John Hutton and Heather MacDonald debate Gonzales' fitness to be AG

Read the online debate at legalaffairs.com, here.

Heather MacDonald responds to Andrew Sullivan on torture

Heather MacDonald responds to Andrew Sullivan's New York Times Book Review commentary on torture this past Sunday, in City Journal, here.

Interpreting the Scalia-Breyer debate

The transcript of the Scalia-Breyer discussion on the role of foreign law in US courts deserves careful study, and I am sure it will prove to be an enduring document for scholars, in no small part because each Justice used the occasion to go beyond the narrow question of foreign law to make a statement about his respective philosophy of judging. In Justice Scalia's case, of course, that was a restatement of his familiar views on originalism.

Justice Breyer's remarks on his philosophy of judging, however, were especially important. He reinforced the view, I think it fair to say, that his philosophy of judging is characterized by not differentiating between the Constitution and other legal texts that a judge must use in order judge. He emphasized this when he spoke about the day to day work of judges, reading briefs and, as he joked, "doing homework." For most judges - for reasons that are a matter of a philosophy of judging arising from a political philosophy that privileges the Constitution as the constitutive text binding together a political community - the Constitution and its interpretation are different from any other kind of text. The difference is in kind and not merely degree. It cuts across political views and temperments - liberal as well as conservative judges, political liberals, political conservatives, judicial liberals, judicial conservatives - see the Constitution as different in kind from other texts with which a judge must grapple.

Justice Breyer, by contrast, suggested otherwise for his philosophy of judging. The Constitution is a sacred text in our political culture, yes, and worthy of our highest respect, and so on - but in terms of its interpretation in the process of judging, it is not different from other texts. Moreover, it is mediated in reaching a judge by the process of litigation itself - lawyers' briefs, lower court rulings, etc., all intermediate the Constitution in the process of what a court does. It does not lower the status of the Constitution nor does it underestimate it - but Justice Breyer says, in effect, we must recognize that the Constitution in a particular case, about a particular subject matter, in a particular litigation, comes to the judge already highly interpreted, packaged, mediated - and indeed only particular bits of the Constitution. And it is dealt with as other legal materials offered by litigants - something that the judge takes in through the process of judging.

I've sometimes seen it remarked that Justice Breyer does not really have a theory of the Constitution as such - he treats it in the same way that he treats other legal materials, on the theory that he laid out in his rightly famous scholarly work, Regulation. Justice Breyer's theory of the interpretation of regulation and ordinary statutes works, for him, quite well for the Constitution. One can see how originalism holds little attraction for him - but equally, the transcendental view of the Constitution, of a Justice Brandeis, for example, holds little attraction for him.

But this view of judging and the Constitution does have a bearing, I would suggest, on his view of foreign law. It is a view of constitutions that is extremely congenial to the legal status and stature of most constitutions in most legal systems. They are constitutive documents in one sense, and higher law, but not much higher. Easily amended, highly programmatic - they are not seen in the way that the Constitution is typically seen in America - the compact which established the political community, with all the sacred and transcendental overtones accompanying the forging of a political community. Justice Breyer's view of constitutionalism is much closer, it seems to me, to the view of constitutions that do not have the transcendental overtones, the foundational mythology, the sacred text that the US Constitution has. It means that it is far easier for him to import legal materials from outside the hierarchy of US law culminating in the Constitution itself, even in interpreting the Constitution, because for Justice Breyer, the Constitution more like a constitution. It is not a transcendental, sacred document the nature of which serves to exclude materials that do not arise from within the political community whose boundaries it sets, and exists to set.

***
That said ... in studying the Scalia-Breyer transcript, I am struck by how remarkably substantive it is. It is hard, reading the document, to believe that these two Justice were speaking extempore, off the cuff, in conversation and wholly unscripted. But they were. And because they were, it is important that the individual words and phrases used not carry more weight than can be put on off the cuff and unscripted phrasing. It is not a document for which it is fair to go after "gotcha" phrases and sentences. This is not the Federal Reserve, issuing delphic statements, the placement of each comma of which is fully intended to carry weight. This is an informal discussion, in which, if one is willing to read it charitably to each party, yields a great deal about judicial philosophy. But it must be read holistically, in the context of an informal discussion and, above all, charitably.

(Update, Friday, January 21, 2005. Julian Ku at Opinio Juris blog has a very interesting comment on the same question, here. Opinio Juris (in my links list) is a wonderful blog, btw.)

UN reform and Mark Malloch Brown

Judith Miller has an important story in today's Monday, January 17, 2005 New York Times, "Annan Planning Deep Changes in U.N. Structure, Aide Says," at A4. The WSJ has a similar story - the hook is a press briefing by Mark Malloch Brown, who is moving from being head of the United Nations Development Program to Kofi Annan's chief of staff. What interests me particularly in Miller's story is the comment by John Ruggie, a former assistant SG at the UN and now Kennedy School of Government professor. Ruggie notes that pressure from the oil-for-food scandal has made real reform possible at the UN. Allegations of fraud and abuse, Miller reports him as saying, had

"shifted power decisively within the United Nations, out of the hands of what he [Ruggie] called the "traditionalists," who see the organization as being primarily beholden to its member states, to the "modernists," who believe the institution's mandate requires accountability to its own agencies, nongovernmental organizations and the public." (Emphasis added.)

Certainly this is in line with everything I have ever known about Malloch Brown. (I severely criticize him in connection with the 2003 UN headquarters bombing in Baghdad in an article on humanitarian neutrality, available at SSRN here, Humanitarian Inviolability in Crisis: The Meaning of Impartiality and Neutrality for U.N. and NGO Agencies Following the 2004-2004 Afghanistan and Iraq Conflicts, 17 Harvard Human Rights Journal 41-74 (2004).) My work with international NGOs has frequently put me in contact with his agency, the UNDP.

This "modernist" vision of UN reform is a very, very bad idea. Why? First, because its underlying assumption is that the problem of the UN is its accountability to sovereign states - the modernist vision instead wants to empower the UN as not the servant of states, but as an institution legitimate solely on its own and accountable to itself. Malloch Brown believes that the fundamental problem of the UN, the one that needs reforming, is precisely that the institution is too much a creature of states. He wants it to be ideologically, institutionally, morally, and politically a genuinely independent player, and he couches it as a means of reforming the institution's corruption by sovereign states such as France or Russia in the oil-for-food program. Sounds attractive, to get the UN out of bed with France or Russia - but what Malloch Brown has in mind also gets it out from under the thumb of the United States. Above all, Malloch Brown believes in the "unique legitimacy" of the United Nations - but that hubris of "unique legitimacy" is precisely the problem.

Second, this vision of UN reform aims at replacing accountability to sovereign states, and the United States in particular, with accountability to the UN's own agencies and, worse, to NGOs and the public at large. The point, once again, is to bypass sovereign states and, in particular, the United States. NGOs are an extraordinarily attractive pairing for UN "reformists" for whom reform means UN independence from the United States. The fundamental problem of UN legitimacy vis a vis democratic sovereign states is that the UN has no democratic legitimacy. What NGOs - the private do-gooder organizations - provide to the UN is a veneer of democratic legitimacy. NGOs during the 1990s styled themselves as "global civil society," as though they, rather than governments, were the legitimate representatives of the "people" of the world. They lent a sort of faux-democratic "representativeness" to the UN, and the UN in turn elevated them and gave them much special access and attention, always with an agenda of undermining the authority and legitimacy of democratic sovereigns. It was a kind of love affair - the NGOs and the UN locked in a passionate embrace, each giving the other the legitimacy it lacked.

(I talk about the embrace of NGOs and international organizations in Kenneth Anderson and David Rieff, Global Civil Society: A Sceptical View, in Mary Kaldor, et al., eds., Global Civil Society 2004/5 (Sage 2004); The Limits of Pragmatism in American Foreign Policy: Unsolicited Advice to the Bush Administration on Relations With International Nongovernmental Organizations, 2 Chicago Journal of International Law 2 (2001) fulltext at SSRN here; and The Ottawa Convention Banning Landmines, the Role of International Nongovernmental Organizations and the Idea of International Civil Society, 11 European Journal of International Law 1 (2000), available full text here.)

Much of this fell apart after September 11 when, with security back on the table, so was the authority of the sovereign state. But for people like Malloch Brown, the dream still persists, and has been reinvented as a narrative of precisely the UN "reform" that ought to satisfy the United States. Modernist view of the UN? Malloch Brown represents, rather, the oldest and most "traditionalist" dream of all, that of the United Nations growing from little sapling of global governance to majestic, overarching tree of global government.

Whereas what is needed is a thorough pruning, one that reconceives of the UN as a much smaller, much more confined organization. The dilemma is this. On the one hand, the UN is a failed organization, root and branch, and yet on the other hand, there is a need for a UN. (See my earlier post on the High Level Panel report, here.) The UN needs to be reconceived, however, not as an overarching tree of governance, but instead as a set of narrow, low, but sturdy and, above all, useful and competent, hedgerows, serving particular purposes - and jumpable as occasion occasionally demands. This reconceived UN would not the kind of organization, I would venture - quiet, competent, small, confined - that would attract men of such hubris as Malloch Brown who, having achieved fortune, now seek glory.

(I am getting involved in some UN reform studies; more posts later on what that would actually entail, such as caucuses of democratic sovereigns, the chastened role of NGOs no longer conceiving of themselves as global civil society representing the peoples of the world, etc.)

Happy MLK Day

There are two, perhaps three, others in the history of the United States to add to the Founding Fathers - as though they had been present at the founding. I don't merely mean great leaders or even indispensable leaders of the United States. Nor do I mean those that brought the reality of the country closer to its ideals, indispensable as that also is. I mean, rather, that they reforged those ideals - reformed the ideals themselvs - in a way that should have been the ideal at the founding, but wasn't. The first of these is, of course, Lincoln. And possibly Roosevelt. But without question Martin Luther King.

WaPo editorial today gets Geneva Conventions wrong

The Washington Post, in its Sunday, January 16, 2005 editorial today opposing the confirmation of Alberto Gonzales as attorney general, gets it wrong on the Geneva Conventions. My guess is that the editorial writers have never actually read the relevant article of the conventions, but instead have simply relied on press releases from various rights groups that tell the WaPo what it wants to hear. The editorial reads:

"In fact, the White House counsel [Gonzales] endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for." (Emphasis added)

The Post's editorial writers might have troubled themselves to read what Article 5, paragraph 2 of the Third Geneva Convention actually says:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added)

It has long been my view, in scholarly and other writing, that sound policy urges the US to give each detainee a tribunal to determine their status, at least if it is proposed to deny someone Geneva protections. This is the view in 1997 Department of Defense regulations that afforded a brief, three officer panel to make such determinations and which was informally regarded, according to my understanding, by the ICRC as beyond the standard required by the Third Geneva Convention. I believe the decision of the Bush Administration not to apply those regulations was inappropriate and unwise. But it was not a violation of the Convention.

The Bush Administration was - and is - not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open - it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.

This was a bad - very bad - policy judgment by the Bush Administration in these circumstances. It should have gone with DoD's existing regulations; I agree entirely with Tod Lindberg's analysis in the Weekly Standard, here. But it is not a violation of the actual language of the treaty. The consistent inability of MSM such as the Post - slamming this at the administration in article after article for now several years - strongly suggests to me that few, if anyone, in MSM have actually read the text. Instead, I suspect, reporters and op ed writers find it easier to rely on various highly unobjective and partisan NGOs. But reading this one sentence is not rocket science; even a Post editorialist ought to be able to parse it without deferring to Amnesty International or Human Rights Watch. (Note to MSM reporters: Groups such as AI and HRW perform an invaluable service. But their legal analyses are not objective; they are lawyers' briefs, aimed at reaching a particular, foreordained conclusion. I understand that, being MSM, you like analyses that reach foreordained conclusions; it's a process only too familiar to you, and it's especially congenial when it reaches your foreordained conclusions. But don't forget, somewhere in the back of your mind, that it is not, and never was intended to be, objective. Lawyers write briefs - just as, alas, so many of you do.)

But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status - "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith. (Or would have been. By reason of the Bush administration's very poor lawyering in front of the Supreme Court, overreaching on a constitutional theory of unitary executive power that didn't even win over Justice Scalia and taking down a perfectly defensible interpretation of the Geneva Conventions with it, fullblown and perhaps even civilian court hearings may now be required, in place of the informal, battlefield 1997 DOD regulations' hearings. But that's another post.) Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen - and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan - but it is within the literal wording of the text. It is not a violation of international law.

One of the few commentators to have picked up on this is jurisprudentialist Ronald Dworkin - scarcely a friend of the Bush administration. Nevertheless, with admirable objectivity, his analysis of the detainee cases in the Surpreme Court, in the New York Review of Books, carefully avoids the claim that this action by the administration violates the Conventions, although he slams the administration on nearly every other matter. Read his article here. (Dworkin makes the same point in an earlier article in the NYRB, but it is only subscriber available.) The key excerpt (emphasis added):

"The Geneva Conventions draw a fundamental distinction between two classes of people that a nation might capture in war or other military action. One class must be treated as prisoners of war, which means, among other things, that they may not be punished simply for bearing arms against the capturing nation, that they must be held in conditions comparable to those of the soldiers guarding them, and that they may not be exposed to coercive interrogation. The second class includes not only civilians fighting independently of any government but soldiers in a more organized action who do not wear uniforms or other identifying badges or who fight with a force that does not respect the laws of war. They are not entitled to prisoner-of-war status; they may therefore be prosecuted and punished as criminals for acts of war, though the Geneva Conventions require that they be treated humanely.

The Bush administration claims that these provisions allow it to detain some prisoners, whom it calls "unlawful combatants," indefinitely without charge or prosecution, even though they are not treated as favorably as prisoners of war and may be subjected to coercive interrogation. It claims that Hamdi, Padilla, and its other prisoners belong to that category, and it may continue to do so if, as seems likely, they are unable successfully to challenge their detention before military commissions or in habeas corpus proceedings. In an earlier article in these pages I argued that, whether or not this option is permitted by a strict understanding of international law, a decent respect for human rights requires that the administration set it aside and choose between prosecuting its prisoners as criminals, with the normal safeguards of the criminal process, and treating them as prisoners of war, which would mean an end to round-the-clock interrogation, sensory deprivation, humiliation and other forms of coercion. I said that the administration's present policy shows an impermissible contempt for the rights and dignity of its victims.

The Court's recent decisions suggest that a new and stronger claim can now be made: that the government's treatment of prisoners it calls "unlawful combatants" is not only morally indefensible but forbidden by the Constitution as well."

Note that although Dworkin severely criticizes the administration on moral and even, finally, on Constitutional grounds, he is careful to refrain from declaring that it is in violation of international law - i.e., Article 5 of the Third Geneva Convention.

***

The point, then, is that the Post editorial repeats a error oft-heard across MSM, that by failing to provide individualized hearings, the US is in violation of the Geneva Conventions. As a policy matter, and indeed as a matter of basic fairness, it should do so. As a matter of international law, that, I'm afraid, amounts to a MSM urban legend.

(I discuss Article 5 of the Geneva Conventions in more detail on this blog here.)

Full written transcript of Scalia-Breyer debate on foreign law

The full written transcript of the debate between Justices Scalia and Breyer on foreign law in US courts is available here.

My thanks and congratulations to the law school for getting it transcribed and available so quickly on the web. I recommend, by the way, not neglecting Justice Breyer's very interesting, indeed moving, closing statement, at the very end of the transcript:

MR. ANDERSON: Last question that we're going to take is actually from outside this room. There are many people who are actually in other rooms in the building, and I've taken one question out of the ones that have been passed up here. So this will be the last question. And it is that Justice Scalia has raised the concern, and has really put centrally, the concern that citing foreign law is an invitation to judicial elites to impose their own moral and social views.

MORE And yet neither Justice Scalia nor Justice Breyer has directly addressed a deeper concern about these materials; namely, that's it's not about elite imposition as such, but instead that these legal materials have no democratic provenance, they have no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials. Let me put that out as a question, I guess. (Pause.) (Laughter.)

JUSTICE SCALIA: They're your materials; you defend them. (Laughter.)

JUSTICE BREYER: I mean, it's an interesting point. You're always referring to materials, even if it's Blackstone or whoever. The material doesn't have to have a democratic base. You reason all the time. You read law professors. They're not elected. (Laughter.) I mean, to try to understand, to try to understand, it's not necessary that the origin of the material be democratic. That's normal, and of course these, where they're relevant, it's an effort to understand.

But there is a deeper meaning to that question which is very interesting to me, very interesting. When people think about the foreign court institutions, it's sometimes very hard for -- say for Europeans, to understand why Americans sometimes react negatively, so negatively to the thought that some foreign judges would be able to tell Americans what to do. They find that hard to understand, because they're judges, after all. I've even been saying -- I haven't said about telling us what to do, but I have pointed out that they're judges. But you can understand it; there is something deep in this reaction, and not entirely bad.

And it comes back to our being a democracy, as the questioner said. One of the most interesting phrases that I read -- to me -- in Madison is, if I can remember it -- and as I bring up at this moment, I usually forget the quotation -- but he said the American Constitution is a document of power granted by liberty, not a document of liberty granted by power. And what he's driving at is even if we end up at the same place as many European countries, the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government.

That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position."

And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.

But, of course, I don't think it stops me from looking at the foreign opinions -- (laughter) -- and even citing them. (Applause.)

MR. DORSEN: Justice Scalia.

JUSTICE SCALIA: I think it's fine to conclude on something that we undoubtedly agree upon. (Laughter.)

Jamin Raskin poses questions about the Scalia-Breyer debate

(Jamin Raskin, a highly distinguished professor of constitutional law at Washington College of Law, American University, sent me the following message today and has allowed me to post it publicly. Responses and comments welcomed:)

Ken-As your friend and colleague at AU, I was very proud of the wonderful debate you put together yesterday between Scalia and Breyer on the question of U.S. Supreme Court invocation of foreign law sources. Thank you also for giving me the chance to pose a question to Justice Scalia; you will notice I was on my best behavior. I'm also one of the liberals who thought Scalia presented the more coherent and pointed argument. But I'd like to pose to you the questions I didn't get to ask Scalia in hopes of advancing the discussion.

1. The first sentence of the Declaration of Independence invokes "a decent respect to the opinions of mankind." If we are not talking about making judgments of the European Court of Justice in any sense binding on us in constitutional adjudication, as Breyer himself emphasized, then why can't the U.S. Supremes also demonstrate rhetorically a "decent respect to the opinions of mankind" by discussing judgments of that court and others?

2. If there's a problem with that, does this mean Justices in the course of constitutional or statutory adjudication should never invoke either as rhetoric or as persuasive or analogous authority any sources not directly relevant to the merits resolution of a claim, i.e. the Bible (that was the one I refrained from asking Scalia), the Declaration of Independence, Shakespeare, popular lines in the movies? Check out Rehnquist's melancholy dissent in Texas v. Johnson where he cites about 25 poems, short stories and novels that celebrate the American flag. All of that was certainly irrelevant legally; was it also illegitimate as a form of legal rhetoric? Scalia, himself, you know frequently references pop culture, the movies, books etc. Is it all illegitimate even if the Justice does not directly rely upon it in the formal reasoning process? And, for that matter, what about the opinions of lower state or federal courts? None of them has a democratic provenance or authority from the perspective of the whole nation ("We the People"). (Certainly you wouldn't find very relevant Justices citing the MA. Supreme Court's decision in the Goodridge case in a constitutional challenge to the ban on gay marriage.) Should state and lower federal court decision never be used as persuasive authority or even for rhetorical purposes?

3. There's a great irony to this debate since it is a distant echo of a struggle in the 18th and 19th centuries by the Jeffersonian republicans and Jacksonian democrats against the imposition of foreign British common law in state courts. For the democrats, the only legitimate provenance for property, contract, tort law etc. were the state legislatures and popular majorities. All of the conservatives rallied around the British common law, which Scalia also championed yesterday. But why? We had a revolution against England and its form of government. Why would we use British sources to define "cruel and unusual punishment," for example, when it was the Crown's cruel and unusual punishments we were (partly) rebelling against? Our 8th amendment jurisprudence bans not just those practices considered uncivilized at the time the Bill of Rights was written but those that offend "evolving standards of decency," an idea that Scalia lambasted yesterday. But this progress in understanding is the mark of civilization and our struggle for dignity. There are a lot of nasty punishments we have done away with over the centuries. Should we really go back to the British view of these things? Where is the democratic authority or justification for that approach? More importantly, do you and Scalia take this deferential position towards British law not just with respect to constitutional interpretation but actual state common law? Isn't that a real slap in the face to the democratic revolution?

4. The only remark suggesting actual reliance on foreign legal views was made by Scalia himself who said that he favored "deference" to the treaty interpretations offered by other signatory nations, a deference he likened to Chevron administrative law agency deference. Now, what is the conceivable justification for that position? Certainly we should consult the cases other nations have decided interpreting our treaties but why should we defer to them? That was the only moment that I could feel American sovereignty actually slipping away. That remark suggested to me that this whole issue is being trumped up to push some hot political buttons: legal "elites--law students, law professors, lawyers, judges," in Scalia's refrain--borrowing fancy French and Euro-theory to push liberal agendas like gay rights and abolition of the death penalty. But is there a real consistency of approach here? did you agree with Scalia on the treaty point?

5. You raise the provocative question: if we're going to cite the European Court of Justice, why not Sharia law? If the European Court of Human Rights, why not the high court of North Korea? Ah, but here's the key point: we are an aspiring democratic society that should recognize especially the developing jurisprudence of other aspiring democratic societies. Granted, those who want to keep the Ten Commandments displayed on public property could and should cite to Sharia law to demonstrate parallel values and ideas in other parts of the world. That could only be illuminating as to the Establishment Clause views of the authors. But the point is that, why would we even think it remotely strange or damning that our judges would, in the course of interpreting our democratic constitution, cite to the jurisprudence of liberal democracies rather than military dictatorships or theocracies? This horror of mention of European courts relates more to current unease around the Iraq war rather than any honest accounting of our legal history, which is replete with such mentions.

6. Finally, just to be clear about my position: Perhaps judges and justices should never mention any outside material except those directly relevant to the logical unfolding of the Court's formal reasoning as to the precise issue in the case. If so, then I'm with you--ditch mention of foreign legal decisions except in those few doctrinal cases it is relevant (i.e. treaty interpretation). But, if not, then pretty much anything goes. If you guys are going to attack all acts of imaginative analogy by judges and their rhetorical or literary invocation of off-point sources, then please make clear you oppose judicial mention and reference of the Bible, Shakespeare, and even Scalia's beloved British sources (Blackstone) where there is no textual evidence that the Founders meant to rely on it.

Again, congratulations on a smashing event--eager to collect your reactions, Jamie

(Update, Saturday, January 15, 2005: The full written transcript of the debate is available here.)

Powerline reaction to Scalia-Breyer debate on foreign law in US courts

Powerline, picked up by Instapundit and many other blogs, has a very critical take on Justice Breyer's comments in the the debate between Justice Scalia and Justice Breyer at American University Law School on foreign law in US courts, here. Hindrocket's comments come out of the AP story on yesterday's debate - you can go directly to the CSPAN site or go to the law school website, here, to link to the archived video feed of the entire event. The law school website, here, will have a full written transcription of the event by the end of next week, which should be welcome news to scholars and others. I have posted a discussion on this blog of why the issue of foreign law in US courts is so important - Powerline is absolutely right about that - beginning here. (You can find Ann Althouse's TiVo blogging of the event here and her pickup of news of the event in the press here.)

I was one of the organizers of the Scalia-Breyer debate - I'm a law prof at AU law school - and although the AP quote was, so far as I could tell, accurate, it was taken sharply out of context. Justice Breyer was speaking in a very specific exchange with Justice Scalia about the narrowly judicial act of interpreting legal texts, and it is quite unfair to take that remark about who participates directly in the process of interpreting legal texts that have already been informed by constitutional and legislative and other democratic institutions - judges, lawyers, law students (and it was obvious to the live audience that he included students as a courtesy to the audience of law students) - as being somehow antidemocratic. He was just noting the fact that legal materials, once they have been created through various democratic mechanisms, then become subject to interpretation by the interactions of lawyers and judges. It was nothing more insidious than that. A much better summary of the event is in Charles Lane's Friday front-page Washington Post article.

I yield to no one - not even Hindrocket - in my opposition to the drawing of foreign law into US constitutional adjudication. I have a long multi-post discussion on this blog outlining the issues and critiquing Justice Breyer's views, beginning here. I have a Harvard Law Review piece coming out in February that severely criticizes Justice Breyer's position, and asking him, among other things, why, if he is willing to cite cool, progressive European law, he does not also cite Shari'a law - for example, on how many female witnesses are needed to contradict male testimony, or on whether it is required to stone gays to death. If the point is that American jurisprudence ought to take account of global trends in law, how, without hypocrisy, do you limit it to those views that just happen to be congenial with the sympathies of a progressive, Europhile US judge? Isn't it hypocritical not to take account of what is arguably the much more global movement in law, the movement toward Islamization of law in many places from Aceh, Indonesia to large parts of Nigeria? Isn't taking account of all that stuff, and not just what one's friends in Western Europe say, equally required in order to have a "decent respect" for the opinions of mankind outside our own country? I have zero sympathy for Justice Breyer's position on this, and think it an erosion not precisely of American sovereignty, but of American democracy, for which sovereignty - what Lincoln called "a political community, without a political superior"- is its bulwark and defense.

The issue is not a decent respect for others' opinions in the wide world, but instead fidelity to a particular political community, the relations of whose members are constituted literally by a constitution, by a compact among themselves, and who give power over to unelected judges not in order that they draw upon the opinions of people at large in the world, however worthy or wise their thoughts might be, but to draw upon sources that have democratic provenance and legitimacy from within this particular democratic political community, because their interpretation by judges must be and properly is undemocratic. The price of being permitted the undemocratic, countermajoritarian act of judging in a democracy is that the materials one brings to the interpretive table must be materials which arise from within the constitutional and democratic processes of that political community - those which are accountable, through the legislative and other democratic processes, to the democratic political community.

That said, however, the particular comment that Powerline zooms in on from the AP is taken out of context and quite unfair to Justice Breyer.

Justice Breyer's real problem in the debate showed in his repeated assertion that this was not a big deal, it was no different from citing Blackstone or other extrajudicial materials - Shakespeare, the Bible, whatever. His answer to his critics who rightly wonder where the practice stops is disturbingly and, I would say, entirely ad hoc. Judges who are properly doing their job will only cite foreign law in rare and appropriate cases - and it is easy to guess what Justice Scalia did with that. As in many opinions of the Breyer-Souter wing of the Court - the Sosa case, for example, supposedly reining in the rampant use of the Alien Tort Statute - Justice Breyer seems to think that good judicial sense can find the right balance, and so there is no call to create hard and fast rules for lower courts. It ignores completely how litigation actually works - lawyers who perceive that foreign law is now fair game will start citing it, judges will note that it is at least partly accepted by higher courts and will begin responding to it, not by ruling it out of court, but on a substantive basis, and within a few years it has become standard practice to cite foreign law. Lawyers won't not be able to cite it and judges won't be able to ignore it. It will just evolve into an accepted, indeed required, practice unless there is a clear rule from the top down.

It was striking to me, however, how many of the professors I talked with after the debate, who despise Scalia and substantively think the entire world should have a kind of common global jurisprudence, thought that Scalia gave much the stronger argument.

I will have more to say on the debate and its implications later.

(Update, Friday, January 14, 2005: I've made some minor grammatical edits.)

(Update, Friday, January 14, 2005: In addition to Charles Lane's outstanding Washington Post account in today's paper, see also the MSNBC story, here.)

(Update, Saturday, January 15, 2005: Full written transcript of the debate available here.)

Scalia-Breyer debate information

(Update: Very, very pleased to announce that a transcript of the debate will be posted at a link from the law school's website within about three business days after Thursday - figure Tuesday or Wednesday. The video stream will also be archived at the law school site for those not able to watch it live.)

In case you are looking for information on the Scalia-Breyer debate:

Topic: "The Relevance of Foreign Law in US Constitutional Adjudication"
Who: Justices Scalia and Breyer, moderated by Professor Norman Dorsen, NYU
When: Thursday, January 13, 4-5:30 pm est
Where: Washington College of Law, American University, DC
Sponsors: Washington College of Law and the US Association of Constitutional Law (the US affiliate of an international scholarly organization for comparative constitutional law studies)

Web livestream: look under "videoconferencing" on this page, here.

For an informal discussion framing the issues, go here on this blog.

Does an ethics of war require a view on the nature of war?

One question I have pondered a bit as I've been chugging away on my just war manuscript is whether having an ethics of war requires some commitment as to the nature of war itself. I have written thus far taking the view that it does not - this is mostly in order, I suppose, not to prematurely lose readers who might take exception to my view of the nature of war, and then assume that there's no reason to go on to the account of war's ethics. So I have proceeded, as Walzer and Elshtain and Johnson and other writers do, on the assumption that we know, well enough, the phenomenon of war that we seek to characterize in ethical terms, and do not need for purposes of ethical characterization to commit ourselves to a theory about war and its nature.

This strikes me as a prudent policy for an ethicist, and I don't suppose that I'll change it midstream. Still, I have some questions as to whether it works so very well. I mean, for example, supposing that one had a view of the nature of war that was driven by a strong view of its underlying elements - that violence was strongly biologically, indeed (say), genetically encoded in human beings. If you had some kind of very strong factual predicate such as that, would not your ethical view necessarily be influenced? The most important matters, I reckon, in which the ethical view would be conditioned on a view of the nature of war would be matters of determinism and the will - the belief in genetic predicates of violence and aggression tied to war being the most obvious.

The reason, then, for not wanting to tie one's ethical theory about war too closely to a theory of the nature of war is that most of us, I imagine, don't have a final or strongly held view of the nature of war itself. Maybe some forms of moral realism about warfare do carry such presumptions - Clauswitzian thinking, where it crosses back and forth between a theory of the nature of war and the morality of war, for example - might be the clearest exception. "War is hell" is a view of the nature of war that carries strong normative implications, or might anyway. Some versions of pacifism and nonviolence might also be freighted with a view about the non-moral nature of war - its uncontrollability, for example.

What about theories not simply about the nature of war, but instead about how it arises in human behavior? Theories about aggression and violence and weapons use? Of course, strategically, as a moralist one wants to avoid committing one's moral theory to ultimately speculative and nonfalsifiable theories of the etiology of war. On the other hand, supposing you think that war is what the historian Robert O'Connell, in The Ride of the Second Horseman, says it is - a cultural adaptation, and a late one at that, one which takes the creation of domesticated plant and animal species, the growth of cities, the utilization of the horse, as requirements for the development of what we really mean by warfare - that is, not merely "organized theft," but instead a much more developed, culturally complicated social activity. If you think that, then might it not have implications for your ethical theory about war? About its plasticity in human behavior?

Wall Street Journal Editorial Report

My thanks to Paul Gigot, Daniel Henninger, and Robert Pollack for inviting me to join them tonight on the Wall Street Journal Editorial Report on PBS, to talk about torture, torture memos, interrogation, and the Gonzales hearings. I'm not very experienced or comfortable with television, don't speak easily in soundbites, and am afraid I took way more than my allotment of time - so my apologies to the panelists.

The point I most wanted to make is one that goes in conjunction with my posts below on Gonzales's confirmation hearings. I support Gonzales, and firmly resist many of the allegations made against him and against the Administration, particularly in the NYT and Washington Post editorials today, for all the reasons I stated below. I particularly reject Mark Danner's quite slippery op-ed piece in the NYT of yesterday, Thursday, January 6, titled "We are all torturers now." Cute, but sorry: we're not. What Danner does, quite inexcusably, is mingle the undeniable abuses of Abu Ghraib with the fact that the White House counsel sought, in the context of the interrogation of a known senior Al Qaeda chief, the outer limits of what could permissibly done in the way of questioning. I don't know, quite frankly, why one has a lawyer if not to ask what the outer limits of legal behavior are. To mingle those two - under these always and necessarily vague "bridging" rubrics of "creating an environment conducive to torture and abuse" simply by virtue of having discussed where the lines are - is specious. Likewise Danner's assertions that the techniques under discussion were all quite obviously torture. Loud Barry Manilow? Please.

But then consider Heather MacDonald's discussion of the fact that none of these techniques actually have much effect on Al Qaeda operatives because, at bottom, they know that, unless we decide to do outsource them to Egypt or Saudi Arabia or somewhere, we are not really going to torture them, Saddam style, or even make them very uncomfortable - well, we don't get anywhere with them. But that's precisely because none of this stuff is torture. Water boarding is the closest it gets, and once the threat element is gone - "I know they won't actually drown me" - then it too loses much of its effectiveness.

Granted, that is an important argument for not bothering to do it - we won't do it to the point of it being effective, so it might not be worth doing at all. "Why bother?" does not seem like such a good answer, however, if it turns out that another batch of aid workers are kidnapped and decapitated, or another terrorist attack takes place in the US, because we didn't think even a little pressure was worth putting a known terrorist, someone unquestionably in possession of crucial information, such as, say, Zarqawi.

But the problem with Mark Danner, and for that matter, the ICRC, and all the rest of the rights groups in arguing their case to the public is not this. They never get to this level of argument, because they start from the unshakeable - but untrue - premise that all these folks are entitled to be treated as POWs, and that any questioning is, therefore, by its very nature "torture" or anyway "tatamount" to it or a massive violation of the Geneva Conventions and international law or anyway gross wickedness by the United States. How a group such as the ICRC, however, expects to be taken seriously as an interlocutor and moral arbiter of matters such as torture when it announces, as it did a year ago, that merely the fact of not knowing how long you might be held in custody in Guantanamo was mental anguish tatamount to torture is beyond me. If that's what you (are not quite willing to own up to and) call "torture," then you can pretty much write off any serious consideration of your views except by the NYT editorial board and, more to the point, your main public audience in Europe.

So it is clear that I have zero sympathy with the Mark Danner-NYT endless elisions that aim at putting it all together in what MacDonald called the "torture narrative."

That said, however, I still stand by the criticisms I made in the posts below about clear errors made by Administration lawyers. My problem with the so-called "torture memo" was not that it attempted to explore the contours, including the outer limits, of what legally constitutes torture. Given that the Torture Convention does not come with a conveniently attached annex operationalizing it to particular behaviors, that's what having lawyers is for. My problem is with certain of the conclusions reached in that memo, and in particular that doing something that you think actually is torture doesn't violate international law or US law prohibiting torture if the President decided there was a really, really good reason to do it. It does.

More importantly, however - and this was the criticism I was seeking to put in front of the WSJ editors, but I wasn't very effective with television time (which, I've decided, exists in a separate Einsteinean framework from ordinary time) - it is simply a whitewash and untruth to suggest that the abuses are just limited to what we have already heard about in Abu Ghraib. To suggest that at this point in time is simply contrary to the facts as we know them. The FOIA documents provided to the ACLU cannot be ignored, and what they indicate is a far more widespread pattern of abuse.

Sure, it doesn't reach Danneresque levels - asking anything beyond name rank and serial number is torture, and if this is a bad day for you, we'll come back later - but then, Danner's lack of standards shouldn't eliminate the obligation to come up with genuine standards for the responsible rest of us, either. Clearly the abuse goes far beyond what is taken as its extent as charactrerized in, for example, the Wall Street Journal editorial of Thursday, January 6, 2004. I am greatly disturbed that one could read the Wall Street Journal editorial in conjunction with the Heather MacDonald op-ed of the same day and come away with no suggestion or intimation that the widespread abuses indicated by the FOIA documents even existed - it's just some discussions in the White House, a set of officially sanctioned but mild "pressures," and then those horrible, out of the chain of command abuses in Abu Ghraib.

This is not what I expect from the Journal - when I read the NYT, I expect as a matter of course that there will be artful elisions and delicate phrasings designed to be (usually) literally true while misconveying (usually by leaving out certain of) the facts. It all has to be read with one's lawyer's glasses on to see what's not being said. I don't expect the Journal to stoop to that, but instead to be blunt and abrasive, and put on the table the stuff that is helpful for its case and the stuff that isn't, comfortable or uncomfortable, and then call it as it sees it. I value the Journal editorials precisely for their lack of lawyerly artfulness, but Thursday was not a good day in that regard.

What the Journal editorial, together with MacDonald's op-ed, presented as what we might called the "untorture narrative" might have been plausible a few months ago, but in light of the facts as currently understood, it is flatly untenable. There is a lot more to unravel about the extent to which, indeed, the desire to find ways to put pressure on detainees in interrogation allowed a wink and a nod on the use of techniques not on the officially approved list. If those accounts are accurate, then government actors were doing stuff that would count as serious, actionable abuse and possibly, in some cases, torture. It's a very live possibility, and one that can't be written off merely by pointing out that the broad-brush claims from the Dannerites are off-the-wall. It's way more serious than that, and it is very wrong of the WSJ editorials not to acknowledge that.

Maybe that list of interrogation techniques is simply too restrictive - some of the people writing in Sanford Levinson's Torture: A Collection would seem to think so. I might come to agree in at least some cases of known terrorists. But it is as much a disingenuity as one unfortunately simply comes to expect from the NYT for the WSJ never even to mention the FOIA documents and what they tell us about the apparently widespread extent to which such activities were taking place.

(Update, Wednesday, January 12, 2005. Here is the link to the full length Heather MacDonald article on interrogation at Guantanamo from City Journal (a condensed version appeared in the WSJ).)

(Update, Sunday, January 16, 2005: Here is the link to a response to MacDonald by Marty Lederman at Balkanization. I have a number of serious disagreements with Lederman, but it is important reading.)

Ronald Aronson on the Camus-Sartre quarrel

(Update, June 22, 2005: Ronald Aronson has a lovely opinion piece on the occasion of Sartre's birthday in today's International Herald Tribune explaining why Sartre continues to be important, despite irritating and annoying (many of) us (including me). Aronson's book really is outstanding.)

Late nights I have been reading Ronald Aronson's splendid new book, Camus & Sartre: The Story of a Friendship and the Quarrel That Ended It (Chicago 2004). It is a very fine book that manages to be both scholarly and lay-user friendly at once. I first read Camus' The Fall in junior high school - I did not understand it as a novel, I wasn't sure what it was, but I was drawn to the cadence of Camus' language, the sheer French brilliance of the phrases, even in translation - and I've returned to it many times. What I did not realize, until reading Aronson, was the extent to which it was a roman-a-clef for the breakup with Sartre. Aronson has also caused me to pick up again The Rebel - a book that I have read repeatedly over the decades. The whole quarrel between Camus and Sartre is, for me at least, one of those exemplary episodes that show that sometimes, anyway, it is the less well-educated, less philosophically brilliant, less sophisticated person who instinctively chooses better. What, in morality and politics, was Sartre, alas, ever right about? Or, if right, so very, very late? Camus was certainly not always right, but he was a man of greater moral decency and right much more of the time. When in high school, I thought Camus was right about his "fastidious assassins," but I now think he was not just wrong, he hopelessly romanticized the moral equation by saying that assassination is made better if you die too - he is way too close, on that matter, to justifying suicide bombing. But on the whole, The Rebel is a profoundly decent book. True, it's not philosophically coherent; on the other hand, it is decent. I want to pick up an idea, though, in a future post, about Camus' "provisional morality," follow it through with his great friend Rene Char, about whom I've blogged here, and curiously, with Lincoln of the Second Inaugural Address. But not at this moment.

(Update, Friday, January 7, 2005: See the excellent, erudite review by Algis Valiunas in the January 2005 Commentary.)

(Update, Sunday, January 16, 2005: My thanks to reader Andy for pointing out that chapter one excerpt of the book is available as a teaser from the publisher, here.)

The Gonazales hearings and Senator Schumer's question about revising the Geneva Conventions

I have caught just bits and pieces of the Gonzales confirmation hearings for Attorney General today. In general, he does not seem to have faced especially bitter attack - on the contrary, I thought the Democrats appeared to be pulling their punches, at least in the bits I heard. One bit that caught my attention was a question from Senator Schumer, asking Judge Gonzales whether there had been discussion within the Administration concerning the possibility of revising the Geneva Conventions to account for the different circumstances of the war on terror. Judge Gonzales hedged, saying there had perhaps been some general discussions as to the changing circumstances of conflict, but nothing specific. Senator Schumer then urged him to seek advice from Congress in any such move rather than simply submitting a treaty for advice and consent.

Revising the Geneva Conventions? No one, inside or outside the Administration, liberal or conservative, is talking about literally revising the 1949 Geneva Conventions - what they mean is supplementing them in some fashion, perhaps even superceding parts of them, by means of additional agreements, protocols, treaties. A number of academic meetings have taken place over the past two years or so, exploring the possibility. The meetings have had a variety of motives and sponsors - the common denominator, so far as I am aware, having participated in several, has always been a concern fundamentally about US behavior and ways of constraining it. I am not aware of any meeting in which the fundamental concern has been to make it easier for the US to conduct a war on terror. These conversations always take place, in the abstract, from the point of view of regulating everyone's conduct - but since there is only one party in the war on terror - terror being the strategy that it is - who might conceivably agree to be regulated, the United States, the practical import is that these are meetings about constraining US behavior.

For this reason - believing as I do that the United States should not, at this point, be subjecting itself to more international legal restraints, but should be establishing its own standards - I have taken the position that generally the United States government should not participate, nor encourage such exercises. It should recognize that, just as happened with the International Criminal Court negotiations, the US tries and tries and tries to be a team player, only to find out that the team consists of "it" and "them" and that the only practical function of the negotiations is to constrain US action. Eventually it all ends in tears, with many recriminations against the US, because eventually the US hits a wall - some principle, such as fundamental sovereignty, that no form of negotiation, however artful or papered over, can make go away. The wall is a matter of principle, not something that can be finessed by a form of words. That being the case, it would have been better had the US not given any legitimacy to the proceedings in the first place, and spelled out exactly why.

This is quite true in regard to any possible multilateral revision of the laws of war. A multilateral process would result only in the attempt by the Lilliputians to tie down Gulliver - and in the peculiar way consistent with the security imbalance between the international legalist states of Europe and the United States - states that have no fundamental security interests, because of the US security guarantee, arguing that the US should tie its hands in security matters to the satisfaction of European consciences. There is nothing in this but trouble for the United States.

Instead, the United States would be well advised to simply pursue its own vision of how the laws of war should be - asserting them publicly as law and declaring them to be the US understanding of the laws of war. It should use its power as the leading military power to create the conditions of customary international law by asserting its state practices as expressions of international law. It should, in effect, create legal facts on the ground.

To do that, however, requires that the US put forth its view of how the laws of war should reflect the realities of the war on terror not merely as an expression of US interests, security interests, but instead as a vision of the ideals of the law of armed conflict. At the center of this is not in fact US security, but instead a vision of the protection of civilians - which, at its core, terror threatens. The US can create long term international law, or at least protect its claim that it is within international law, only by asserting its policies as part of a larger moral vision of the laws of war. The US has almost entirely failed to do this, however, allowing its policies to be portrayed as nothing but mere realist interests. I have never understood this, frankly, why the US fails to announce a moral vision, since in all my experience of US government lawyers in these areas, it is clear that they are fundamentally motivated by a moral vision and not by interests - the sad fact, after all, is that the Geneva Conventions have been seriously violated with respect to US soldiers in every post-WWII conflict. It is not because the Geneva Conventions have done so well in protecting US soldiers that the United States remains committed to them - reciprocity was lost a long time ago - but because the US as a political community believes their core ideas are fundamentally right, which is a moral vision, rather than an assertion of interests. And the US government should be willing to say so.

(I discuss these ideas in a short academic paper, The role of the United States military lawyer in projecting a vision of the laws of war, 4 Chicago Journal of International Law 445 (Fall 2003), available here from SSRN.)

Does it matter who you are interrogating? The Gonzales hearings

(Update, Friday, January 7, 2004: Please read this in conjunction with Friday's post, The Wall Street Editorial Board Report, here.)

One thing that is missing in the whole torture-interrogation debate is the question of who you are interrogating. Can you use a different level of interrogation on Zarqawi, for example - knowing it is Zarqawi - than you could on someone who might indeed turn out to be the peasant shepherd? In my view, the answer must plainly be yes.

This would, however, require a regime that assigned different levels of possible roughness of interrogation - while remaining above an agreed-upon standard of torture [i.e., not committing torture, although we would have to agree on what specific practices constituted torture] - depending upon what is known about and individual's level of involvement in terrorism. That, in turn, would really require a separate legal and intelligence regime for dealing with terrorists. Many countries have exactly such laws, and they are found extensively in Europe. I have reluctantly come to believe that the United States should enact such a regime for dealing with non-US citizens believed involved with terrorism. For the same reasons that many European states have enacted such special regimes, I believe that the United States needs such a special regime as well - although, among other limitations, I would confine it to non-US citizens. One finding in such a system would be probable level of involvement, which would fall within a protocol for acceptable levels of pressure in interrogation.

First and foremost, however, I think the United States needs a thorough public debate on the issue - it cannot languish buried within the Justice Department, intelligence community, Department of Defense, and so on. Those who must deal with these questions with real detainees must have guidance, so that it is both clear what they may do and what it is that crosses the line - otherwise they will tempted to do whatever they feel like or, alternatively, do nothing for fear of prosecution. It is entirely insufficient simply to refer to the Torture Convention or its homologous US legislation; the phrases provide certain standards, but that cannot substitute for judgments about particular, concrete practices.

With respect to Gonzales - all said and done, I support his confirmation. This despite the fact that his office made very important mistakes, both procedurally and substantively.

Procedurally, it was wrong for the Administration to have cut its own professional military lawyers out of the loop, having a group of Administration lawyers without experience in the laws of war leafing through the Geneva Conventions for the first time. I understand the procedural problem - it only grows plainer and plainer the extent to which large swaths of the State Department and CIA believe that if they are not precisely a government unto themselves, they are at least a policy unto themselves - but there had never been an indication of that kind with respect to DOD. Those lawyers could have saved Gonzales's office much grief by ackowledging that of course the Geneva Conventions applied to detainees - but that under those Geneva Conventions, Al Qaeda and the Taliban are unprivileged combatants - and that detainees would receive the informal, unappealable three officer hearing per 1997 DOD regulations to determine their status, but nothing more.

Instead, it seems to me, Administration bet the farm with a far fetched theory of the so-called unitary power of the executive in matters of war - essentially telling the Supreme Court, when it came to it, that the Court had to butt out on Constitutional grounds, not on the grounds that the Administration's view of international law was legally defensible. When the constitutional law theory crashed and burned - it did not even garner support from Justice Scalia - it took down with it the quite defensible view of international law and applicability of the Geneva Conventions. This was one substantive mistake that is shared by the Justice Department and the White House counsel.

A second, of course, was the first torture memo. It held, quite obviously wrongly, that behavior was not torture if, in effect, the Executive said it had good reasons to do it. The Torture Convention does not tell how to draw lines about much interrogation behavior - one entirely obvious point, however, is that the purpose of even having a Torture Convention is to say that if behavior is torture, however, defined, then you can't do it even if you have good reasons to do it. This was an extraordinarily serious error; it has been reversed, of course, by the new memo just out in recent days.

That said, it is far too easy to forget the situation in the months after 9-11. It is also far too easy to forget that the first torture memo was a response to questions about a detainee whose identity was only too well known; no goatherd or shepherd, he. It is ever easy for civil liberties groups and human rights NGOs, with no responsibility for the common security and, indeed, scant regard for it, to shove all those issues to one side. In the name of protecting the human rights of someone whose status as a terrorist is entirely established, they cannot be shoved to one side, however, which is one reason I favor having a formal legal regime of terrorist status as essentially a state of exception (as is amply permitted in international law).

It also bears noting how we got into a situation in which standards and acceptable/unacceptable behavior were being defined for the first time. The evisceration of clandestine services and the more than clean hands policies from the 1970s forward left the United States in a position, first, in which it had no experience in dealing with interrogations, standards, procedures, limits, permissions, nothing. This is a fault arising from the desuetude of the past twenty years in intelligence matters - it is not a virtue to walk around in the easy times holding your hands high, Carter-like, and saying, they're clean, they're clean! if it means that in times when you must gather intelligence for the protection of lives in your political community, you have no idea how to do it, and are starting from scratch - including from moral scratch. You will make mistakes in doing that - serious moral mistakes - and the Administration did so. But its mistakes, as with so much of what led up to 9-11 and its aftermath, are at the door of previous administrations stretching back several decades.

If I were Gonzales, I would respond to charges of having authorized torture by retorting that there were no precedents, no best practices, no experience, nothing to go by in what should be considered acceptable and what not, because previous adminstrations and Congresses, naively believing that days requiring actionable intelligence for the protection of the American people ended with the Church hearings, had deliberately erased any institutional memory - either for what might permissibly be done and for what, at the level of actual practices, violate the law and morality. Following the admonitions of the ICRC, Human Rights Watch, or Amnesty International to do nothing that might go beyond the POW standard of "name, rank and serial number," was (is) not an option - but there was no institutional memory of what was - and if another major terrorist attack occurred, the watchdogs of human rights and civil liberties would - and will - shrug their shoulders and say, not our problem.

(One might usefully think back to the first experiences of Attorney General Janet Reno. A new, inexperienced Attorney General, tested three months into office by Waco. She ordered the use of CS gas against unprotected infants, deliberately targeting the infants, because, as she said to the press, they could not fit into the gas masks that the adults had. Her party fell over itself to excuse the first female attorney general; all those infant deaths conveniently forgotten. If that is the standard, then Gonzales's hearings should be quite short.)

(Update, Thursday, January 6, 2004: Corrected Gonzalez to Gonzales - this error due to my long time girlfriend from long ago, she was Gonzalez with a z. Also a couple of grammar corrections - verbs missing couple of places.)

Sudan information resources on the web

The best information resources on Sudan of which I'm aware on the web are found at the Rift Valley Institute (based out of Nairobi, London, and Sudan), here. Hundreds of links, well maintained, by people who know what they are talking about. It is also listed in my sidebar links.

Reader response to "What's the big deal about foreign law in US courts?"

I was pleased this morning to find a thoughtful response to my multipart post on the relevance of foreign law in US courts, here, posted by Arthur at Ad Populum. I'll try to find a moment today to respond, although I'm rushing out of here now. I should emphasize, though, that the multipart post is simply taken from early notes from a section of my Harvard Law Review review essay on Anne-Marie Slaughter's splendid new book, A New World Order (Princeton 2004). It is not at all a finished product - which is true of all the stuff I post; I am looking to work out ideas here in this blog, not present final products - I was looking for something to help frame the issues for debate for folks not already up on the topic. I hope it is helpful. But Arthur's response was insightful, and I'll look to make some comments on it later.

Meanwhile, just to restate: Justices Scalia and Breyer will hold a conversation at American University law school, Thursday, January 13, 4-5:30, on the topic of "The Relevance of Foreign Law in US Constitutional Adjudication," moderated by NYU's Norman Dorsen. Rsvp to attend in person to secle@wcl.american.edu and more details can be found at the events section of www.wcl.american.edu. The event will also be livestreamed on the web, and details can be found to link to the livestream on the main law school web page, www.wcl.american.edu.

(The event is co-sponsored by the law school and the US Association of Constitutional Law, which is the US affiliate of an international scholarly organization for comparative constitutional law - Michel Rosenfeld of Cardozo Law School is the president of the US affiliate, Norm Dorsen is the founding president, and I am the treasurer and a board member. It's a very cool organization and everyone should join, dues are a mere $35 a year.)

Mario Loyola on the UN

I have read, and am now rereading, the Secretary General's High Level Panel report on global security and UN reform rather closely, and one of these days I will write a review of it. I did discuss in a bit here. In the meantime, Mario Loyola, writing in the Weekly Standard, discusses both the report and the more general issue of UN reform. Read it here.

Within US media circles, new and mainstream, attention to the report has largely disappeared, under the likely accurate assumption that none of this kind of greybeard pontificating has much to do with anything. Within diplomatic, international community, international academic, and so on circles, however, it is still a live issue. I hear the report discussed as though it were, if not a papal bull, then a document of Genuine Importance. The tones are respectful, if not precisely hushed. Given the shakeup of Kofi Annan's senior management team - the most important is the elevation of the United Nations Development Programme's Mark Malloch Brown - the Secretary General, eager both to survive and salvage his last two years and his "legacy," will be looking to engage in some kind of reform. This document cannot help but be a key part of the discussion, if only because there is no more time for Annan to pull much else together. In my view - I've read the report twice now - it is and deserves to be a nonstarter for many, many reasons, but given its glow within the hermetically closed world of the UN and its acolyte NGOs and governments (and much of the US State Department), it has to be dealt with as it is.

The dancer upstairs

This upcoming week is the last week of class for my NCS course on ethics and war. Tod Lindberg, editor of the Hoover Institution's Policy Review, will be coming to speak on relations between Europe and the United States.

The other days, we will be watching a film on urban terrorism and guerrilla warfare, The dancer upstairs. It is from the British writer Nicholas Shakespeare's novel, directed by John Malkovitch. It tells the story of a lowly Peruvian lawyer turned police detective during the ferocious war of the Maoist Shining Path guerrillas and the Tupac Amaru urban guerrillas against the corrupt and authoritarian governments in Peru through the 198os. This detective, through sheer hard work and determination, succeeds in tracking down the leader of the Shining Path, Abimael Guzman (Ezekiel in the book and film). The film was, I think, underrated by critics and audiences - Malkovitch did an excellent job with a small budget, and the detective, played by Javier Bardem, is stunning in his lowkey realism. The film is better than the book; it has all the best aspects of a Graham Greene thriller - the moral passion play, a small man trapped in a bad situation, a doomed love.

I was in Peru, a Mormon missionary in the Andean highlands, in the late 1970s as Guzman, I now realize, was first emerging from the shadows and Shining Path was beginning its first armed atrocities in the mountains. I was in Huanuco at the time, which is on the eastern slope of the Andes, where the rivers lead down into the centers of the drug trade. Guzman was a prototypical Maoist revolutionary - in his dreams closest to the Khmer Rouge, really - a Peruvian provincial who managed to get some education in the heated philosophical circles in Paris, came away with an ideology of blood and redemption wrapped in a kind of marxist language. In his case, it was weirder than that - as a philosophy professor up in a remote university, no more than a high school at best, given the preparation of his pupils, he somehow latched onto Kant's Critique of Pure Reason as his revolutionary document. Can one imagine a less political work of philosophy? But it became the little red book for his followers - I remember photos that at the time I couldn't take seriously, of senderistas bearing aloft the Critique of Pure Reason in the street of some highland town, like the Bible in the procession into Mass. Many tens of thousands of dead later, it no longer seemed funny.

The dancer upstairs runs the Sendero Luminoso guerrillas together with the urban terrorist Tupac Amarus, who operated out of the utterly wretched Lima slums where I started my missionary work - Comas, for example, without water, power, much of anything. (And yet I was just back in Peru a year or so ago, and went to visit Comas - it has emerged as a solid working class, with sections of genuinely middle class, suburb of Lima.) In fact, they were not all one organization and operated in many ways very differently, reflecting differences in rural and urban terror. The key to all this in the novel and film is that the lawyer-turned-detective comes from an Indian town, speaks Quechua, and recognizes his home village in a sendero video.

The terrorist guerrillas, urban and rural, were finally smashed by a combination of a ruthless counterinsurgency campaign by the Peruvian security forces, including both police and military. It killed vast numbers of people. So did the guerrillas - the terrorist forces had a strong idea of purification, Khmer Rouge style, and alienated many Indians in the mountains with its policies cutting off the arms of mayors and other village leaders. It would be accurate to say that the authoritarian, sinister Fujimori government came in with a strong mandate to do whatever it took to defeat the rebels, and it did. But in this case, solid detective work tracked down the sendero leader, Guzman, and given the fanaticism around his person, it dealt a critical blow to sendero.

The aftermath has been difficult. The Fujimori government defeated the guerrilla terrorists; at the same time it demonstrated levels of authoritarianism and corruption that reached new lows even in Peru. (The most important writer on all of this - Sendero, Fujimori, the whole package - is the Peruvian journalist Gustavo Gorriti - as courageous as he is a good writer and reporter - parts of whose writing appeared in the New Republic and elsewhere - he is now back in Peru, after many years in exile.) It's not quite over, however. Guzman won a new trial following holdings by the Interamerican Court of Human Rights that his military trial in secret was procedurally improper - a new civilian trial sort of got started, in a bumbling way, amid indications that this was a fantastically bad idea, when one saw the reports of it being simply a meeting ground for old comrades who still harbor the same dreams of Khmer Rouge style power.

And then, of course, there is that cause celebre of the looney American and European left, Laurie Berenson, whose harboring of guerrillas bent on much death and destruction would have earned her a minimum life sentence in the United States, yet only got 15 or 20 in Peru, but who is regarded as a hero in less discerning quarters in the First World. Or at least, so the line goes, the process was unfair even if she was working with the guerrillas - she shouldn't have been tried by a military court. But she was retried by a civilian court, sentenced again, and finally, thank goodness, the Interamerican Court of Human Rights, no doubt seeing that it would have unleashed political chaos in Peru to have ruled otherwise (Berenson's American supporters often seem unaware that she is universally hated in Peru - the only folks who like her there are the remaining terrorists, dreaming of another chance at power), just a few weeks ago ruled that the civilian trial was procedurally adequate and did not overturn it. The chances of a sendero resurgence are far from negligible.

I care about this film for my class on war and ethics because it illustrates, first of all, the pressures of civil war, and the special pressures of urban terrorism. And then, the question of what the differences are between policework and soldiers' work. It does so in a setting in which the clinching move is made by solid detectivework, not by soldiers. And yet, even in Peru, the police were overwhelmed - there was no way to overcome sendero in the countryside without a complete mobilization of the Peruvian military, notwithstanding the extent of its abuses. It required a combination of police and military force to prevail.

But the differences between this experience, within a single society, within a single country, and the US global war on terrorism, are more instructive than the similarities. Of course, intelligence is the key - which is what the police really provided in the Peru of the film. But police work and even intelligence work is completely inadequate in a situation such the US war on terror - none of that matters, that is, if the terrorists have safe haven. If they have safe haven in third countries, then all the good intelligence and policework avails nothing. What makes the war on terror actual war is not the willingness to use weapons and soldiers of war against terrorists - occasionally even the Clinton administration was willing to do that. No, what makes it war is not the willingness to fight terrorists, but instead, the willingness to attack and bring down regimes and states that harbor terrorists. That is what the Clinton administration could never have fathomed, and the same would have been true with a Kerry administration.

Of course, the whole Clinton administration view that it was all policework, a matter of collecting evidence and arresting people and charging them in court - that is all nonsense in the war on terror. Of course one will need to do a lot of policework, arrest people, try them, and so on -especially in the big cities of Europe. Likewise one will have to gather vast amounts of intelligence. But it is only half a policy. Unfortunately, in the view of Kerry and his people, policework was the whole policy, the whole terror thing was nothing more than crime; fortunately, this was, pretty evidently, not the view of the American people in the election.

What's the big deal about foreign law in US courts? Part 4

But the deeper issue is flatly one of legitimacy and how the legitimacy of a constitution and constitutional order is conceived – when the citation of the foreign case as persuasive or any other kind of authority is real and not merely a rhetorical flourish. That is the sum of what Justice Scalia means when, attacking such "transjudicialism" in the context of the US constitutional system, he said that we “must not forget that it is the Constitution for the United States that we are expounding,” and not, by implication, some other constitution or some set of universal principles not inherent in the text of the Constitution itself.[9]

Scalia has not closed himself off to the possibility that someone or some institution outside the United States might have something relevant to say about an American situation. Far from it. He recognizes, for example, that cross border litigation by multinational entities will involve complex issues of comity and recognition of the views of foreign courts, as might the interpretation of treaties and other international documents that result from a multilateral process among sovereigns. It is, rather, that “comparative analysis [is] inappropriate to the task of interpreting a constitution, though it [is] of course quite appropriate to the task of writing one.”[10] Constitutions are different, insofar as they are the constitutive document of a political community.[11]

In that case, the issue is not so much the content of doctrine, but instead its provenance – the fact that it comes out of the processes of a particular political community, its constitutional and constitutive processes, is what matters, not its content. And, therefore, the fact that other communities might have different and better ways of approaching even the same issue is frankly not relevant, except as those different ways of doing things are able to ascend through the internal constitutional processes of a political community.

This matter of legitimacy and provenance is addressed in an article by Charles Fried, who brings to this debate not only the credentials of Harvard constitutional law professor but also former judge on the Massachusetts high court. Fried writes in reference to the debate between Justice Breyer and Justice Scalia:

“Justice Breyer’s remarks on comparative constitutional law, if they had appeared in a law review article, would have been quite unremarkable … As part of a judicial opinion, they were altogether remarkable. Why should that be? The reason is that if Justice Breyer’s insertion into the case of comparative constitutional law materials had gone unchallenged, it would have been a step towards legitimizing their use as points of departure in constitutional argumentation.”[12]

The moral heart of the debate is thus how one sees constitutionalism and the United States Constitution in particular. In many political systems, the constitution is a higher law, but not that much higher – the constitution is a document which is relatively easily amended, highly programmatic in its structure, and of neither the longevity nor legitimacy which the Constitution of the United States carries. It is thus easily comprehensible how, in such a system, legitimacy is not deeply offended by the importation of legal materials from outside the system. No deep social or political consensus is deeply offended; neither is democratic sensibility undermined. In fact, quite the opposite, as Yale Law School professor Jed Rubenfeld observes:

“For Europeans, the fundamental point of international law was to address the catastrophic problem of nationalism – to check national sovereignty, emphatically including national popular sovereignty. This remains the dominant European view today. The United Nations, the emerging European Union, and international law in general are expressly understood in Europe as … restraints on democracy, at least in the sense that they place increasing power in the hands of international actors (bureaucrats, technocrats, diplomats, and judges) at a considerable remove from popular politics and popular will.”[13]

Rubenfeld goes on to note that the US Constitution did “not speak in the language of universal rights.”[14] Instead, it“spoke in the language of popular sovereignty … American constitutional law was understood from the outset to be part of the project of popular self-government, as opposed to an external force checking that project. The American language of constitutional rights, properly understood, does not claim the authority of universal law. It claims, rather, the authority of democracy.”[15]

The US Constitution, on this view - and I daresay it is the view held by a sizable majority in in this country; it is their understanding of their Constitution - derives its legitimacy from popular sovereignty. It derives its legitimacy from the people who are governed thereby, and not because it is thought of as the enactment of some body of universal law given to them – much less given to them by elites who obtained it from on high and can therefore modify it as they receive further revelation.[16] If that be so – again, it seems to me certainly the ordinary understanding of Americans, even including most of our elites – then the invocation of foreign constitutional law, no matter how persuasive its content to a particular judge, is fundamentally at odds with democratic constitutional self government. The citizens of the United States have accepted democratic constitutional arrangements, particularly in the judicial rule of law, that are in many ways deeply counter-majoritarian, but they have done so on the basis of an argument from popular sovereignty. The formal acceptance of constitutional legal materials from outside that system is, to say the least, inconsistent with the traditional understanding of the compact between the governed and the government.

Yes, of course, such measures could gradually be introduced by judges whose constitutional philosophy is something other than democratic self-government; if Justice Breyer and four other justices were to do so over time, revolt would not ensue. But it would not be consistent with the legitimacy and democratic constitutionalism as the United States has understood it. And if the justices and the Federal courts generally were to move along that road in decisional ways, then it would seem to me quite appropriate, in response to that radical and undemocratic change in the US constitutional system, for the Congress to take the equally radical but entirely democratic step of stripping the Federal courts of certain matters by which to preserve the balance of democratic governance which the courts would have misguidedly and highhandedly disturbed.[17]

(Update: Go to notes, post 5, here.)

What's the big deal about foreign law in US courts? Part 3

There is, of course, the practical point that Justice Thomas pointed out in Knight v. Florida, that “were there any support [for defendant’s argument] in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”[7] It is not especially clear that the citation of foreign case law has any real content - whether done here, in the United States, or abroad. Hong Kong legal scholar Yash Ghai has observed, for example, that in Hong Kong “the approach to the use of foreign cases is not very consistent; they are invoked when the support the position preferred by the court; otherwise they are dismissed as irrelevant.”[8]

And not surprisingly, since these cases are being cited outside the context in which they actually function as law. Not only are they inserted into a judicial context in which they have no immediate provenance, no legitimacy outside the bare words quoted, they also are stripped out of the system in which they actually have provenance and legitimacy. They are bare words on paper: this is not the ultimate meaning of cases in judging, but that is what they must finally amount to, stripped out of one system and pressed onto another. It might just be so much window dressing, a rhetorical flourish - which is what Ghai observes it to be.

This rhetorical function is likely more useful to judges outside the United States in giving legitimacy to their decisions than to judges within the United States. If your constitutional tradition is not very long, or is colonially derivative, then appeal to case law outside your own tradition can carry rhetorical weight. Moreover, the stability and democratic credentials of the state of which a court is a branch also matters – something which seems not to have persuaded Justice Breyer in citing to the court in Zimbabwe. The high court of Zimbabwe has been not just an honorable court, but a heroic one. Yet there is something profoundly wrong in citing to a court (no matter how heroic a role it has played in the losing battle for human rights in that country) that, not of its own choosing, is formally a branch of a cruel and tyrannical state. Perhaps Justice Breyer believed that by citing it, he gave it legitimacy as against Robert Mugabe’s wicked regime. I would respectfully suggest it is Mugabe’s regime to which such action lends legitimacy and that Justice Breyer erred in doing so.

The value of rhetoric from outside your own constitutional system is especially a different matter, however, if one looks to two hundred years of continuous constitutional history. It is not American hubris but, rather, conscientiousness, that urges that judges confine themselves to a tradition that carries legitimacy in part because it defines – by confining them – the sources and limits of that legitimacy.

Yet a sense of personal and communal attachments, social relationships, loyalty and social obligation might still make it seem to a US Supreme Court justice both good and politic to cite to those outside one’s own court system. Within the sociology of the US Supreme Court, it is not very clear how much such personal and social factors play a role, and whether they have the power, over time, to turn rhetorical flourishes into actual jurisprudence. Let me be blunter: it seems to me that Justice Breyer, and to a lesser extent Justices O'Connor and Kennedy, want to be seen as peers by the highly civilized, urbane, distinguished Western Europeans sitting on the leading constitutional courts of Europe and the EU. Our justices want to be members of those intellectual clubs, so to speak (having already joined, also so to speak, all the relevant clubs in the US). One way you do that, within the professional circle of judging, is by returning them the favor of citing them. Within the peculiar intellectual activity of judging, it is one of the highest marks of esteem. I don't propose to prove that last statement; nonetheless, it appears to me that there really are issues of personal connection, socialization, peer relationships, at work here.

(Update: Go to post 4, here.)

What the big deal about foreign law in US courts? Part 2

Enthusiasts of Justice Breyer's approach want to encourage judges to see themselves as engaged in a common global enterprise of judging alongside other judges in other legal systems, in which they are collectively socialized to understand themselves as creating a genuinely global jurisprudence. It should be tempered, to be sure, by local and national concerns, culture, social considerations, and so on – yet it should see itself consciously as also part of a global order. Judges should, on this view, have many interactions with each other, and specifically many face to face meetings in order to develop their sense of identity and community as judges engaged in a common enterprise of creating a global jurisprudence. They should, again on this view, see themselves as engaged in “dialogue” with other courts around the world to help themselves as a community of judges find common ground and approaches to common legal problems – which, as noted earlier, are far from limited to such cross border matters as trade but which should include the death penalty and such “values” issues.

The invocation of "common" legal problems is frequent in this discourse, and it frequently involves a curious elision, in which two separate questions are run together. One is legal matters which are “common” because they cross borders, such as trade or air pollution – the same actual thing, circumstance, or event touches two jurisdictions. The other is a problem which, in any actual instance, exists in a single jurisdiction, but which might also occur in another jurisdiction – such as the death penalty. It is “common,” however, only because it might occur in either or both; it is not “common” because any actual instance involves both jurisdictions. Conflating those two meanings of “common” risks allowing the considerations and analysis of the first, which plainly does require some rules to settle jurisdictional questions if nothing else, to sweep in everything that might occur in some place and another place, such as the death penalty. The first requires some level of interaction; the second does not, but wrapping the two together can convey the impression that it does.

For those who are strongly in favor of such developments, the globalist socialization of judges is intended, over time, to develop genuinely global social and psychological and communal allegiances that will affect how judging is done. Justice Breyer has always been very cautious in his public remarks as to how far the practice is intended to go in affecting the outcomes of US cases - is it intended to be merely rhetorical or something more? But for those who do go farther - Slaughter is one, and I am drawing on her view - this globalist orientation is intended to mark out such practices as US First Amendment case law, among others, as “outliers” to global jurisprudence, and to make US judges conscious of where their jurisprudence is an outlier with respect to global legal trends. It is further intended to be a vehicle for using US courts to deploy their considerable powers in the interests of a globalist agenda. It is not intended merely as a means for judges to extend their knowledge and sophistication in some background sense. Slaughter, for example, intends that American judges cite foreign cases as “persuasive authority, and that where judges do in fact “cite foreign decisions as persuasive … constitutional cross-fertilization begin[] to evolve into something deeper, resembling an emerging global jurisprudence.”(A New World Order, p. 78) And this is to take place as “genuine transjudicial deliberation within a newly self-conscious transnational community.”(p. 78)

Well, we should ask, what on earth could be wrong with that? It is a picture of progress, after all, toward a globalized world that is also a more civilized world, one in which each legal system sees itself as deriving from a higher, universal system of values and law, shared globally, tempering each other by reference to what one's judicial peers worldwide are doing. Surely it is an attractive vision? Certainly it is a vision with many, many believers - good folks who firmly see this as a means to a more just and peaceful world. If it has a fault, on this view, the fault is not with the vision, but with its utopianism and the difficulty of its realization.

My own view is that the vision itself is mistaken; it is a misconceived view of political progress, and a mistaken view of political community, expressed as democratic sovereignty. The problem is not just one of execution. But why?

(Update: Go to post 3, here.)