Transnational Law Blog

Cannibalizing This American Attention Whore

Whenever I run into someone that feels the need to tell me about how they're going to some other country to combat human rights abuses, I think of a comment I left on a previous TLB post entitled, This American Attention Whore. My comment was meant to defend my assertion that the US is more of a police state than China despite China's reputation for executing more people every year than any other country in the world. What follows is a reproduction of my comment:

I'm reluctant to play number games because numbers are always so manipulatable... According to the US Department of Justice, in 2005 there were 3,254 people waiting to be executed in the U.S. of A. I'm not sure how anyone can say that more people have been executed under the compulsion of state in China than anywhere else in the world when those numbers have never been released by the Chinese government. People at best have estimates and those estimates range from 1,000 people in 3 months to 15,000 in a year. It all depends on which organization you're getting your numbers from or what renegade Chinese person has decided to badmouth his homeland because he or she has been wronged. The fact remains that the US has over 3,000 human beings locked away in a cell awaiting their deaths. If you're not one for the death penalty, then this number should appall you. If you are a proponent of the death penalty, and maybe you think it has a good deterrent effect, then maybe China is your kind of place and you think the US should pick up the pace. Apparently, China is more efficient than the US is about killing people sentenced to death, and it's obviously having the desired effect, which is less crime and less fear.

Of course, none of this changes the fact that the US still has more people in prison or jail than any other country in the world. The US also has more cops, more lawyers, and a very overworked and active judiciary. You say that's the price for security, and I query, "What security?" I can walk the streets of any Chinese city without fear and without worry that I'm going to be accosted or robbed. Yet, back in the U.S. of A. where we have more cops and supposedly more security, two people were shot dead two blocks from our law school just before spring semester ended. Don't remember? Check your Hastings email because the Dean sent out a letter explaining the situation and using it as a justification to maintain increased security on campus. My fellow law students are afraid to walk around the neighborhood at night. Is this the security that you're referring to in your comment? Because if it is, then I'll take the couple thousand executions in China as opposed to the hundreds of thousands that are imprisoned in the US.

And let us not forget to query who is China executing? People make statements like China executes more people than any other country and we're all supposed to put a tissue to our eye and think, "Thank god almighty I don't live in that heathen commie country!" The people being executed in China are not all saints, they are some bad dudes. For instance, one of the people executed in 2004 was a murderer and rapist. He murdered 67 people, and he would use hammers and meat cleavers to kill entire families. Now I know that in the US we might have put him in a cell right next to Charlie Manson and we would have all pondered the horrors of his bad deeds and every couple of years we'd send in a journalist to find out how he is doing and make sure he is getting enough bologna sandwiches. However, that shit does not fly in China, the Chinese killed his murdering ass. If you want to cry about it, well, it's a free country, go ahead-- hell, they would even let you cry about it in China.

I also noticed you threw out a bunch of fancy lawyer speak about the US Constitution. Last time I checked, which was pretty recently, China also has a Constitution and they also have a judiciary. Hell, they even let people appeal their death sentence now. As Americans, what we need to keep in mind is that we grew up in a country that has seriously hated anything having to do with communism for a long time. Not to mention, we blame the Chinese for a few blemishes on our national pride. Take for instance a little incident we call the Korean War and the Chinese call the Repulsion of the American Aggressors. We also shouldn't forget that the Soviets and the Chinese made our job in a place called Vietnam practically impossible.

We're prejudice. Frankly, Americans think they have it all right and the rest of the world is wrong, and Americans believe their way of life is so right that they even go out of their way to help these less fortunate people that have to live in these horrible places like China. Back in America, they try to drum up support for their causes by printing wild stories about thousands upon thousands of people being executed when in actuality they have no hard data. Why do they do this? I don't know. They got tired of watching American Idol and suddenly they decided they were going to help other people. The problem is that Americans fail to realize that not everyone in the world wants to live like they do. Not all the women in the world want to wear pants and have a career. Not all of the governments in the world believe that freedom comes from imprisoning a large portion of society. As shocking as it may seem, many people in the world prefer to squat rather than sit on a porcelain bowl.

Read once more what Sheehan said in her resignation. Sheehan is a woman that did all she could to stop the American war machine, to free us from the police state, and she was pushed down from every side until she was broken. The powers that be in the US-- republican, democrat, liberal, conservative-- let me make it easy, the people who are making the most money (we're all making money off it) from the war machine, the police state, the military industrial complex-- did not want her to succeed. None of us wanted her to succeed because none of us truly want the system to change. We like our jobs and we like our toys and we like our status and it comes from war. Change the system? We are the system. Change it from within? How? We were raised in the system. All we know is the system. Without the system we're lost. Destroying the system for us is tantamount to suicide. To fix the system we would have to collectively reformat our minds, wipe the slate clean, but then who would reprogram us? You can drop-out as an individual but you'll never be able to think outside the parameters of your American upbringing. It will always taint your every thought and motive.

Freaked out yet?

In his "Military Industrial Complex" speech, President Eisenhower said, "This conjunction of an immense military establishment and a large arms industry is new in the American experience. The total influence -- economic, political, even spiritual -- is felt in every city, every State house, every office of the Federal government. We recognize the imperative need for this development. Yet we must not fail to comprehend its grave implications. Our toil, resources and livelihood are all involved; so is the very structure of our society.

"In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together."

Ponder whether unwarranted influence has taken acquisition of the government. Consider whether we take things for granted; whether misplaced power exists and persists; and whether the American citizenry is alert and knowledgeable. Then tell me whether our methods are peaceful and if peaceful methods are being used to fulfill our goals. Tell me whether we have failed President Eisenhower or if he somehow failed us. Tell me whether the military industrial enterprise could have had any other outcome. Then, and only then, will I even begin to ponder whether the Chinese should or should not execute murderers and rapists in their own country.

Libya, Lockerbie, and the Hazy Line Between Law and Politics

Several news sources are reporting that the five Bulgarian nurses and Palestinian Doctor convicted of infecting hundreds of Libyan children with HIV have had their death sentences commuted to life in prison by Libya's highest court. The case, which has been moving through Libya's court and appeals system for more than eight years, has become the focus of intense international scrutiny, as many countries and international health organizations have questioned the strength of the evidence against the convicted medical workers.

The ruling today was hailed as a step in the right direction by Bulgaria, the EU, and the US, but there has been no final decision on whether the medical workers will be allowed to return to Bulgaria. The commutation of the sentences came as the families of the infected children agreed to a final settlement of the payment of $1 million US dollars for each child infected.

Something that has received somewhat less attention, however, is the apparent link between the trial of the six medical workers and the trial and conviction of Abdelbaset Ali Mohmed Al Megrahi, a former Libyan intelligence officer, in the bombing of Pan Am flight 103 in 1988. The Los Angeles Times reported in 2001 on a speech given by Libyan leader Moammar Kadafi suggesting that the CIA or Israeli intelligence service was behind the "experiment on the[] children" and promised the medical workers would face "an international trial, like the Lockerbie trial." And, according the Bulgaria's foreign minister, from 2001 to 2005 Kadafi repeatedly offered to exchange the six medical workers for Al Megrahi. In a somewhat surprising twist of events, last month the Scottish Criminal Cases Review Commission agreed to allow a reopening of the case against Al Megrahi, citing new evidence that has come to light since his conviction.

Conceding that there may be the makings of a conspiracy theory entwined in the facts just stated, both cases (the Lockerbie trial and that of the Bulgarian/Palestinian medical workers) serve as examples of just how intensely political cases against foreign nationals can become. The fairness of the trial and validity of the evidence against the accused have been strongly questioned in both cases. For these accused, it seems the line between the law and politics may be incredibly difficult to ascertain.

Feinstein Introduces Legislation to Close Detention Facility at Guantanamo

Dianne Feinstein introduced legislation to close the detention facility at Guantanamo Bay, Cuba. The legislation requires that within one year of enactment the President shall close the Department of Defense detention facility at Guantanamo Bay. All of the prisoners at Guantanamo shall be transferred to a civilian or military facility in the United States and charged with a violation of U.S. or international law for prosecution in a civilian or military proceeding. Interestingly, once the detainees are within the territory of the 50 states, then the multitude of questions concerning whether the protections of the Constitution apply to the detainees will be greatly narrowed. Over at Opinio Juris, they query whether this legislation will also eliminate military commissions as they have been set up under the Military Commissions Act?

At Balkinization, they posit that the current administration is unlikely (or reluctant) to move the detainees to the United States because it will increase their constitutional rights. Balkinization argues that it is more likely that if the detention center at Guantanamo is closed, then the prisoners will not be moved to the US but will be moved to a detention center closer to the battlefield or to countries such as Libya where the chances of the prisoners being tortured is even more likely. "All of which is to suggest that although 'Close GTMO Now' might be an understandable sentiment, it doesn't answer the question: What then? A better idea would be for Congress to require that due process and some form of meaningful judicial review be provided at GTMO and at other detention facilities around the globe."

A press release from the Feinstein website quoted the Senator as saying: “I believe this legislation works in our national interest in several ways. First, it helps to remove a symbol that directly harms our reputation as the world’s leader in support for the rule of law. Closing this facility will restore our moral authority, and make our nation more effective in the fight against global terror. And conducting trials elsewhere, either in the United States or before internationally recognized tribunals, will give these proceedings a credibility that they would likely not have if they were conducted at Guantanamo Bay.”

URGENT: Join the CA Legal Community's Lobbying Efforts to Restore Habeas Jurisdiction

Attorneys are currently working to lobby members of the House and Senate to pass legislation to restore habeas jurisdiction for aliens being held as enemy combatants. Thus far, signatures have been collected in Illinois, Maine, Minnesota, Oregon, New York, Virginia, and Colorado.

In California, this effort is being spearheaded by Farschad Farzan of Bingham McCutchen. If you're an attorney and you would like to add your signature or help, then please contact Wenda Huang at Bingham McCutchen ([email protected]) ASAP. Also, please pass this information onto any colleagues or friends that may also be interested in lobbying to restore habeas.

Below is the body of the letter sent by the Illinois legal community, and although it was sent prior to the passage of the Military Commissions Act of 2006, it still captures the essence of what the legal community is still trying to accomplish:

Dear Congressperson:

We are members of the Illinois legal community who are concerned about the ongoing efforts to remove jurisdiction from the United States District Court in Washington, D.C. over habeas corpus claims brought by Guantánamo Bay prisoners. As you know, in Rasul v. Bush and Hamdan v. Rumsfeld, the United States Supreme Court ruled that the federal court in Washington, D.C. has jurisdiction to hear those claims. Congress is now considering doing what it refused to do last fall in the Detainee Treatment Act – retroactively strip the federal district courts of jurisdiction to hear the pending Guantánamo habeas claims.

Some of us have experience as prosecutors, some as defense counsel, and others of us have not been directly involved in the criminal justice process. Some of us are Republicans, some of us are Democrats, and some of us are unaffiliated with either political party. What we have in common is our commitment to due process and the rule of law, the pillars of our nation’s proud legal tradition.

Currently, only ten of the approximately 460 men held at Guantánamo have been charged with war crimes before military commissions, and plans have been announced to charge the 14 men recently transferred there from CIA prisons. That leaves approximately 435 men who likely will never be brought before a military commission. For these 435 men, habeas corpus is the only meaningful method of challenging the legality of their detention. These men have filed petitions for habeas corpus, and they have been held for four and one-half years without being heard by an impartial tribunal.

If enacted, the proposed legislation would effectively authorize the Executive Branch to detain indefinitely anyone it deems an “enemy combatant” without charging them with a crime or treating them as a prisoner of war. As an example, someone who was detained because of mistaken identity will have no right to establish that fact before an impartial tribunal. The right of habeas corpus was enshrined in the Constitution by our Founding Fathers as the means by which anyone, who is detained by the Executive, may challenge the lawfulness of his detention. It is a vital part of our system of “checks and balances” and an important safeguard against mistakes which can be made even by the best intentioned government officials.

We urge you to uphold the fundamental rights that countless Americans have fought and died for, and to oppose any legislation that would strip the men at Guantánamo and others of the right to challenge their detentions in a court of law. Thank you very much for your consideration of the views expressed in this letter.

Please download and read the following: (1) A memorandum that more fully describes what is happening; (2) the model California letter that hopefully many attorneys will sign onto; and (3) the Illinois letter, which includes the signatories.

Time is of the essence, the plan is to present these letters on May 1, and every signature counts! Please spread the word!

[UPDATE: Also, check out a similar statement released by the Constitution Project on The University of Chicago Law School Blog.]

Keeping the Act for Special Procedures

One of the hallmarks of the Human Rights system in the United Nations is the Act for Special Procedures which allowed the Commission on Human Rights to appoint individuals or working groups to examine areas of international law and create manuals, guides, draft resolutions, etc.  These documents are indisputably some of the most important on international law given the breadth of their coverage and findings which often serve as the basis for international treaties, resolutions and declarations, as well as evidence of rules of customary international law.  For example, it was Cherif Bassiouni, as an independent investigator for the UN, that broke news on the existence of secret prisons by US forces in Afghanistan.  Despite that fact, and as Amnesty International notes:

The UN Human Rights Council is currently discussing changes to the Special Procedures through a review, which must be completed by June 2007. Despite the clear need for the Human Rights Council to strengthen the Special Procedures, several states are instead proposing changes that would cripple the ability of Special Procedures to promote and protect human rights effectively.

By eliminating the role of special rapporteurs and independent investigators, the UNHRC would become greatly crippled in its ability to assure the promotion and protection of human rights, but also in assuring that rules of international law, generally, are flushed out and defined.  I encourage everyone to sign the global petition which calls on the UN to maintain the Act for Special Procedures.

UN Human Rights Council fails to Address Abuses in Iran

Opinio Juris does a great change detailing the disappointment surrounding the recently established Human Rights Council, which was established to replace the UN Commission on Human Rights.  The Council was established to combat the ineffectiveness of the previous Commission.  Yet now, it seems to be plagued by the precise political biases which hurt both the General Assembly and Security Council in enacting comprehensive responses to human rights concerns.  Specifically, the Council completely failed to recognize the significant human rights abuses committed in Iran in the past few years, particularly under the leadership of President Ahmadinejad.  As Human Rights Watch correctly notes in their recent statement:

Twenty-five of the council’s 47 members favored ending scrutiny of both Uzbekistan and Iran. Among the 25 states are many that have consistently aimed to shield abusive governments from criticism. But in this case they were joined by virtually the entire Africa group, including Gabon, Ghana, Mali, Mauritius, Nigeria, Senegal, South Africa and Zambia, which had previously supported human rights protections. Surprisingly, Brazil, Ecuador, Japan and South Korea abstained on both votes. Mexico and Switzerland abstained on the decision to discontinue consideration of Iran, while voting to maintain consideration of Uzbekistan.

This is shocking, when one considers that in this month alone the Iranian government arrested 38 women’s rights defenders in Tehran for gathering in a peaceful protest in front of the Islamic Revolutionary Court in violation of both the Iranian Constitution and international human rights norms.  In order to present itself as a legitimate mechanism for human rights, the Council, especially in these initial deliberations, cannot lose foresight of the fact that just like the ICC, its credibility is based fundamentally upon the perception that it acts without bias.

That being said though, I have to disagree with Elizabeth Cassidy on one point.  There is nothing wrong with the Council criticizing Israel at this point, nor should the Council's singling out of Israel distract us or justify the fact that Israel is committing gross human rights violations.  While the protection and promotion of human is universal, we cannot deny the fact that some states at at better safeguarded in their abuse of human rights then others.  In particular, when countries in the developed work, particularly those with superior military and political strength, such as Israel and the US, trample human rights, it is difficult absent continuous recognition of those abuses to pressure for reform and changes.  The fact is, Iran will be sanctioned by the international community both monetarily and politically.  It will be deprived of economic trade and will be condemned not only by NGO's but also by the most powerful actors in the world.  Israel, however, won't be and its not because they have a better human rights record or are acting in good faith with their international obligations.   In summary, the criticism against the UN Council should not be for its selective accountability, per se, but rather its failure to address human rights everywhere rather than one place.

The Moral Authority of Amnesty International -- Losing its Bite?

This past week The Economist ran a leader (and an accompanying critique) chastising Amnesty International for its expanded focus on social and economic rights in recent years. The Economist argues that taking such a broad view of "human rights" effectively weakens the truly universal ones--viz. political rights.

Amnesty's mission has indeed evolved over the 45+ years since its inception. AI was established in 1961 as a nonprofit organization dedicated to creating "a permanent international movement in defense of freedom of opinion and religion." For its first 30 years, the scope of AI's work remained relatively narrow--concentrating on 'prisoners of conscience' for the first 10 years, and then launching a series of campaigns: against torture (1972), against state-sponsored killings (1983), and for protection of refugees (1985). AI also began to receive world-wide recognition and commendation for its efforts. It received consultative status with the UN, UNESCO, and the Inter-American Commission on Human Rights (among others) in the 1970s and 80s, and received the Nobel Peace Prize in 1977 and the UN Human Rights Prize in 1978.

However, on its 30th Anniversary in 1991, Amnesty adopted a new mandate for the scope of its work--"a world in which every person enjoys all the human rights enshrined in the Universal Declaration of Human Rights [UDHR]." The UDHR (and consequently, AI's new mission) consists not only of those rights one might intuitively associated with freedom and democracy (equality; life; liberty; bodily integrity; expression; suffrage; due process; no ex post facto laws), but also several more nebulous--and perhaps, arguable--ones: privacy in one's home, family, and correspondence; rights to one's honor and reputation; rights to leave and re-enter one's country; rights to freely marry and protection of the family; and rights to work, leisure, food, clothing, medical care, and education.

Consistent with its new mandate, several of AI's more recent campaigns incorporate these so-called economic and social rights. The "Stop Violence Against Women" campaign, launched in 2004, condemns "discrimination in law, social practice, and attitude" against women--at the hands of "the state, community and the family." While The Economist's review of this particular campaign emphasizes its socioeconomic aspects (equal access to healthcare and education), murder and rape are the issues promoted at its core. AI's other campaigns further illustrate its expanded focus. AI's "Poverty and Human Rights" campaign contends that "[e]veryone, everywhere has the right to...adequate housing, food, water and sanitation, and to education and health care"; AI's "Economic Globalization and Human Rights" campaign calls on businesses to analyze their own 'complicity' and 'sphere of influence' in the realm of human rights; and AI's "Global Control Arms" campaign (in conjunction with Oxfam and IANSA) seeks to "ease the suffering caused by irresponsible weapons transfers."

Ultimately, The Economist argues, the widened scope of AI's "human rights" mission dilutes the strength of those truly inalienable ones. Exactly which rights are universal is an issue on which nations are not entirely in accord. For example, the constitutions of France, Germany, and the US make no mention of universal rights to education, work, or healthcare; those of India, South Africa, Japan, and Mexico do. In the view of The Economist, these socioeconomic goods are best thought of as second-order determinations: While "[f]ood, jobs and housing are certainly necessities...no useful purpose is served in calling them 'rights'...Who should be educated in which subjects for how long at what cost is a political question best settled at the ballot box." Instead of focusing on these social and economic concerns, The Economist suggests that AI return to its roots--by focusing on the continued forced labor camps in China or the recent, bloody repression going on in Zimbabwe. At present, AI's broader focus does not appear to be affecting its contribution revenues (at least in the US), but the article does suggest there is perceptible hand-wringing in its upper echelons over concerns that its once powerful voice as a 'moral authority' has been muffled.

The Pepperdine Symposium about the War on Terrorism - Part 2

Panel 2: The President's War Powers and Congressional Authorization

The second panel of Pepperdine's symposium was an examination of the scope of the President's military powers under Article II, focusing on when he can act unilaterally and when he must have the approval of Congress. At least that's what the symposium schedule said, but it turned out be an endorsement of the President's broad unitary power and a condemnation of Hamdan. The panel discussion began with an introduction by Pepperdine Law School Professor Bernard James, which included a brief discussion of the Prize Cases and Youngstown.

The first speaker was supposed to be Akhil Reed Amar, the famed constitutional law scholar and progenitor of the geostrategic theory of constitutional interpretation, but he was unable to attend. In his stead, Robert Pushaw, a Pepperdine law professor and the symposium organizer, read a letter from Amar, elucidating some of Amar's ideas regarding the role of the executive in a time of national crisis. Pushaw infused the reading with his own vivacious sense of humor, which made for a very informative and amusing oration, setting the tone for the entire panel discussion.

The Pepperdine University School of Law Symposium on the War on Terror - Part 1

The Pepperdine University School of Law held a symposium, Friday, January 19th, entitled, "The War on Terror: What are the Roles of Congress, the President, and the Courts?" It featured three panels covering different aspects of the war and an all-star cast of attorneys and academics. It quickly became evident that the opinions being expressed at this symposium would be drastically different from the opinions expressed at the UC Hastings symposium about the War on Terror. During the course of the Pepperdine symposium, President Bush was compared to FDR; the Hamdan v. Rumsfeld opinion was denounced as the worst Supreme Court decision since the Dred Scott opinion; and the unitary executive theory of presidential power was vehemently defended. No, this wasn't UC Hastings, the liberal law school that makes me feel like a moderate, this was a conservative stronghold, and I've never felt so much like a radical!

In The Art of War, Sun Tzu wrote, "If you know both yourself and your enemy, you will come out of one hundred battles with one hundred victories." Consequently, whether you're a conservative or a liberal, you need to know these arguments. They're being made everyday in newspaper editorials, blog posts, classrooms, courtrooms, Congress, and the White House. These arguments determine the fate of numerous human beings, including soldiers, detainees at Guantanamo, nations, and ultimately YOU! These arguments will determine who is an enemy combatant; whether the President can authorize warrantless, domestic wiretapping; whether the President can unilaterally declare war; whether the President can declare a federal statute unconstitutional and not binding on his power; and whether the President can increase the number of troops and possibly start a draft. I'm not an expert in these fields of law but these people are, which is why I present them to you for your erudition. To properly excercise our collective voice as the People of the United States, it is crucial that we understand what is happening, how it is happening, why it is happening, and who is responsible.

Panel 1: Terrorism and Separation of Powers

The first panel was a dialogue between John Yoo, professor of law, UC Berkeley, and Neal Katyal, professor of law, Georgetown University, and lead counsel in the Hamdan case. Professor Yoo's work has been compared to The Prince by Machiavelli. An article by Salon.com paints an interesting portrait of Professor Yoo:

"If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?"

"No treaty," replied John Yoo, the former Justice Department official who wrote the crucial memos justifying President Bush's policies on torture, "war on terror" detainees and domestic surveillance without warrants. Yoo made these assertions at a public debate in December in Chicago, where he also espoused the radical notion of the "unitary executive" -- the idea that the president as commander in chief is the sole judge of the law, unbound by hindrances such as the Geneva Conventions, and possesses inherent authority to subordinate independent government agencies to his fiat. This concept is the cornerstone of the Bush legal doctrine.

Professor Yoo's statements at the Pepperdine Symposium had three main points. First, the President can unilaterally intitiate a war. It is not necessarily true that the President needs the approval of Congress to engage in an armed conflict, nor is it necessarily true that the President makes better decisions by consulting with Congress. Second, once the Nation is engaged in a war or armed conflict, the President has greater authority to make military and strategic decisions. Lastly, the Judiciary has taken on an unprecedented role by reviewing the decisions of the executive without waiting until the conflict has concluded. Decisions like Hamdan are a remarkable expansion of the Court's authority into areas that have traditionally been considered outside of the Court's sphere of influence. The recently passed Military Commissions Act of 2006 is Congress's attempt to curb the Court's abuse of power.

You can download Professor Yoo's lecture here, and it also has an introduction by James McGoldrick, Professor of Law, Pepperdine University: Download yoowithintro.mp3

Or you can listen to it here:

Unfortunately, Professor Katyal requested that his presentation not be recorded, and out of respect for him and his work, we have acquiesced. As one would expect from the lead counsel of a landmark ruling, Katyal's lecture was amazingly inspiring and enthralling. I highly recommend visiting NPR for an article entitled, "Hamdan v. Rumsfeld: Path to a Landmark Ruling" which explicates Katyal's work representing Salim Ahmed Hamdan. What follows below is a summary of Katyal's lecture.

Katyal began by addressing the recent comment made by Cully Stimson, deputy assistant secretary of defense for detainee affairs. Stimson's comment was essentially that corporate CEOs should pressure their law firms to not represent detainees being held at the naval base in Guantanamo Bay, Cuba (see David Luban's post at Balkinization for his incisive commentary and the audio). Katyal said that the War on Terror is going to transcend political administrations, and poses incredibly difficult decisions that have to be made, which demand the best in advocacy by both sides. The result of that is that we need to find mutual respect as advocates and as people of the academy toward those on the other side. "There has been a lot of acrimony on both sides and once we start seeing this as a long term threat instead of a short term political issue, then I think that provides the way forward, and the way forward is not name calling, not sloganeering, but just trying seriously to think about these ideas." As a consequence, he said that he will criticize some of the views expressed by Yoo but he will not criticize the man.

Katyal said that he supports the unitary executive theory because the underlying idea behind the theory is one of political accountability. Many of the decisions that people are taking issue with today are one's where there is no political accountability. The decisions were made in secret and the reasoning behind the decisions remain secret. When decisions are made in secret, then it undermines the foundation of the unitary executive theory, which is political accountability.

He said that Hamdan was about the executive disregarding treaties and statutes. The reasoning of the executive is that any treaty or statute that conflicts with the President's commander-in-chief power is unconstitutional. The Hamdan opinion came down the way it did as an attempt to stop the assertion of raw executive power that was being used to disregard statutes such as the Uniform Code of Military Justice and treaties such as the Geneva Conventions. The administration's position in the Hamdan case was that it did not have to give the "rights indispensable to all civilized peoples," as stated in Common Article III of the Geneva Conventions, in tribunals set up by the President when the death penalty or life imprisonment are on the line. Katyal acknowledged that this would be a hard position to argue given that the Geneva Conventions were ratified by a two-third majority of the Senate. This is typical of the administration, which continues to creatively interpret statutes and treaties to argue that they do not constrain the executive's power. Katyal said that he understands how this constitutional reasoning can apply in the short term, but it fails to make sense in the long term when Congress has had an opportunity to speak on the issue.

Moreover, he said that the Military Commisions Act of 2006 (MCA) only affects people who can't vote, the people who are the most powerless in our society. If you're an American citizen, then the MCA has nothing to do with you; i.e., the only way the MCA will effect you is if you're a green card holder or not a citizen of the USA. If you're not a citizen, then you get sent to Guantanamo and stripped of your habeas rights. Also, if you are not a citizen, you get sent to a special tribunal where the death penalty could be on the line, but if you are a citizen, then you get the "cadillac version of justice, the American civilian justice system." Historically, military commissions have never functioned in this manner. Citizens of the USA have always been subject to military commissions. Never has there been this kind of "slicing and dicing" of the population; the MCA is not a generally applicable statute.

He said that the MCA will ultimately be struck down because America stands for some fundamental principles and some fundamental values. "No matter who you are, you have certain basic fundamental rights-- you're treated fairly, it doesn't matter where you come from." He invoked the words of Justice Scalia, concurring in the Cruzan case, who said that the genius of the equal protection clause is to make sure that laws have to effect people equally and symetrically. He goes on to argue that if that's done, then the laws will ultimately look fair. When the population is "sliced and diced" as it has been by the MCA, then the people lose that structural guarantee. Moreover, organizations like Al Qaeda will use USA citizens whenever possible. When a citizen commits the same crime that a foreigner commits, he or she should be held to the same standards, and whatever that standard is, it has to be applied symetrically to citizens and foreigners alike. The MCA says that if you're accused of being an alien enemy combatant on United States soil, then you have no access to habeas corpus. Ever since Ex Parte Milligan that has not been the law. Katyal predicts that the MCA will be struck down by the Court for this reason.

He also said that he thinks executive power now is weaker than it has been in a long time. Agreeing with Professor Yoo, he pointed out that courts traditionally do not second guess the executive in times of war. If you're the President, it's really hard to lose a case in the Supreme Court during a time of war, but this administration has managed to do it three times. He thinks it's partly because of the positions the administration took and partly because there are not enough internal checks and balances-- a separation of powers-- within the executive branch. He said that people on both sides need to start thinking about how we resuscitate the tradition of divided government within the executive branch itself. For example, some rivalry between the state department and the defense department; i.e., how do we create overlapping jurisdictions in different departments to create some of the necessary friction that leads to better policy results?

The America he seeks, the one that makes him deeply patriotic, is the one that gives people oppotunities based on who they are and not where they came from. He concluded with the same quote he used in concluding his oral argument before the Supreme Court when presenting the case of Hamdan, which is a quote by Thomas Paine: "He that would make his own liberty secure must guard even his enemy from oppression. For if he violates this duty, he establishes a precedent that will reach unto himself."

Following Katyal's presentation, Yoo was given an opportunity to rebut Katyal's assertions and then Katyal was given an opportunity to also rebut. You can download this part of the panel discussion here: Download panel1rebuttal.mp3

Or you can listen to it here:

You can also download the question and answer session here: Download panel1QA.mp3

Or you can listen to it here:

Happy Takes-giving: Anecdotes from the PRC

[This post was initially published on June 16, 2006 from Beijing, at a now defunct forum.  I thought it worthy of recycling in light of Travis' recent post, and the potential for a painfully punny title.  The photographs are some of the innumerable, jaw-dropping landscapes Travis and I witnessed in Beijing, last summer.]

chai: v. (1) tear open; take apart. (2) pull down; dismantle.

Over the past few weeks, some classmates and I have enjoyed lunch in the same Beijing alley almost everyday. It has been a true respite from the grimy existence found elsewhere in Beijing. This Haidian District alley is veiled in the shade of tall leafy trees. We were always the only foreigners in view, happy to pay the 4 RMB (U$ 0.50) for a bowl of spicy noodles. The 16 year-old server dropped out of school to work here for her aunt and uncle. She sends money back to her family in the countryside each chance she gets.

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China is home to about 70% of current construction sites in the world. Life in Beijing (and elsewhere in China) occurs against the incessant backdrop of this construction. Dust allies with less benign particulates to blacken the inside of one's sinuses. From sunrise through sunset, the lullabies of cranes and sledgehammers wax and wane. In this ancient and crowded city, such a scale of development can only occur to the detriment of pre-existing structures and the individuals and communities that call them home.

The Communist Party's rash employment of eminent domain, and its effect in disincentivizing productive use of land have long been a blemish on both the economy and human rights in the People's Republic of China. (See The Economist's survey of China from March 23, 2006.) This post only endeavors to encapsulate the injustice such a practice embodies.

Yesterday, [June 15, 2006,] we emerged from classes seeking the solace of a nice cool plate of la mian (spicy wheat noodles.) We turned the corner into "the alley" only to find our daily lunch destination in tatters. Cooking equipment, plates, and half-cooked food covered the patio. Exhibiting a Chinese cultural obligation not to share your misfortunes with others, one of the owners and her neice/waitress stood amongst the mayhem with forced smiles. (The photos below are of "the alley" yesterday.)

The proprietors received 48 hours notice that their livelihood would be taken out from under them. Not believing the Party would mobilize at such short notice, they were serving lunch when the demolition crew arrived. The crew gave them 30 minutes to remove everything of value from the restaurant. The proprietors told us that they are being given no compensation or relocation assistance. Professor Alfred Palaez, a Chinese law expert at Duquesne University School of Law, guesses that their next destination will be the suburbs of Beijing. The economic opportunities available there are certain to fall short of their formerly popular hang-out in the Haidian District.

Every restaurant on the same block of "the alley" was in a similarly subjected to chai, (defined atop this post.) This is not at all uncommon in Beijing, ahead of 2008. Some of us just discovered another strip of restaurants in Haidian District, off of Xueyuan Lu, where locals congregated in the hundreds to watch the World Cup on about a dozen 19-inch televisions. The character, chai, painted in red upon the stubborn wall atop this post. Chai also adorns the still-intact walls of those restaurants entertaining the local football/soccer fans, just down the street. This strip, too, is set for demolition by the end of June. Again, the locals assert that no compensation or relocation assistance is being extended by the Party.