Look On! Kids hopping trains to the U.S.

(Look On! takes occasional note of noteworthy films.) Everybody's talking about Which Way Home, the documentary about children from Central America who ride alone atop trains in their bid to make it to the United States. Directed and produced by Rebecca Cammisa, the film recently made its television début on HBO. (photo credit)
Many of us have written about unaccompanied minors; among them, IntLawGrrl Jaya Ramji-Nogales, in this post.
The United States has been particularly cognizant of the issue in recent years, inviting testimony before Congress on the perils of unaccompanied minors who were then being placed into adult detention -- that is, prison -- facilities. More recently, Congress addressed the issue within the 2008 Trafficking Victims Protection Reauthorization Act, which included several provisions directing federal funding and resources to children (most often unaccompanied) who are subjected to various forms of human trafficking.
I have not yet seen the film, but The New York Times article about the movie states that it follows several boys from Honduras, passing through Mexico on trains and hoping to enter the United States to work or meet family members there. Having written and thought a great deal about human trafficking, as have other 'Grrls, such as Janie Chuang, I cannot help but wonder what will befall these children. If they make it to the United States, will they be detained? Will they fall into the hands of traffickers? If they do not make it to the United States, Mexico will most likely deport them. If they are not wanted by their families, or are victims of domestic violence, will Honduras protect them?
Several years ago, my students and I won asylum for a child from Honduras. His case was granted with a rare written opinion, in which the judge accepted the argument that his stepfather's abuse and the Honduran government's unwillingness to protect him constituted persecution. The judge was right. We had argued that Honduras had ratified the Convention on the Rights of the Child, and in so doing had taken on affirmative obligations, but that Honduras nevertheless had failed to fulfill those obligations, ultimately leeaving our client unprotected. Typically, however, domestic violence claims have been denied in the country.
As IntLawGrrl Amy Senier posted a while back, U.S. Attorney General Eric H. Holder Jr. has decided finally to issue regulations on gender-based asylum claims. With this decision, an opportunity presents itself. Unaccompanied minors might avoid detention, find pro bono counsel and apply for special immigrant juvenile status, or even be granted asylum in the United States under the theory that their home country was unwilling or unable to protect them from domestic violence.
I look forward to seeing Which Way Home, but I look forward even more to seeing children like those depicted in this movie receiving some much-needed protection.

2¢ on interrogation review

See the last item at The New York Times' "Room for Debate" for my thoughts on the news that, as foreseen by IntLawGrrl Beth Van Schaack, Attorney General Eric H. Holder, Jr. (left) has instructed Assistant U.S. Attorney John Durham to conduct a "preliminary review" of post-9/11 interrogations by the CIA to see whether U.S. law was violated. Prompting the order was release of a 2004 CIA report.
International criminal law point of comparison:
The 1999 "internal analysis," by the Office of the Prosecution at the International Criminal Tribunal for the former Yugoslavia, into whether NATO's air strikes against Serbia violated laws of war.

Holder's Special Prosecutor

Several major news outlets reported this week that Attorney General Eric J. Holder, Jr. is considering appointing a special prosecutor to investigate the interrogation practices employed during the Bush Administration -- a move that would be contrary, perhaps, to President Barack Obama's entreaty to look forward, not backwards. (See especially the fascinating portrait of Holder's dilemma by Newsweek, the source of the Holder photo above right, as well as the Washington Post's coverage). It has been speculated that the move is at least partially motivated by the results of the CIA Inspector General report on torture that may or may not be released earlier than the promised August 31st. One name that has been floated for the position of Special Prosecutor is Assistant U.S. Attorney John Durham from Connecticut (short bio here), who, at the behest of former Attorney General Michael B. Mukasey, is already investigating the destruction of CIA tapes that depicted waterboarding and other interrogation tactics.

Holder's volte face, if he follows through on it, would do much to bring the United States back into compliance with the 1984 U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, which the U.S. joined in 1994. That treaty at Article 4(1) obliges state parties to penalize "all acts of torture":

Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

In addition, pursuant to Article 5(1), each state party is to "take such measures as may be necessary to establish its jurisdiction" over such acts when committed

• in any territory under its jurisdiction (the territorial principle of jurisdiction); or
• when the alleged offender is a national (the nationality principle of jurisdiction).

Article 12 mandates that states make immediate inquiries into the facts where

there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13 requires that victims have an opportunity to raise claims of torture to competent authorities:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

The obligations apply equally to the prohibition against cruel, inhuman and degrading treatment of punishent, a prohibition that is also set forth within the Torture Convention.
The United States implemented the Torture Convention in two ways: first, by enacting a penal statute (18 U.S.C. §2340) and second, by enacting a civil statute (28 U.S.C. §1350 note, the Torture Victim Protection Act). In addition, acts of torture and other forms of cruel treatment may be prosecuted as war crimes under 18 U.S.C. §2441. In addition to these international crimes, the Special Prosecutor could also bring garden variety criminal charges (battery) or recommend courts martial for members of the armed forces and others subject to military jurisdiction.

In terms of the international law charges:
► First: 18 U.S.C. §2340A authorizes prosecutions against U.S. nationals, but only for torture committed "outside the United States." Certainly places like Camp Delta at Guantánamo Bay and Bagram Air Base in Afghanistan are outside the territorial United States. The U.S. Supreme Court has twice ruled, however, that the U.S. Naval Base at Guantánamo is essentially within U.S. jurisdiction. (The first ruling in Rasul v. Bush (2004), extended statutory habeas rights to Guantánamo detainees. Once Congress amended the habeas statute, the Court in Boumediene v. Bush (2008), extended constitutional habeas rights to the same detainees on the recognition that the U.S. exercises "plenary control" over the naval base, even though de jure sovereignty still vests in Cuba. See here for prior blog posts on these rulings.) The question of whether detainees at Bagram Air Base, which number over 600, have habeas rights is currently the subject of litigation in Maqaleh v. Gates, 604 F. Supp. 2d 205 (D.D.C. 2009). For a discussion, see Kal Raustiala's excellent ASIL Insight. Bagram Air Base, located in an active theatre of war, exists pursuant to a lease similar to that governing GTMO, and the Obama Administration has resisted extending the Boumediene ruling to Afghanistan. This is complicated by the fact that in 2001, the USA Patriot Act of 2001 expanded the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States to include the premises of United States military or other United States Government missions or entities in foreign States. So, bases outside the U.S. were no longer "outside the U.S." within the meaning of §2340. Detention centers not on bases might still have been. The expansion of the SMTJ had the unintended, it is claimed, effect of narrowing the reach of the §2340. This anomaly was corrected by the National Defense Authorization Act for Fiscal Year 2005 (NDAA05), which prospectively amended 18 U.S.C. §2340(3) to read as follows:

“‘United States’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.”

So when and where abuses took place will determine the applicability of §2340. Certain provisions of title 18 do apply to the SMTJ, such as assault (18 U.S.C. § 113), maiming (18 U.S.C. § 114), manslaughter (18 U.S.C. § 1112), and murder (18 U.S.C. § 1111).

► Second: As an alternative to the torture statute, war crimes charges could potentially be brought under 18 U.S.C. §2441, the War Crimes Act of 1996, which applies to war crimes committed by U.S. nationals "inside or outside the United States". That statute lists torture, cruel treatment, inhuman treatment, mutilation, maiming, serious bodily injury, rape, sexual assault, and sexual abuse as war crimes. As discussed here, however, Congress, with the Military Commissions Act of 2006, amended the War Crimes Act in subtle yet significant ways that made it more difficult to prosecute abusive practices that fall short of torture.

► Finally, although the Attorney General can frame the mandate of the Special Prosecutor as narrowly as he likes -- even restricting him/her to investigate certain departments, etc. -- the Special Prosecutor can follow any leads relevant to the original mandate. This could result in a more wide-ranging investigation, especially given expansive notions of complicity liability. As a result, the special prosecutor’s investigation could implicate the architects of the detainee policy, including the lawyers who gave advice to the Bush Administration. Actual prosecutions would test arguments made in governmental memos about which types of conduct and interrogation methods constitute unlawful torture and other forms of prohibited cruel treatment. This has the potential to bring U.S. law into line with established jurisprudence from the international war crimes tribunals and human rights institutions, which have determined that many acts perpetrated upon detainees at Guantanamo and elsewhere constitute torture.

Even apart from criminal prosecutions, a full-scale investigation could produce information that would achieve some of the aims of the truth commission concept floated earlier this year by some Democrats.

(IntLawGrrls' various posts on these issues of accountability may be found here, here, and here.)

Counting on success

Rumors and commentary run rampant these days regarding President Barack Obama's nominations of our colleagues Dawn Johnsen (right) and Harold Hongju Koh (below left) and to become, respectively, the Assistant Attorney General in charge of the Justice Department's Office of Legal Counsel and the State Department's Legal Adviser.
► Last Wednesday, The Atlantic's Marc Ambinder said that Obama Press Secretary Robert Gibbs ruled out recess appointments for Koh or for Johnsen. Such appointments have been used in years past to put into office persons for whom an administration can't muster the necessary Senate votes. That should be a simple majority -- 50 votes plus, if needed, a tiebreaker vote by Vice President Joe Biden. But the word is that certain GOP Senators are blocking that procedure. Instead they're using a "hold" mechanism that requires Democrats to effect a "cloture." On the matter of cloture, which requires not 50 but 60 votes, Ambinder wrote of both Johnsen and Koh: "There simply aren't enough Democrats who will support either of them." (Not sure at all this is right. As for Johnsen, a couple Democrats are reportedly balking, but at least 1 Republican counterbalances. As for Koh, indications are that all Democrats and a handful of Republicans stand ready to vote "aye," if they'd only be permitted to vote.)
Ambinder's post endeavors to explain the roadblock by reference to the same claptrap about transnational-"ism" and reproductive rights defense that we IntLawGrrls have refuted here and here.
(Can anyone explain why these nominees' unequivocal opposition to torture works as a negative?)
► On Thursday, a story in The News Tribune of Tacoma, Washington, maintained that Johnsen's nomination to lead the top law office at Justice "is meeting stiff resistance in the Senate, stalled for a month by Republicans who say she's a polarizing figure because she aggressively criticized the Bush administration's legal rationale on torturing terrorism suspects and radical in her views on abortion rights." It quoted 2 Senators to this effect. Particularly perplexing: Texas' GOP Senator John Cornyn expressed shock that Johnsen "questioned whether the wartime paradigm that the president is the commander-in-chief was the appropriate framework of analysis for determining what the president's powers are during a time of war.'"
Quite obviously Cornyn has not read the GTMO briefs and jurisprudence that, combined with academic literature, show the position attributed to Johnsen to be shared by many in the mainstream of American law -- not to mention more than 1 Justice of the U.S. Supreme Court.
(Incidentally, when's an organization like the National Organization for Women -- better yet, the American Bar Association -- going to object to slurs like "'not qualified'" and lacks "'requisite seriousness'" (both slung by Cornyn) to describe a woman who's a constitutional law professor at a major law school, graduated Phi Beta Kappa and helped edit the Yale Law Journal, clerked for a federal appellate judge, practiced law with distinction, and already proved her mettle as the acting head of the Office she's now been tapped to lead?)
► On Friday, a Foreign Policy blog said that unnamed sources on Capitol Hill and elsewhere had said that "[a]ll State Department nominees are on hold" by action of Senator Jon Kyl (R-Arizona), reportedly "because he is not satisfied with the information he has been receiving from the administration on the progress of arms control negotiations with Russia." The post immediately backtracked by naming several State nominees who in fact were confirmed last week -- even more curiously, it makes no mention of Yale Law Dean Koh, slated to become State's top international lawyer upon confirmation.
► On Saturday, finally, a Think Progress post claimed that in an e-mail Senate Majority Leader Harry Reid "told Koh’s supporters that he will bring Koh’s nomination for a vote sometime in the next two weeks"; that is, that he will seek the cloture vote he's so far avoided calling.
Not a word in this last post about Johnsen.
Though much is murky in these posts, 1 thing remains clear: It is well past time for top officials in this new administration to step into the ring and fight for these stellar nominees. As our colleague Christopher Eisgruber pointed out this weekend, supporters of these 2 include top-tier conservative lawyers: for Johnsen, Pepperdine Law Professor Douglas Kmiec, who held the OLC job during the Reagan administration; for Koh, Kenneth Starr and Theodore Olson, respectively, the Solicitors General during the 1st and 2d Bush administrations.
In our own humble effort to prod Reid -- and Holder and Clinton and, indeed, Obama -- to do so, today IntLawGrrls launches the clocks above. The timers re-count just how long it's been since the nomination of each of our colleagues was announced
What you can do:
► Spread the word by sending this post to Facebook, Twitter, and other sites and friends, via the "Share This" link at the bottom of the post.
► Better still, contact Senators and demand a floor vote.

Here's hoping that we soon can send both timers to an early and happy retirement.

One small step for immigrants . . .

While the economic crisis may have pushed President Obama's plans for comprehensive immigration reform into next year and beyond, Democrats in the legislature are already offering a preview of good news for immigrants. Moreover, given the vast discretion awarded to the executive in enforcing immigration law, we may see a sea change in the treatment of immigrants before any immigration reform bill hits the floor of the legislature.
This Wednesday, Senator Leahy held a Judiciary Committee meeting to discuss the Uniting American Families Act of 2009, a bill that would extend those immigration benefits currently offered to married heterosexual couples to "permanent partners." The latter are defined as individuals over 18 years of age in a monogamous, financially interdependent relationship intended to be a lifelong commitment, but unable to marry. This amendment would thus allow an LGBT U.S. citizen in permanent partnership with a non-citizen to sponsor her partner for a green card and an LGBT asylee or refugee to designate his partner as a derivative recipient of his asylum or refugee status, among other benefits. The impact on LGBT couples would be tremendous, but of course, as the NY Times describes, political opponents have already reacted strongly. This will not be one of those "areas of agreement" that Obama seeks to identify; brace yourselves for a long, hard fight -- but at least it's being fought.
On the same day, Attorney General Holder confirmed that non-citizens are entitled to effective assistance of counsel in immigration hearings. This wise step vacated former AG Mukasey's decision in Matter of Compean (about which IntLawGrrl Dina Francesca Haynes posted here), less than two weeks before Obama took office, to overturn long-standing precedent establishing a framework for bringing ineffective assistance of counsel claims in immigration court. Bringing great cheer to the hearts of immigrants and proceduralists alike, Holder notes that the process used by Mukasey to overturn the ineffective assistance of counsel framework was insufficient, and seeks instead to create

one that affords all interested parties a full and fair opportunity to participate and ensures that the relevant facts and analysis are collected and evaluated.

(In the meantime, the pre-Compean framework remains in place.) While this standard may seem a bare minimum of procedural fairness, it represents a great step towards transparency and fairness in an area of law heretofore characterized by neither. Here's hoping it's the first of many such steps.

Job 1 for AG

This week U.S. Attorney General Eric Holder listed as "'probably my top priority'" getting Dawn Johnsen confirmed as Assistant Attorney General for the Office of Legal Counsel.
It's about time.
About time, that is, that a top Obama Administration official pushed publicly on this issue.
As we posted about this IntLawGrrls guest/alumna, Dawn (left) was named to head OLC, the branch of the Department of Justice responsible for giving advice on the gamut of legal issues the Executive Branch confronts, 'way back on January 5th. (photo credit) That was more than 2 weeks before President Barack Obama's inauguration, and a day before the swearing-in of the new Congress. But the upper chamber of that Congress has moved at the pace of a recalcitrant snail since then. The Senate Judiciary Committee voted favorably on the nomination, but on a narrow vote of 11 Democrats to 7 Republicans, with then-Republican Arlen Specter of Pennsylvania then abstaining. Since then, nothing -- or rather, as Legal Times' blog reports,"since then Democrats have been trying to cobble together a 60-vote bloc to end debate on her nomination in the full Senate."
That's proved a challenge -- far more than it ought to be for Dawn, whose record as an attorney and law professor is, put simply, stellar. Singing her praises is a spectrum of former Justice Department lawyers that's broad enough to include Reagan-era OLC head Doug Kmiec and his Clinton-era counterpart, Walter Dellinger. The Washington Post endorsed her.
Against her? Specter and Ben Nelson, Democrat from Nebraska, plus, according to Legal Times' blog, "Republicans, foremost among them Sen. John Cornyn (R-Texas)." (A GOP exception: Dawn's won the support of Richard Lugar, senior Senator from Indiana.)
Complaints remain those identified before:
►As legal counsel for the National Abortion Rights Action League, Dawn vigorously represented her client, and so litigated against encroachments on the law of the U.S. Constitution as set forth by the U.S. Supreme Court in Roe v. Wade (1973); and
►As a law professor and former acting head of OLC, Dawn spoke and wrote against the so-called "torture memos," the Bush-era OLC opinions that professed to give legal cover for post-9/11 detention and interrogation practices and policies.
By no means does either of these points constitute a basis for withholding confirmation.
Here's hoping that Holder -- who told a Senate appropriations subcommittee that OLC "is being run by capable layers but required the 'solidity and continuity' supplied by a Senate-confirmed assistant attorney general" -- will keep the pro-Johnsen pressure on.

Cheer the Beloved Country?

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

Many people in South Africa cheered the announcement earlier this week by Mokotedi Mpshe (top right), acting Director of South Africa's National Prosecuting Authority, that the Authority had dismissed longstanding corruption charges against Jacob Zuma, the head of the African National Congress and the likely President of South Africa after elections on April 22. Amongst those cheering the announcement were ordinary South Africans, supporters of the ANC, trade union members, and members of South Africa's Communist Party. Perhaps even former President Thabo Mbeki cheered the part of Mpshe's announcement declaring the absence of evidence linking Mbeki to wrongdoing in the Authority's prosecution of Zuma (below right).
The cheering was not universal. The announcement was loudly protested by opposition parties such as the recently established Congress of the People, the Democratic Party, and their supporters, and many ordinary South Africans. They are left wondering what it all means for South Africa’s fledgling and fragile legal system.
Americans reading the news of Mpshe's action may initially think it is merely a parallel to the recent action of U.S. Attorney General Eric Holder dismissing charges against former U.S. Senator Ted Stevens. In both situations, the chief federal prosecutor in the nation dismissed
corruption charges against a high-ranking political official, and in both instances the court having jurisdiction over the case raised questions of prosecutorial abuse. In the Stevens case, the federal court even held prosecutors in contempt for withholding evidence, while in the Zuma case the court had gone so far as to dismiss the charges on the ground, subsequently overturned, that the then-President of South Africa had influenced the prosecution.
Notwithstanding the similarities, important differences exist between the two cases:
► First, Holder, a Democrat, was not a member of the same political party as Stevens, a Republican, and thus could not be suspected of acting out of party loyalty. This can't be said of Mpshe, who is a member of the ANC and a strong supporter of Zuma.
► Second, the justification cited by Holder for dismissing the prosecution -- namely, the withholding of potentially exculpatory evidence -- was a factor relevant to whether abuse of process had occurred and whether prosecution should continue. For reasons which will be apparent later, Mpshe's justification for discontinuance left the question of relevancy hanging.
It is important, however. to recognize that it would not be possible to assess the relevancy issue had Mpshe not made available for public review the contents of the surreptitiously recorded telephone conversations upon which he based dismissal of the charge. This was an important step, and Mpshe performed a great service for the nation in taking it. The secretly taped conversations were between the former head of the National Prosecuting Authority and the chief of Scorpions, the nation's chief police force. Mpshe promised an investigation of the secret recordings of these conversations. But having verified their authenticity, he took full account of them, had them declassified, and released them for public review. He should be commended for this, and for the terms of the announcement respecting the dismissal of the Zuma charges. They include, as previously stated, clearing Mbeki of any wrongdoing, disclosing the existence of disagreement amongst his staff about the dismissal, and informing the public of the criterion he applied in determining if the charges should be dismissed. That criterion, he said, was whether prosecutors had abused the legal process.
These actions of Mpshe are good for South Africa because transparency in governmental affairs is critical for the functioning of the country's democracy.
Where Mpshe's actions fell short was in the application of his criterion for determining whether to dismiss the charges. The failure was two-fold:
► First, the tapes appear principally to show only that political considerations were interjected into the timing of the prosecution against Zuma, yet to show nothing in connection with the prosecution itself.
► Second, Mpshe didn't specify which parts of the taped conversations he regarded as evidence of an abuse of process sufficient to warrant dismissal of the charges.
From this, the only conclusion to be drawn is that for Mpshe, the mixing of political considerations with the timing of the commencement of the lawsuit constituted by itself sufficient infection of the judicial process to warrant dismissal of corruption charges against Zuma. Since there was no allegation the timing of the lawsuit had anything to do with the course, or outcome, of the trial, this is a rather surprising conclusion, and one providing little guidance to other prosecutors.
The next step is for a South African court to decide whether to accept the dismissal. However, the court may simply defer to the discretion of the prosecutor, leaving unsettled the issue of how the criterion of abuse of process should be applied in such dismissals.
What I think we can all cheer at this point is the enormous importance of the transparency Mpshe has brought to this issue, a transparency which also allows for accountability of Mpshe's action. On the other hand, Mpshe has set a precedent which may afford too much leeway for injecting politics into decisions of prosecutors on whether to dismiss criminal charges.
In some ways this decision stands as a gauge of the state of fifteen years of South African constitutional democracy; that is, there is much to commend it, but some misgiving persist.

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.