How 'bout a women's legal history trial?

A prince is about to stand trial for murder.

He's Hamlet, fatal assailant of the meddlesome man destined (if Ophelia had her way) to become his father-in-law.

At issue: given the welter of woe in which Shakespeare situated the troubled Dane, is the prince mentally competent to face judgment?

"The Trial of Hamlet" will take place January 31 at the University of Southern California in Los Angeles. (here for tickets & image credit) Justice Anthony M. Kennedy, who created the play, will preside. A jury including celebs like Helen Hunt will decide.

Karen Wada of the Los Angeles Times properly places the staging in a Court tradition, writing that "[i]n 1987, for instance, three high court jurists heard arguments over who really wrote Shakespeare's plays." (On continuing high court furor over the question, see this article by Jess Bravin.)

Blog readers no doubt also are familiar with the many trials of this sort staged by the American Bar Association.

So here's a thought:

How 'bout retrying some signature event of women's legal history? (And see here and here.)

Jumping to mind are 2, both involving IntLawGrrls foremothers:

► The 1873 conviction of Susan B. Anthony (by a U.S. Supreme Court Justice) for the offense of illegal voting.

► Any number of 1917 jailings -- at times brutal -- of Alice Paul, Lucy Burns (left), and their National Woman's Party colleagues for the "direct action campaign" against U.S. entry into World War I. As IntLawGrrls alumna Catherine Lanctot has posted, they took that campaign to "the very doorstep of the President of the United States, Woodrow Wilson."

Additional nominations welcome.

Guest Blogger: Nancy Amoury Combs

It's IntLawGrrls' great pleasure to welcome Dr. Nancy Amoury Combs (right) as today's guest blogger.
Nancy's the 2009-11 Cabell Research Professor of Law at William & Mary Law School in Williamsburg, Virginia, which she joined in 2004 and where she teaches Human Rights Law, International Criminal Law, International Law, and Transitional Justice, all areas on which her scholarship touches. In her guest post below, Nancy discusses her just-published book on fact-finding by international criminal tribunals.
She holds a Ph.D. from Leiden University in the Netherlands. Her J.D. is from the University of California-Berkeley, where she served as Articles Editor of the California Law Review and received the Thelin Marrin prize for graduating 1st in her class. After law school, she clerked for Judge Diarmuid O'Scannlain, U.S. Court of Appeals for the Ninth Circuit, and U.S. Supreme Court Justice Anthony M. Kennedy. She also earned a Certificate from the Hague Academy of International Law, and served as legal advisor at the Iran-United States Claims Tribunal in The Hague. Nancy was graduated summa cum laude with a B.A. in philosophy from the University of Portland in Oregon.
Along with IntLawGrrls' guests/alumnae Margaret deGuzman, Yvonne McDermott, and Jenia Iontcheva Turner, Nancy serves as an Expert Researcher for the Netherlands-based International Expert Framework on International Criminal Procedure. Our distinguished guest/alumna, Judge Patricia M. Wald, belongs to the IEF Advisory Board.
Before attending university, Nancy owned and operated a chimney sweeping business.
Heartfelt welcome!

Which GTMO trial plan best serves U.S. legal tradition? U.S. legal tradition.

U.S. Senator Dianne Feinstein (D-Cal.) (right), Chairman of the Select Committee on Intelligence, has voiced her strong support for trying suspected terrorists in federal courts, before civilian judges sitting in courthouses located in the country's 50 states.
Feinstein's op-ed in yesterday's Los Angeles Times adopted an almost mocking tone, concluding its listing of "the flurry of guilty pleas this year by high-profile terror suspects," who "now face maximum terms of life in federal prison -- where there is no possibility of parole," with this:

So much for the claim that our federal courts aren't up to the job.

The op-ed went on to cite statistics demonstrating the efficiency of these courts, which have concluded cases involving more than 400 terrorism suspects in the last 8 years. That's quite in contrast with the military commissions at Guantánamo:

Since 9/11, only four Guantanamo detainees have been prosecuted in military commissions. Two of them received light sentences and are now free.

In the view of Feinstein, who 3 years ago advocated transferring all detainees stateside and trying them before "a regularly-constituted court," the "lopsided statistics" mean that, almost always, civilian federal courts are to be favored.
This new avowal of support for the decades-old American tradition with regard to terror cases is much needed.
Feinstein's op-ed alluded to an absence of current debate. Curious, given the publication of 2 Washington Post op-eds on the issue in the last 5 days. Both advocated positions to the right of Feinstein:
► On the same day Feinstein published in the Times, the man whom she helped to confirm as Attorney General in 2007, Michael B. Mukasey (left) (prior IntLawGrrls posts), came out hard against another proposal to try all GTMO suspects before Article III judges. (He himself once was a life-tenured judge in accordance with Article III of the U.S. Constitution, serving on the U.S. District Court for the Southern District of New York from 1987 to 2006). Mukasey contended that such trials would: not jibe with the constitutional requisite of a jury trial; violate "'the rule of law'" as codified in the Military Commissions Act of 2006; and impose on prosecutors undesirable evidentiary burdens.
Mukasey's op-ed seemed to accept that the GTMO commissions have had "mixed results," attributing this

to military courts' unfamiliarity with the conventions of conspiracy law, which appears to account, for example, for the finding that Osama bin Laden's driver was not substantially blameworthy even though he bore principal responsibility for bin Laden's physical safety and, like those who serve similiar functions for organized crime bosses, had to have been among his most trusted aides.

Not only does this assessment run counter to evidence at the GTMO trial of that driver, Salim Ahmed Hamdan, but it also fails to note that in view of 4 Justices of the U.S. Supreme Court in Hamdan v. Rumsfeld (2006), conspiracy is not a lawful charge. An equal number of Justices disagreed. Justice Anthony M. Kennedy reserved decision, leaving the question wide open as a matter of U.S. law (far less so as a matter of the international law of war, whose tradition does not recognize the charge).
Mukasey concluded by extolling military commissions proceedings at Guantánamo as "remote, secure, and humane," with security "unparalleled anywhere on the mainland," and an "elaborate press gallery." (My own December 2008 observations on same were rather different; see here and p. 9 here.)
► What provoked Mukasey's ire was not a call to close GTMO, but rather a bid to bestow on that Cuba-based naval base its own federal court.
The title of last Friday's Post op-ed said it all: Try Sept. 11 suspects in the U.S. District Court for Guantanamo. Each of its 2 authors is a former judge: Eugene R. Sullivan (near right), Chief Judge of the U.S. Court of Appeals for the Armed Forces, an Article I court (from 1990 to 1995), and Louis J. Freeh (far right), like Mukasey once an Article III judge in Manhattan and, more recently, Director of the Federal Bureau of Investigation (1993-2001).
The authors of this op-ed applauded the Obama Administration decision to seek a federal district court trial for Khalid Sheikh Mohammed and 4 other Guantánamo detainees charged in connection with the attacks of September 11, 2001. But they contended that holding the trials Stateside "is no longer an option for a host of political and practical reasons," adding that the GTMO commissions "are fatally flawed." Hence, their idea: cast a statutory net to include the base within a jurisdictional map of Manhattan, traditional home of S.D.N.Y., just as farflung sites like Wake Island are deemed part of the District of Hawaii. Or create a new D.GTMO. Sullivan and Freeh foresaw "immense benefit" from this hybrid.
The best choice?
None of the above.
► Mukasey simply seeks More Of The Same. More confusion about critical issues like availability vel non of the death penalty, still, as Attorney General Eric Holder recognized, a question mark in any military commission proceeding against KSM et al. More escalation in cost, more inconvenience to counsel, more keeping of the public from full access to the proceedings. More boycotts like that just announced by Omar Khadr. More litigation of every aspect of every proceeding.
Mukasey's mind-boggling idea for yet another newfangled court, "perhaps presided over by Article III judges but with juries drawn from the military," surely would set off even More.
► Sullivan and Freeh would supplant one practical/political challenge with another that has little to commend it.
Put to one side the oddity of Congress sending appeals from GTMO trials to the federal appellate court in New York even though appeals from GTMO habeas now go to its counterpart in Washington. Put aside too that D.GTMO would be no less costly nor inconvenient than the current system. (The authors envisioned "impaneling an anonymous jury in Manhattan and transporting the jurors to Guantanamo Bay for service.")
Consider only the import of such an innovation.
For the 1st time in U.S. history, an Article III court would have its permanent seat in an armed camp. Public oversight would be subject to Defense Department edict -- as, controversially, it is now. Not just jurors but all participants -- even judges -- would effectively be sequestered. The risk is evident that such circumstances would so tip the balance as to preclude fully fair trials. And given the ostensible justification -- stated fears of trying these particular defendants on American soil -- the changes would undermine the authority and legitimacy of all federal courts in the United States.
► Feinstein's op-ed demonstrated that those courts well deserve the authority and legitimacy they have earned over the course of 2 American centuries. Yet it also falls short, for it allows that some detainees yet might be tried before military commissions. Leaving the GTMO courtroom door even a bit ajar creates a foothold for proposals like those in the other op-eds.
Meanwhile, persons captured as many as 8 years ago remain in an offshore site of U.S. military power, uncharged and untried, the crimes attributed to them unresolved.
That result is not fair. Not fair to detainees, not fair to victims and their loved ones, not fair to the public at large.
The time is well passed to treat the terrorism suspects of today by the same processes that the likes of Ramzi Yousef, Omar Abdel Rahman, and Manuel Noriega have faced.
It is time to return without exception to American legal tradition.

Answers to (Judicial) Diversity Quiz

Answers to the (Judicial) Diversity Quiz above:

(1) Sandra Day O'Connor, educated at Stanford both as an undergraduate and law student. At right is Justice O'Connor's official portrait (note the pink blouse), now hanging in the ground-floor gallery at the Court.

(2) As posted, Ronald Reagan nominated O'Connor in 1981.

(3) Reagan, a 1932 graduate of Eureka College in Illinois, is the last U.S. President not to have attended Harvard or Yale. This differently schooled President also nominated 2 others to the high bench who were not products of Harvard or Yale: Robert H. Bork (University of Chicago; Chicago Law) and Douglas H. Ginsburg (Chicago; Cornell Law). Neither was confirmed. In February 1988 the vacancy was filled by Anthony M. Kennedy (Stanford; Harvard Law), whom Justice Harry Blackmun (Harvard; Harvard Law) thus welcomed to his "good old no. 3" club. The 2005 nomination by President George W. Bush (Yale; Harvard MBA) of another person of diverse schooling, his White House Counsel, Harriet Miers (Southern Methodist University; SMU Law), also failed. (A chronology of all nominations to the Supreme Court is here.)

Bonus question: Charles Evans Whittaker, who served on the Court from 1957 to 1962, earned his law degree in 1924 from the University of Missouri-Kansas City. Whittaker served with the Court's next-most-recent-public-university-law-grad, Chief Justice Earl Warren (University of California-Berkeley). Appointing both was President Dwight D. Eisenhower, a graduate of the U.S. Military Academy at West Point, New York.

Supremes cite 'Grrls

Kudos to IntLawGrrls Connie de la Vega (right) and Michelle Leighton (left), whom the U.S. Supreme Court cited today in holding that the Constitution forbids sentencing a juvenile to life without parole for a nonhomicide offense.
The opinion for the majority in Graham v. Florida, by Justice Anthony M. Kennedy, discussed the significant -- though not dispositive -- nature of international context. In so doing, Kennedy cited not 1 but 3 works by Connie and Michelle: a book, a law review article, and the amicus brief they co-authored in the case at bar.
And the dissent added cite No. 4, as explained at bottom.
The key passage in the opinion for the Court began at p. 29 of the slip op., after the majority also comprising Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor grounded the holding exclusively on domestic law. Here it is (with virtually all cites except those to the works by Connie and Michelle omitted):

There is support for our conclusion in the fact that, incontinuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But "‘[t]he climate of international opinion concerning the acceptability of a particular punishment’" is also "‘not irrelevant.’" The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual.
Today we continue that longstanding practice in notingthe global consensus against the sentencing practice inquestion. A recent study concluded that only 11 nations authorize life without parole for juvenile offenders under any circumstances; and only 2 of them, the United States and Israel, ever impose the punishment in practice. See M. Leighton & C. de la Vega, Sentencing Our Children to Die in Prison: Global Law and Practice 4 (2007). An updated version of the study concluded that Israel’s "laws allow for parole review of juvenile offenders serving life terms," but expressed reservations about how that parole review is implemented. De la Vega & Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U. S. F. L. Rev. 983, 1002–1003 (2008). But even if Israel is counted as allowing life without parole for juvenile offenders, that nation does not appear to impose that sentence for nonhomicide crimes; all of the seven Israeli prisoners whom commentators have identified as serving life sentences for juvenile crimes were convicted of homicide or attempted homicide.
Thus, as petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, ratified by every nation except the United States and Somalia, prohibits the imposition of "life imprisonment without possibility of release . . . for offences committed by personsbelow eighteen years of age." Brief for Amnesty International et al. as Amici Curiae 15–17. As we concluded in Roper with respect to the juvenile death penalty, "the United States now stands alone in a world that has turned its face against" life without parole for juvenile nonhomicide offenders.
The State’s amici stress that no international legal agreement that is binding on the United States prohibits life without parole for juvenile offenders and thus urge us to ignore the international consensus. These arguments miss the mark. The question before us is not whether international law prohibits the United States from imposing the sentence at issue in this case. The question is whether that punishment is cruel and unusual. In that inquiry, "the overwhelming weight of international opinion against" life without parole for nonhomicide offenses committed by juveniles "provide[s] respected and significant confirmation for our own conclusions."
The debate between petitioner’s and respondent’s amici over whether there is a binding jus cogens norm against this sentencing practice is likewise of no import. The Court has treated the laws and practices of other nations and international agreements as relevant to the Eighth Amendment not because those norms are binding or controlling but because the judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

(Prior IntLawGrrls posts on the juvenile sentencing issue are available here.)

Chief Justice John G. Roberts, Jr. concurred in the judgment. He did not join the passage above, nor, indeed, any passage in the opinion for the Court.

For the dissent's response to the international law point, see fn. 11, slip op. p. 19. There you'll find this citation by Justice Clarence Thomas to another work that Connie coauthored:

[D]espite the Court’s attempt to count the actual number of juvenile nonhomicide offenders serving life-without-parole sentences in other nations (a task even more challenging than counting them within our borders), the laws of other countries permit juvenile life-without-parole sentences, see ... C. de la Vega, M. Montesano, & A. Solter, Human Rights Advocates, Statement on Juvenile Sentencing to Human Rights Council, 10th Sess. (Nov. 3, 2009) ("Eleven countries have laws with the potential to permit the sentencing of child offenders to life without the possibility of release") ....

Gender, equal protection & immigration

(IntLawGrrls is pleased to welcome back Ruthann Robson, who contributes this guest post, cross-posted from Constitutional Law Prof Blog, regarding the U.S. Supreme Court's announcement yesterday that it will review Flores-Villar v. United States. Ruthann further contributes the Go On! post below)

The question is a narrow one:

► Does decision in Nguyen v. INS (2001) permit gender discrimination that has no biological basis?

In Nguyen, the U.S. Supreme Court upheld 8 U.S.C. § 1409, which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Justice Anthony M. Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States – survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.” The majority found that the statute served two important governmental interests:

► The importance of assuring that a biological parent-child relationship exists; and

► The importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”

The Court in Nguyen relied on biological reasoning -- women give birth and men may not even realize their paternity -- and concluded:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam -- although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity, and the father obtained an order of parentage from a state court.

The Court's grant of certiorari in Flores-Villar v. United States will involve a reconsideration of Nguyen. Flores-Villar was born in Tijuana, Mexico, in 1974 to a noncitizen mother and a United States citizen father who, importantly, was 16 at the time. His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old. He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985. Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his 14th birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. Moreover, in the case of Flores-Villar, the INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
In the 2008 appellate decision in Flores-Villar to be reviewed, a panel of the U.S. Court of Appeals for the Ninth Circuit -- comprising Judges Pamela Rymer, Cynthia Holcomb Hall, and Andrew J. Kleinfeld -- upheld the statutory scheme. It held the asserted governmental interests -- avoiding statelessness, as well as assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen -- to be important. The means chosen, it also held, substantially further the objectives. The Court stated:

Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.

This “fit” will certainly be at issue before the U.S. Supreme Court.

Then-Justice Sandra Day O’Connor’s dissenting opinion in Nguyen, which was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, stressed the heightened scrutiny required by the case involving single-sex education at VMI, the Virginia Military Institute. In that judgment in United States v. Virginia (1996), a closer fit was required between the “discriminatory” means chosen and gender stereotypes. The Nguyen dissenters thus reasoned that the statute at issue in Nguyen was

paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children,

and added that it could easily have been rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement -- and not, as in Nguyen, a relationship-with-child requirement -- the “fit” may not be sufficiently tight. If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.” However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.

Balancing gender equality and citizenship will be the task for the Court -- a task which the newest Justice, Sonia Sotomayor (right), will certainly undertake.

Reflecting on the Supreme Court's consideration of juvenile life without parole ...

Since the U.S, Supreme Court heard oral argument last week in Graham v. Florida and Sullivan v. Florida, commentators have speculated on how the Justices will rule in the two controversial cases (here and here and here).
As posted last week, both cases involve juveniles who received a sentence of life without the possibility of parole in Florida for nonhomicide crimes. At issue is whether the Constitution permits this sentence for a crime committed by someone who was under the age of 18 years. (Consideration comes amid a development discussed in the post below: doubts respecting the death penalty.)
Following an amicus brief that IntLawGrrl Connie de la Vega and I submitted in the cases on behalf of Amnesty International and other groups, including the Bar of England and Wales, I was fortunate to be able to watch the oral argument last Monday.
After two hours of what was vigorous, if not sometimes caustic, questioning by the Justices of the attorneys in both cases, it was surprising that no questions were raised about global law and practice, a prominent feature of the opinion written by Justice Anthony M. Kennedy in Roper v. Simmons (2005). Yet, as was the case in Roper, the United States is isolated among other nations of the world as the only country that imposes this sentence on a juvenile, for any crime.
Below are a few excerpts of remarks not widely reported that may be telling about the issues of interest to the Justices.. The articles reported above captured the gist of the joint reasoning that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. pursued, in what appeared to be an attempt to win over Justice Kennedy and others to adopt a proportionality approach in the sentencing of juveniles. Roberts and Alito agreed both that kids are different from adults and that age would be relevant, but they sought to attain agreement that some juveniles deserve to receive the life without parole sentence and thus sentencing could be determined "proportionate" on a case by case basis. In relation to the questioning of Graham’s attorney and later the attorney for the state of Florida, the following interchanges were interesting:

JUSTICE ALITO [right]: And you are making a per se argument, no? You can imagine someone who is a month short of his 18th birthday, and you are saying that, no matter what this person does, commits the most horrible series of non-homicide offenses that you can imagine, a whole series of brutal rapes, assaults that renders the victim paraplegic but not dead, no matter what, the person is sentenced shows no remorse whatsoever, the worst case you can possibly imagine, cannot -- that person must at some point be made eligible for parole. That's your argument?
MR. GOWDY [Graham's attorney]: Your Honor, that's -- that's correct. A life -- yes. A life with parole sentence would be constitutional, and that may mean that person you describe still spends his entire life in prison, but life with parole gives some hope to the adolescent who has an inherent capacity to change. It gives him some hope that later in time he may be released.
JUSTICE KENNEDY [right]: What -- what would you do if there were a crime spree and there were different jurisdictions?
One jurisdiction imposes for 35 years, the next jurisdiction for another 35 years, to be served consecutively.
MR. GOWDY: Well, Your -- Your Honor, I -- I think the -- that you would get into the question about whether that sentence is the equivalent of life without parole, and there could be an argument made that if you -- obviously, if you sentence someone to 150, 200 years, there is no conceivable hope of ever
release, 150 years without parole.

Here's more, during questioning of the attorney for the State of Florida:

JUSTICE KENNEDY: If we look just at deterrence, my initial instinct is that the difference in life and life without -- life with parole and life without parole is just not a factor in deterrence. I -- I don't know how I'd confirm that one way or the other, but let's -- let's assume that there is some basis for that intuition. Then, insofar as the deterrence prong is concerned, since it's not a deterrent, and if you assume that there is rehabilitation, what is the State's interest in keeping the accused that -- the -- the defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger? What's the State's interest?

And then, during rebuttal by Graham's attorney:

JUSTICE KENNEDY: Why does a juvenile have a constitutional right to hope, but an adult does not?
MR. GOWDY: Because the juvenile is different than an adult. A juvenile is less culpable. He's -- we know over time he will change and -- and potentially reform, as opposed to an adult.

Oral argument transcripts in these juvenile LWOP cases can be found here.

ABA to honor Zimbabwean lawyers

This coming Saturday, August 1, at a luncheon meeting in Chicago, the Rule of Law Initiative of the American Bar Association will honor Zimbabwe Lawyers for Human Rights with its 2009 Rule of Law Award.
The Zimbabwean group -- a public interest litigation organization operating in one of Africa's most treacherous environment's for human rights defenders -- is being recognized for its efforts at advancing the rights of persons in the country. Its impressive portfolio includes:
► Representing indigent individuals who have been illegally denied citizenship;
► Providing emergency legal aid to detained human rights defenders;
► Training legal practitioners, teachers, and traditional leaders on human rights; and
► Preparing lawyers for a future transitional justice project.
In addition to honoring the courageous lawyers and advocates who protect human rights in Zimbabwe, the giving of this award also provides an opportunity to reflect upon the state of human rights in that country in recent years:
► In June 2008, the U.N. Security Council condemned Zimbabwe's intimidation of political opponents, which resulted in the deaths of opposition activities and displacement of thousands. Despite the creation of a coalition government between President Robert Mugabe's Zanu-PF and the Movement for a Democratic Change leader earlier this year, Zimbabweans continue to struggle against an oppressive Mugabe regime in their quest to realize their human rights.
► On June 18, 2009, four members of the nongovernmental organization Women of Zimbabwe Arise were detained by police for peacefully demonstrating in commemoration of World Refugee Day. The women were assaulted while in custody, and then denied medical treatment for their injuries.
► On July 13, 2009, Mugabe supporters disrupted a national conference to draft a new Constitution, which would include provisions to curtail executive power.
Established in 1994, the Rule of Law Award is granted to leaders and countries that take "significant steps towards implementing democratic and market reforms" on the domestic level. Past award recipients of the Rule of Law Award include Pakistan's lawyers and judges who protested that country's purging of its judiciary; U.S. Supreme Court Justices Stephen Breyer and Anthony M. Kennedy; and Nataša Kandić, Founder and President of the Humanitarian Law Center based in Belgrade, Serbia.
Heartfelt congratulations to the courageous members of Zimbabwe Lawyers for Human Rights and their peers!

On June 26

On this day in ...
... 2003 (5 years ago today), in Lawrence v. Texas, the U.S. Supreme Court, by a vote of 6 to 3, overruled 17-year-old precedent to hold that The Constitution's guarantee of due process forbade criminal punishment of petitioners, Tyron Garner and John Geddes Lawrence (left), for same-sex sodomy. The majority opinion by Justice Anthony M. Kennedy relied in part on foreign law -- especially, legal developments in Britain and in the European Court of Human Rights -- a feature about which I've written here. (photo credit)
... 1963 (45 years ago today), after "cheering crowds lined every foot" his motorcade passed, and before 120,000 persons in the plaza of the Schöneberg Rathaus, or city hall, at right, U.S. President John F. Kennedy "made a ground-breaking speech in Berlin offering American solidarity to the citizens of West Germany." The speech (full text here) contained these now-famous words:

All free men, wherever they may live, are citizens of Berlin, and therefore, as a free man, I take pride in the words, 'Ich bin ein Berliner.'

Boumediene & extraterritoriality

(Many thanks to IntLawGrrl Beth Van Schaack for her thoughtful posts here and here on Thursday's decision in Boumediene. My initial cut, below , was cross-posted at Slate's Convictions blog, where at the moment it's all Boumediene all the time, with a dash of Munaf for good measure.)

In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various Courts have answered in different ways. As I'd outlined here when Rasul was pending (pp. 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases, United States v. Verdugo-Urquidez (1990), might have expected that when give the chance he would reconcile the 2 lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in Reid v. Covert (1956) (concurrence), and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the Court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantánamo.

News flash: Supremes hold for detainees

Detainees at Guantánamo may challenge detention in U.S. District Courts, the Supreme Court held this morning. Justice Anthony M. Kennedy wrote for 5 members of the Court: "We hold these petitioners do have the habeas corpus privilege."

The Court unanimously held in a separate case that persons held by U.S. forces in Iraq have habeas rights as well.

You can find the full opinion inthe 1st case, Boumediene, here; in the 2d, Munaf, here.

Pretty in Pink

Scholars of constitutional and comparative law know well the story told by U.S. Justice Anthony M. Kennedy in Lawrence v. Texas (2003): in Bowers v. Hardwick (1986), then-Chief Justice Warren E. Burger was wrong to base his conclusion that the Constitution's Due Process Clause permitted criminal punishment of same-sex intimacy on the premise that such punishment was embedded in "Western civilization." Burger erred, Kennedy wrote, for the simple reason that by 1986 not only Britain, but also the European Court of Human Rights, had outlawed such punishment. Continuance of that trend among Western countries was cited as further support for a similar holding in Lawrence.
Preceding the ECHR's decision in Dudgeon v. United Kingdom (1981) had been a hard-fought battle in Northern Ireland, home to the statute that the Strasbourg Court rejected. Leader of efforts to retain criminal punishment there, notwithstanding abolition in Britain, was a political firebrand of a minister, Ian Paisley, who rallied crowds with this cry: "Save Ulster from Sodomy!"
Paisley remains political, having won the title of 1st Minister of Northern Ireland earlier this year. But he lost the Dudgeon battle: Free Derry Corner, a decades-old landmark, boasts a fresh coat of pink paint in recognition of this month's Pride celebration in Northern Ireland's 2d largest city. And an attempt to revive the old cry brought "thousands" to a Pride march in Belfast, its capital city. (photo by Peter O'Neill)
An aside on comparative constitutionalism: Though it eventually caught up with doings in Britain and Ireland, the U.S. Supreme Court neglected even in 2003 to give precise note to similar efforts by lawmakers elsewhere in Europe. Indeed, as this Le Monde article marking the 25th anniversary of those efforts indicates, France too had taken steps well before Burger put pen to paper in Hardwick.