Benjamin Wittes looking very prescient in Supreme Court decision to revisit Guanantamo detentions

The announcement by the Supreme Court that it has again decided to take up the terms of Guantanamo detention - WaPo article here - makes Benjamin Wittes' brilliant, new Policy Review essay, "Terrorism, the Military, and the Courts," look ever more prescient. I mentioned Ben's essay before on this blog; RealClearPolitics picked up Ben's piece yesterday, which I hope will generate wide readership. You can get to the pdf at the Hoover Institution's Policy Review, here. I hope many, many people will read it closely.

Books on Paris

I've had occasion to read a bunch of books on Paris over the last couple of years as the family has been able to stop through on various trips to Europe. The usual travel guides, high brow travel essays, low brow shopping guides, high-low shopping guides, history books, accounts of the city of Paris - published in English over the last couple of years. They include all the ones you usually see on the bookshelves, such as Adam Gopnik's Paris to the Moon or the just-out Maribeth Clemente, The Riches of Paris: A Shopping and Touring Guide or Sarah Turnbull, Almost French: Love and a New Life in Paris. (Clemente's shopping guide is actually helpful, my wife tells me - my shopping in Paris is more or less limited to books on Rene Char and expensive chocolate. Gopnik's best seller is quite amazing in just how geographically limited it is in Paris - as though, living on the Rue Bac, he had set out a mere 10 square blocks of the Upper East Side in Manhattan starting at Fifth Avenue and the Park and then had written an entire book on New York located there.)

Among the historical accounts of Paris are Alistair Horne, Seven Ages of Paris, Leonard Pitt, Walks Through Lost Paris, Jacques Yonnet, Paris Noir: The Secret History of a City, and Andrew Hussey, Paris: The Secret History. Each of these histories of the city is really quite excellent, but my favorite is Hussey's, which I read on this latest trip - the book lies somewhere in the category of higher journalism and lay (but impeccably researched, so far as I can tell) history. Hussey has a deep knowledge of the city, and its place in the history of France and Europe - the book is almost a miniature history of France in Europe. I strongly recommend it for anyone spending any time in Paris or just curious about the history of France.

There are also more specialized books that have also taught me a considerable amount - William Wiser, The Twlight Years: Paris in the 1930s, for example, which explores the last years of the Third Republic (and also caused me to finally understand just how entirely marginal to the intellectual and artistic life of Paris all those romantic American artist-expats really were, as it describes their homeward drift as Europe fell apart). (I'm leaving aside general books on French politics or works by French politicians, such as Dominique de Villepin's The Shark and the Seagull.)

My apologies for missing the Vancouver ASIL/AALS meeting

I owe Jose Alvarez and the other planners and conferees of the international law teaching and scholarship panel at the Vancouver ASIL/AALS meetings taking place in the last couple of days a big apology for canceling late and not being able to attend. There was an important and overriding personal reason for not being able to be there and remaining to teach in Europe longer than originally intended, but I know it inconvenienced everyone and created distinct problems of balance on the panel I was supposed to be on. It is an area that interests me a huge amount - the way in which we as international law academics do both scholarship and teaching - and I earlier posted my initial thoughts about this. It's something I am slowly writing about, and I had looked forward, from my own personal perpective, to getting feedback and ideas from others about this area, and I very, very much regret not being able to be at the meetings.

Rene Char back in the Paris bookstores

Rene Char seems to be back in intellectual favor in France, after what seemed to be a long period of decline after his death in the late 1980s. The National Library is doing an exhibition on the centenary of his birth, and new reprintings of his books are back in the bookstores, which was not true even a year ago. I picked up some works that I did not already have, and a couple of cheap school edition copies of his Leaves of Hypnos.

Paris

Just arrived in Paris, ready to fall over from exhaustion - row 47 of 48 on the plane, crying babies and a girl scout troop on excursion. The kids chattered incessantly so no sleep. It's hot here today in Paris but not overwhelmingly so.

For all that, the meetings in DC went well - discussions on national security and civil liberties. Very glad I went.

There is now a Starbuck's at the foot of the Rue Moffetard (sp?). Otherwise things pretty much the same here in the Place d'Italie.

24 hours in DC, then back to Paris

This is somewhat mad, I agree, a twenty four hour detour from London to DC and back to Paris. I have been teaching in my law school's Europe program this summer, just having spent a very lovely week in London. The students in this year's program are excellent, attentive despite the obvious distractions of London. I'm here with my wife, daughter, and our niece, a student at BYU who has just announced her engagement. We've done some plays, some museums, all the usual tourist stuff.

In addition, my younger brother is a seventh or so year associate in tax and private equity in London at Debevoise and Plimpton, and we have had a rare chance to hang out with him and his filmmaker wife, in between her filmmaking (and filmmaking money raising trips) to her native Hong Kong. We spent a nice evening at their Islington apartment eating Kit's fabulous duck, a marvelous chocolate-pear tart and listening to the trubo-charged folk-rock of their ukelele band, in which Kit plays one of eight ukeleles and John plays fretless bass guitar and also serves as producer and mixer and recording engineer. The band has been playing weddings and some arts festivals. If you think that ukeleles are just these little twangy things - like I did - you - we - are greatly misinformed.

I also had a chance to have coffee with Anthony Dworkin, an old friend and editor of the Crimes of War Project website. I was legal editor of the original Crimes of War book, under the general editors Roy Gutman and David Rieff, and Anthony, a journalist and writer who has gradually emerged as a leading expert in these areas, is bringing out a second edition of that book in August 2007. A lot has changed - the important areas of emphasis have changed - of course since the first edition in 1998. If you have the first edition, you need the second edition, and if you haven't seen it at all, you should check it out at the end of the summer - it is one of the most handsome books in the area, well written and expertly edited, and with fabulous illustration and design. Anthony is one of the smartest writers in the general area of security, laws of war, etc., and I hope that he puts all the work he has done over the past decade into a book on the general question of American policy and international law.

Alas, John Ryle was in Sudan this week, not London, and Philip Bobbitt was traveling someplace else too.

Meanwhile, I am actually in DC as I write this, not London. Family went on to Paris, and the students went on to Brussels, where I am not teaching. I have returned to DC for a meeting with folks from the Hoover Institution on counterterrorism policy. I then get on a plane and return to Paris tonight, in time to teach on Tuesday. Crazy schedule, yes, but I thought the meeting was a very important one for my work and writing. In Paris - besides the usual tourist things - I plan to go on a special search for French chocolate, admire in the bookstores first editions I can't afford of Blaise Cendrars and Rene Char, and see the exhibit at the National Library on the centenary of the birth of Rene Char. And purchase another copy in French of Leaves of Hypnos, which has somehow disappeared.

On the airplane back to DC, I read and finished a really funny, viciously sweet, British novel by the London writer AA Gill, Starcrossed. It is explicitly a rewrite - a very, very explicit rewrite - of that sappy 90s Julia Roberts-Hugh Grant romantic comedy, Notting Hill, complete with the American superstar Lee Montana ("rear of the year in fourteen countries, darling") and a London bookshop clerk and aspiring poet, John Dart. It is sexually punchy - I'd love to give it to my fourteen year old to show her that I can like chick-lit if done properly (well, in some alternate universe, maybe), but the sex is too lurid and nasty for her, or at least for Daddy to give to her, although not as much so as in AA Gill's also wonderful earlier London comedy of manners, Sap Rising. It's vicious and tellingly bitchy in many of its asides and social observations; Gill is an expert, so far as I can tell as a non-English outsider, at English comedy of manners. Yet in the end, though, despite all Gill's efforts, and the efforts of the reviewers, to show that he is a nasty prick and misanthropic, even misogynist novelist (this novel did win the bad sex award, and with good reason), he is a romantic, indeed a sentimentalist, who can't resist a sweet and happy ending - think The Red and the Black as farce with a happy, Hollywood ending to the battles between Julian and Mathilde. I thought it was both hysterically funny as well as rather wise on the question of romance and celebrity. I was actually moved, to my own surprise, by the way in which Gill wrapped the last third of the novel into a sort of take on Antigone, and ended the book with a speech by the Chorus - maybe it was just too long a plane ride, but I found myself thinking back to that fabulous production of Oedipus Rex at the ART at Harvard a couple of years ago that I saw by accident on a free evening passing through Cambridge MA in 2004. (Ms. Montana is in London because she has rather unwisely decided to show the world that she can do serious, RSC theatre, even cast as Antigone, with interesting results.) I was also taken with the fact that, against considerable odds, Gill himself is still quite in love with the idea of poetry, even contemporary poetry, and literature as actually revelatory of something in the human condition. Anyway, I liked it (interesting - I find myself saying that rather defensively), whereas Notting Hill made me cringe with embarrassment, it was so sappy.

(The earlier book, Sap Rising, elicited squeals of delight in some quarters and howls of protest in others, which made for a remarkable set of jacket reviewer quotes. The Guardian: "Do not buy this book." Evening Standard: "He writes so brilliantly." AN Wilson: "Extremely badly written, hideously and unamusingly obscene." Marie Claire: "A clever, sexy story." New Statesman: "Frightful pile of garbage." ... Well, perhaps the TLS got it exactly right: "This is a dirty book.")

Okay. Off to my meeting and then back to Paris.

(Ps so here's more about Gill, from a Guardian interview, here.)

Despue de los neocons - my Fukuyama TLS essay in the June 2007 Madrid Revista de Libros

(Por si acaso alguien se interese en una traduccion de mi ensayo sobre el libro Despues de los neocons por Francis Fukuyama. El ensayo aparecio originalmente en el TLS, y esta traduccion en la Revista de Libros de Madrid, No 126, Junio 2007. Es una traduccion magnifica por Luis Gago de la Revista de Libros.)

(At SSRN, here.)

We're in London, teaching in the WCL summer Europe program

We - Jean-Marie, Renee, and I - arrived in London from DC yesterday. I'm teaching international economic law in London and Paris in WCL's European law summer program. It's a great program - the students get exposure to IBT, EU law, human rights, and environmental law in London, Paris, Brussels, and Geneva. We'll be here for just half of it. I guess you'd call it the classic academic vacation - I work (although, to be sure, not exactly horribly so, and in fact far from it) and family plays. With the covered expenses and an honorarium, we about break even - unless Madame Jean-Marie visists a certain Paris boutique called Agnes B, in which case all bets are off. My niece Tracie is also joining us this trip; she arrives tomorrow. There are about 65 students this year, which is pretty good, I understand. Weather, which had been rainy and cool, has turned sunny and bright with our arrival. Jean-Marie's internal clock adjusts effortlessly with the light - she sleeps when it is dark, and wakes when it is light, no matter where in the world. Renee and I have a much tougher time. I have been doing something radical for me, which is to drink coffee, and I have even been handing cups of espresso and milk to Renee, which is probably wicked and will stunt her growth, except that she stopped growing a while back. Today we are mostly just walking around outside to get adjusted to things. The WCL program puts everyone up in the most fabulously centrally located hotel in London - half a block off of Trafalgar Square, on the way to the Embankment station. Unbelievable location. It is great being here. I brought my camera, but I'm not sure I brought any means of getting the pictures out of the camera and onto the internet. We'll see. My brother and his wife are here in London - he is a lawyer in tax and private equity at Debevoise and Plimpton, and these trips are a great way to see family that is far flung. And I'm looking forward to seeing Anthony Dworkin, editor of the Crimes of War site - it's been a couple of years (!), and some other folks too.

Philip Bobbitt and Matthew Waxman join Columbia law faculty

It is not a secret, I suppose, that Columbia Law School, long a center of international law, and despite the presence of major scholars such as Jose Alvarez, Lori Damrosch, Michael Doyle, and others, has nonetheless suffered from one might call - well, call it the NYU syndrome ... Anyway, it has made a major play in the international law and national security law scholar games, so to speak, with two exciting hires this year - the preeminent Philip Bobbitt, and the young and brilliant Matthew Waxman. Here is the press release.

Philip Bobbitt, a leading authority on constitutional law and international security law, served in the White House, the U.S. Senate, and the National Security Council. He joins Columbia from the University of Texas. With scholarly interests that include the history of strategy, Professor Bobbitt holds a Ph.D. from Oxford and a J.D. from Yale. He is a Fellow of the American Academy of Arts and Sciences. Bobbitt has published six books—most recently The Shield of Achilles: War, Peace and the Course of History (Knopf, 2002), described by The London Times Literary Supplement and The Economist as one of the best books of the year. His essays on foreign policy appear in The New York Times and The Guardian (of London). Bobbitt is currently working on a book about terrorism. His interests range beyond the law. He endows the Rebekah Johnson Bobbitt National Prize for Poetry, awarded by the Library of Congress. It is one of the top prizes to recognize the most distinguished book of poetry written by an American and published during the preceding two years.

Matthew Waxman, an expert in the domestic and international legal aspects of fighting terrorism, holds a J.D. from Yale Law School. He clerked for Associate Supreme Court Justice David H. Souter and Judge Joel M. Flaum of the U.S. Court of Appeals for the Seventh Circuit, and served in senior positions at the U.S. State Department, Department of Defense and National Security Council. Professor Waxman was a Fulbright Scholar to the United Kingdom, where he studied international relations. He authored several books on the use of military force as an instrument of American foreign policy.

Congratulations to them, and to Columbia.

DOS legal advisor John Bellinger on US view of international law

Thanks to Jacob Cogan's International Law Reporter blog, here, a link to a very interesting speech by DOS legal advisor John Bellinger on the US view of the role, meaning, and interpretation of interanational law. I should say that I tend to share Bellinger's view of these things. I am simply going to lift an excerpt of the speech from Professor Cogan:

***
Some of you may think it rather bold of me to come to a city renowned for its institutions of international peace, justice, and security and talk about the United States' commitment to international law. It is hardly news that the United States has taken a battering in Europe, particularly over the last few years, for its commitment to international law - or, rather, what is criticized as its lack of commitment.

To put it simply, our critics sometimes paint the United States as a country willing to duck or shrug off international obligations when they prove constraining or inconvenient.
That picture is wrong. The United States does believe that international law matters. We help develop it, rely on it, abide by it, and - contrary to some impressions - it hasan important role in our nation's Constitution and domestic law. . . .

Tonight I will show you how we have kept the Secretary's promise. I will demonstrate that our approach to international law - how and why we assume international obligations, how we implement those we have assumed, and how international law binds us in our domestic system - all reinforce our commitment to international law. In the course of the evening, a few themes should emerge. One is that a reliance on sound bites and short-hand can give the deeply misleading impression that we are not committed to international law. A second is, in fact, deeply ironic: that the very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse. A third is that some of the most vehement attacks of our behavior - although couched as legal criticism - are in fact differences on policy. A fourth and related theme is that our critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law - when we have simply not reached the result or interpretation that these critics prefer.

Pirates, terrorists, and systems of governance

Professor Bainbridge, via Instapundit, posts on piracy and how pirates developed their own codes of conduct and informal rules systems. Here.

In addition to the articles Professor Bainbridge cites, there is a very interesting piece available on SSRN, here, by the always interesting Eugene Kontorovich on piracy as a violation of international law subject to universal jurisdiction. Professor Kontorovich discusses piracy in relation to the requirements of the Supreme Court's decision on the use of ATS cases in Sosa.

Second, of course, there is a long literature on how various enterprises - the informal economy in many places in the world, criminal enterprises, etc. - develop their own rules, rules internal to an enterprise and rules as between them.

Even Al Qaeda developed an internal manual of rules for dealing with things like pensions, benefits, etc. Stanford Law School's Mariano-Florentino Cuellar has a new article out in the Minnesota Law Review suggesting, among other things, that our understanding of Al Qaeda is aided by demystifying its internal governance structures, so as to understand that, along with its premodern ideology, it also has significant modernist structures of bureaucracy, administrative form, etc.

I agree with Professor Cuellar that a clear understanding of these kinds of institutional structures is critically important in understanding Al Qaeda. It is also critical for understanding how to fight it. The interplay of premodern ideology, postmodern ideology, and modernist, indeed Weberian, structures of administration in at least some of its development is very important to understanding and combating organizations such as Al Qaeda.

Benjamin Wittes on counterterrorism policy in Policy Review

Let me enthusiastically recommend Benjamin Wittes' superb new essay on counterterrorism and judicial review in the June-July 2007 issue of Policy Review, available free online here, "Terrorism, the Military, and the Courts."

Ben was formerly the Washington Post editorial writer on law and the judiciary, and is a Guest Scholar at Brookings and now my Hoover colleague as well as a friend. He gives a statement that is about as close anything comes to my own views, and much better expressed.

The "space" that Ben describes in his essay is certainly the space in which I live. From the essay's opening paragraphs:

The terrorist mastermind had slipped through their fingers before, and American forces were not about to let it happen again. At one point the previous year, they had actually arrested him, but not realizing who he was, had let him go. Unable to track him down now, they managed instead to locate and detain his wife and children, who were living in a remote area of Afghanistan. For several days, they interrogated his wife at an air base, but she repeatedly insisted that he was dead. Finally, they tried a new tactic. They noisily put a plane on a nearby runway, its engines running. As the commanding officer later recalled: “We then informed [her] that the plane was there to take her three sons to Saudi Arabia unless she told us where her husband was and his aliases. If she did not do this then she would have two minutes to say goodbye to her sons. . . . We left her for ten minutes or so with paper and pencil to write down the information we required.” Having threatened, in essence, to kill her sons — for nobody doubted what the Saudis would do to them — the interrogators got the information they wanted. And they got their man, disguised as a farm laborer, that evening.

What followed was a protracted habeas corpus action in the U.S. District Court for the District of Columbia. Lawyers representing the high-value detainee decried the coercive interrogation of his wife, the threat to his children, and the savage beating he incurred on his arrest. (The medical officer accompanying the troops who detained him had shouted to the commanding officer to call his men off “unless you want to take back a corpse.”) Human rights groups uniformly condemned the interrogation tactic as torture; major newspapers weighed in on their side. The Bush administration, meanwhile, insisted that the courts had no jurisdiction over any such overseas military action, which had in any event been lawful and had yielded essential intelligence and the capture of a very big fish. As of this writing, the lower courts have deemed themselves powerless to hear the case and the Supreme Court — for now, at least — has not intervened.

Should the courts hear it, notwithstanding an act of Congress that explicitly precludes review? If so, what should they hold? Is such a tactic — garnering information from a mother by threatening to have her sons beheaded by a totalitarian regime — ever legitimate? And who, in a society committed both to law and to victory in a global struggle against terrorism, is to be the judge?

The answers to these questions may seem obvious to many readers. Yet in the years since September 11, 2001, something of a gulf has opened between the views of elites — mostly but far from exclusively liberals — and majority opinion on these questions. That gulf was only accentuated by the Supreme Court’s Hamdan opinion, the resulting Military Commissions Act, and President Bush’s disclosure of the CIA’s secret prisons for high-value detainees. Public opinion has tended to regard these issues pragmatically — tolerating tough measures and contemplating with relative equanimity the deprivation of certain rights to terrorist suspects that are nonnegotiable in a civilian context. While public opinion data is nuanced, the Bush administration’s supposed menace to civil liberties and human rights has not had traction as an electoral issue; to the contrary, its opponents in Congress have feared electoral retribution for hampering the fight. For prevailing opinion in the academy, the press, and the human rights world, however, the standards of international humanitarian law represent moral absolutes, the administration’s flexible approach to them an affront to the rule of law, and the courts the principal line of defense against excessive executive power and its abuse. After all, there are certain things that civilized governments just don’t do. And in functioning democracies, victims of such misconduct, no matter how odious these victims may be, have access to the courts for redress — the threat of tyrannical government being ultimately greater than whatever threat even the worst criminals or terrorists may pose. In the end, the rules that limit governmental power have to be tough and the courts have to be available to make them real.

But let me now confess that I have adjusted somewhat the facts of my opening anecdote, which is, indeed, the true story of the capture of an uncommonly evil and dangerous man: The plane was really a train; the country was not Afghanistan but Germany; the soldiers were British, not American; the year was 1946. And the high-value detainee was not an al Qaeda figure but perhaps the greatest mass murderer of all time: Rudolf Höss, the commandant of Auschwitz. And the resulting habeas litigation, de rigueur today, was beyond anyone’s wildest imagination then. The stark reality is that absent an interrogation tactic that “shocks the conscience,” Höss — like his colleague Josef Mengele — might well have escaped justice, Nuremberg lost its star witness, and history denied his crucial accounts of the factory where 1.1 million people died.

If the tactic — and the absence of any judicial review of its use — does not suddenly seem more defensible, stop reading now. You have proven yourself both a principled opponent of abusive interrogation and truly committed to judicial oversight of legally dicey wartime practices. This essay is not for you. While I admire the certainty of your nonconsequentialism and your faith in judges, I share neither and can only thank God that neither did the British soldiers who captured Rudolf Höss.

This essay, rather, is for those who live in that gulf between the centers of gravity of elite and mass opinion — those not content to give the president a free hand in a messy, unending quasi-war but also suspicious that courts can and should supervise detentions and interrogations and doubtful that such operations are, in any event, easily subjected to absolute moral rules. This is uncomfortable territory, for the slope is indeed as slippery as slopes get — and slippery, I should say, on a hill with two distinct bottoms. At one lies a government capable of torture with impunity, the very essence of tyranny. At the other lies a government incapacitated from expeditiously taking those steps necessary to protect the public from catastrophic attack. Those of us who occupy this space stand vulnerable to the charge of having forsaken American values and to the charge of having done so with insufficient boldness to enable the executive branch to win. In reality, however, this is the intellectual and practical territory in which wars have been won with liberty preserved. If the United States is to win the war on terror now in the context of stable, democratic, constitutional government, I venture the guess that it is within this space — not with a dogmatic commitment to executive power, nor with an undying faith in the wisdom of judges — that it will do so.

My purpose here is to sketch a vision of judicial review in the war on terror for those who live in this space.

Amichai Cohen on proportionality in the laws of war

Several years ago, while I was drafting an expert declaration on the laws of war applicable to the use of Agent Orange in Vietnam, the brilliant young Debevoise & Plimpton lawyer Anthea Roberts, liasing with me for her firm, suggested that I should turn that research into an article on proportionality in the law of war.

Well, true, I find the topic extremely important and interesting, but didn't take it up at the time on the view that it was too obscure for anyone but a few just war theorists or very technical law of war specialists to care about. Then along came the Lebanon-Hizbollah conflict, and I was sorry indeed not to have written up even a straightforward, unanalytic black-letter law discussion that would have been useful, I think, given the quantities of less-than-lawyerly talk that occurred at the time. I blogged a few bits, mostly drawn from that expert declaration, here, here, here, here, and here. I have such a project on the back-burner, but am currently occupied with other things.

Others, however, are doing very interesting and important work on the subject. Amichai Cohen of Ono Academic College, Israel, has two new papers posted up on SSRN, one related to the discussion of proportionality in the recent Israeli Supreme Court opinion on targeted killings, here, and the other a discussion of proportionality in the actual facts of the Lebanon-Hizbollah war, here.

Both are well worth reading. I am still digesting the second, in particular, and have some disagreements with the analysis, but think it a very well considered piece.

On the first, re the Israeli Supreme Court opinion - well, I have a general view that Israeli Supreme Court opinions on these kinds of topics may and often do make extremely good opinions for the particular situation of the Territories. But the situation there is so specialized - such a mixture of laws of war and occupation in a long term situation of terror, war, forced co-existence, attempts to regularize things through odd combinations of municipal and international law, etc. - that I find the situation sui generis, and likewise judicial opinions with respect to it. I think the Court does an admirable job on its own terms, but I don't find those terms very relevant to the general situation of the laws of war, nor do I think the Court is much worried about that issue in any case. The case of targeted killings by Israeli Defense Forces in the situation of the long term occupation and the combined civilian-military justice system that Israel has, quite sensibly, evolved over a long period - well, it doesn't seem to me to help very much in analyzing the application of the laws of war or other law regarding targeted killings elsewhere.