's a cooperative effort by 3 sections of the Association of American Law Schools: the Section on National Security Law, chaired by our colleague Michael J. Kelly; the Section on International Human Rights, for which IntLawGrrl Christiana Ochoa serves as Chair; and the Section on International Law, for which yours truly has that honor this year.
We three sections are calling for papers to be presented at a cosponsored program, entitled "Cross-Currents in International Law, Human Rights Law and National Security Law," to be held from 9 to 10:45 a.m. on Sunday, January 10, 2010.
Here's the key information from our call for papers:

Recent years have seen unprecedented interactions among three areas of law: Human Rights Law, International Law, and National Security Law. A Selection Committee comprising one officer of each section welcomes abstract submissions from all scholars, with preference given to authors who belong to at least one of these AALS sections. The Committee also will give preference to papers that highlight the cross-section among two or more of these fields, and will endeavor to have a cross-section of such cross-currents represented at the session.

(Note that you do not need to claim status as a "junior" scholar in order to respond.)

Deadline for submission of abstracts no longer than 5 doublespaced pages -- e-mailed in Word or PDF format to Professor Kelly at MichaelKelly@creighton.edu -- is Friday, September 18, 2009.

Please join us!

(For other AALS calls for papers, check out our Write On! series)

Write On! "Comparative Constitutional Law: National Security Across the Globe"

(Write On! is an occasional item about notable calls for papers.) Pace Law School in White Plains, New York, has issued the following call for papers:

CALL FOR SUBMISSIONS
Pace International Law Review is planning a symposium entitled Comparative Constitutional Law: National Security Across the Globe to be held in November of 2009. The day-long symposium will feature multiple panelists and guest speakers. The editors of Pace International Law Review invite proposals for articles, essays, and book reviews from scholars, researchers, practitioners, and professionals. Contributions to be considered for presentation at the symposium and subsequent publication or for publication only.
SUBMISSION INSTRUCTIONS
Please submit proposals of no more than 500 words to pilr@law.pace.edu by June 30, 2009. All proposals should include the intended author’s name, title, institutional affiliation and contact information. The proposals should address issues pertinent to the interrelationship between national security concerns and constitutional law of a particular nation or nations. Article proposals that provide a comparative analysis of issues and concerns faced by various nations are preferred. The proposals should be as thorough as possible and may include suggestions for other panelists who experts in the proposed topic.
Book review proposals also should include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer’s expertise or any relationship with the author). All authors are welcome, but not required, to submit a CV.
We expect to make offers to the selected guest speakers in August, 2009. We encourage clear, concise, and an accessible proposals for articles, essays and book reviews that will interest lawmakers, attorneys and students. All proposals will be
considered for publication even if not selected for the symposium. Complete manuscripts for work that will not be presented at the symposium will be due by August 31, 2009.

Gag orders unconstitutional

Kudos to the ACLU, whose case Doe v. Mukasey resulted in the 2nd Circuit Court of Appeals' striking down Patriot Act provisions that impose gag orders on those who receive national security letters. A national security letter (NSL) is a document that allows the FBI to obtain information about you without first getting a warrant from a judge, which means without your 4th Amendment rights against unreasonable search and seizure being protected. Not surprisingly, after the Patriot Act made it easier to use national security letters, their use - and abuse - increased dramatically. One of the problems in challenging NSLs has been the gag order (image credit) that accompanies it - the recipient may not tell anyone they've received the NSL. In Doe v. Mukasey, the recipient of the NSL represented by the ACLU is an internet service provider who is still subject to a gag order after more than 4 years, even though the FBI was no longer seeking the information it had requested. As a result, the ACLU cannot reveal their clients' name and the provider cannot say it received the NSL
The court invalidated provisions that required NSL recipients to initiate judicial review of gag orders and limited that review. It held that the government must bear the burden of going to court to justify silencing NSL recipients, and that the limits placed on judicial review essentially required the courts to defer entirely to the executive branch. Such deference runs counter to "well-settled First Amendment standards and deprive[s] the judiciary of its important function as a protector of fundamental rights," according to Arthur Eisenberg, Legal Director for the New York Civil Liberties Union. As a result of the ruling, the government will have to justify the gag order on this NSL recipient.

A gender-balanced natsec sextet

A photo montage is worth a whole lot of words: For the 1st time in history, the President's national security leadership is about to comprise an equal number of women and men. (photo credit)

Yesterday President-Elect Barack Obama announced that he'd seek the Senate's confirmation of the 6 persons above as his key advisors on issues of national and global importance.

Most media attention has been paid to Obama's appointment of his chief rival for the Democratic nomination, U.S. Sen. Hillary Clinton (D-N.Y.) (top row, middle) to be Secretary of State. It's an audacious, inspired choice. On account of both her years in the Senate and her years as 1st Lady, Clinton's been to and met with many of the leaders who're soon to be the object of her diplomatic endeavors. At home, it must be noted, Clinton's immediate (Condoleezza Rice) and recent (Madeleine Albright) predecessors are women. The same may be said of counterparts abroad: today women serve as the Foreign Minister in 24 countries besides the United States.

Among those slated to join Clinton in the Cabinet is Gov. Janet Napolitano (D-Ariz.) (bottom row, left), tapped to be the new Secretary of Homeland Security. As we've posted, she's also served as U.S. Attorney for the District of Arizona and as Arizona's Attorney General. She'll inherit the daunting task of bringing to maturation a department birthed post-9/11 as an amalgamation of agencies in charge of counterterrorism, disaster relief, and border control, among many other bailiwicks.

Dr. Susan E. Rice (bottom row, right) is set to become U.S. Ambassador to the United Nations, thus heading the U.S. Mission to the United Nations in New York. Rice will be the 3d American woman to hold the post; the others were Madeleine Albright and Jeane J. Kirkpatrick. And she'll follow a legion of women who've been their country's chief U.N. representative. During the tenure of U.S. President Bill Clinton, Rice served both in the State Department, as U.S. Assistant Secretary of State for African Affairs, and at the White House, as the National Security

Council's Special Assistant to the President and Senior Director for African Affairs and as Director for International Organizations and Peacekeeping. As we've posted, she was a key foreign policy advisor to Obama during his campaign. A onetime Rhodes Scholar who earned her Ph.D. in international relations from Oxford University, Rice has also been a Senior Fellow in the Foreign Policy and Global Economy and Development Programs at the Brookings Institution.

Rounding out the natsec team: Eric Holder (top row, left), nominated to be Attorney General; retired U.S. Marine Corps General Jim Jones (top row, right), to be National Security Advisor; and Dr. Robert Gates (bottom row, center), the subject of another IntLawGrrls post today, slated to remain as Secretary of Defense.