Earlier today the UN Security Council issued Resolution 1636 demanding that Syria cooperate with the Hariri investigation “or else.” OK, it didn’t really say “or else” but that was the gist of it. See a summary of main points here; UN press report here.

The UN press report explained that

The resolution called on all States to prevent the entry or transit of suspects designated by the Commission or the Government of Lebanon and to freeze all assets of such person on their territory.

Moreover,

The resolution determined “that any involvement of any State in this terrorist act would constitute a serious violation by that State of its obligations to work to prevent and refrain from supporting terrorism.”

As CNN summarized:

Last-minute diplomatic haggling deleted a direct reference to the threat of sanctions on the Syrian government, but the effect of Monday’s resolution is the same.

The resolution is under Chapter 7 of the U.N. Charter, which holds open the ultimate possibility of the Security Council considering the use of force with failure to comply.

Russia and China simply would not have voted for stronger wording. But this nonetheless puts Syria in a fairly tight spot as the Security Council’s Chapter VII authority is the diplomatic equivalent of ending your demand with “or else.” Resolutions under Chapter VII must be followed by UN members States. The specifics of that “or else” may require another resolution but under Chapter VII no options are off the table, as certain Washington politicians are fond of saying.

The Hariri Report was the step that made getting a Chapter VII resolution politically feasible. Heated rhetoric alone from the U.S. could not have done this. Now UN member States are required to assist in the investigation. If Syria persists in stonewalling, then UN member States may soon be required to have sanctions against Syria.

But still, isn’t this less direct than the U.S. going in and trying a little regime change? Well, yes, but the point is that what sometimes seems to be the most direct method (hey guys, let’s topple a government!) can be the least effective. Rather, here we see the role of consensus building and coordination. Moreover, as I mentioned in my previous post on this topic, the UN’s role gives a legitimacy to the process that gung-ho unilateralism simply would not have had. And, with legitimacy, we may get a better and more sustainable outcome.

UPDATE
Christopher Le Mon has commented that the full text is available here. Thanks for the link.

This past week, the President of the ICJ Shi Jiuyong addressed the U.N. General Assembly as part of of the ICJ’s submission of its annual report (which can be found here, the President’s speech can be found here). It was, of course, very boring. But it also reveals that the ICJ doesn’t realize the seriousness of the problem I have complained about here and here: the ICJ’s unbelievably light workload and its ridiculously low productivity.

The ICJ President’s speech blithely noted that in the past few years, the ICJ has made great strides to improve its organization and its speed in resolving cases. In the past year, the ICJ reduced its docket from 21 to 11, meaning it has resolved 10 cases over the past year. As the President notes, “[t]he level of activity displayed by the Court over the past years is, simply put, unprecedented in its history.”

With all due respect to ICJ President Shi, he is blatantly exaggerating the amount of work the ICJ has done during the past year (although he may be right that even this little amount of work is “unprecedented”).

The ICJ has actually issued one final judgment in a contentious case during the past year: Benin v. Niger, which was an expedited arbitration-like proceeding involving a specially constituted chamber of the court.

It removed eight cases from its docket in one fell swoop by issuing preliminary judgments dismissing Serbia’s (identical) lawsuits against nine NATO countries arising out NATO’s actions in the 1999 Kosovo war. It issued one other preliminary judgment in a dispute between Lichtenstein and Germany dismissing that case from its jurisdiction. It should be noted that the court took five years to remove the Serbia cases and four years to remove the Lichtenstein case, both without reaching the merits of the cases.

In other words, the full ICJ (not counting special chambers) has issued zero final judgments in the past year and essentially two preliminary judgments. It has also held two public hearings.

Obviously, the ICJ President has a duty to present the Court’s work in the best light, especially because his main purpose is to request appropriations from the General Assembly. The ICJ’s budget, in absolute terms, is quite small (about $30 million per biennium). And the ICJ only employs about 98 staff members. So at least the ICJ doesn’t appear to be a bloated wasteful international organization.

On the other hand, it is hard to see exactly why the court needs even this small amount of money and staff to issue three judgments a year (roughly $5 million per judgment). Or why a cash-strapped U.N. should give them any additional funds.

Albany Law Review sponsored a symposium today on the topic of “Outsourcing Authority: Citation to Foreign Court Precedent in Domestic Jurisprudence.” It included a number of speakers, including Ken Kersch, Susan Karamanian, John McGinnis, John Baker, Mark Tushnet and yours truly. Wonderful debate about Roper v. Simmons, Lawrence v. Texas, Charming Betsy and the general trend toward citation of foreign and international authority.

The most revealing comment came from Mark Tushnet on the subject of constitutional comparativism. He said, “If contemporary U.S. liberals have gotten off the rails they should get back on the rails. So what.” When asked whether this meant we might need to revisit cases such as Mapp v. Ohio, Skokie, New York Times v. Sullivan, and Roe v. Wade in light of international norms that provide lesser protections, he unequivocally said, “Yes.”

Peter Spiro and Dan Bodansky at the University of Georgia Law School are hosting a symposium this weekend to discuss and critique Jack Goldsmith and Eric Posner’s informative and provocative book, The Limits of International Law. I discussed the book’s central thesis — that international law is merely a reflection of states acting rationally to pursue their interests in relation with other states — in an earlier post. In addition to Goldsmith and Posner, papers are being presented by Philippe Sands (London), David Golove (NYU), Kal Raustiala (UCLA), Andrew Guzman (Boalt), Ken Anderson (American) and Allen Buchanan (Duke, philosophy). Oh, and yours truly will be presenting as well. If you’re in the neighborhood of Athens (Georgia, that is) come on by. I’ll post some reflections next week.

The final Volcker Independent Inquiry Committee Report has been released (see here). News summaries have generally emphasized the final report’s conclusion that over 2000 companies participating for Oil-for-Food were involved in illegal or at least illicit kickback schemes with the Saddam Hussein Iraqi government. But the report also rightly faults the U.N. itself for failing to prevent or stop such widespread and blatant corruption.

Before Chris jumps on me again for complaining about the U.N. without acknowledging its good qualities, let me say that I think the U.N. can be effective in some cases. And I also find the reports of private companies like Daimler Chrysler or Volvo receiving kickbacks from Saddam Hussein just as damning as the reports of malfeasance at the highest levels of the U.N. Secretariat. The fact that diplomats such as France’s former U.N. Ambassador and politicians like Britain’s George Galloway also appeared to benefit from the scheme is equally troubling. Corruption appears to have been endemic in this program.

Having said that, I do think supporters of the U.N. are underestimating the seriousness of the Oil for Food scandal for the institution’s long-term survival. Petty corruption is one thing, but petty corruption that directly undermines the U.N.’s administration of sanctions against Iraq is quite another.

If the U.N. cannot effectively administer sanctions against Iraq without succumbing to rather easy and blatant corruption by an unsavory figure like Saddam Hussein, it is hard to see why the “international community” should “trust” the U.N. to deal effectively with other serious threats to international peace and security. It is also hard to see why, for instance, the U.N.’s claims that it could effectively monitor Iraq’s weapons program should be taken seriously.

The U.S. government has made many mistakes of its own, and it perhaps deserves to have its good intentions questioned around the world. But the Oil-for-Food scandal reminds us that the U.N. has its own serious problems and that its claims of high-minded disinterested protection of world peace deserves just as much skepticism.

According to TopTenSources, “law news feeds abound … [but] these 10 are the best”:

Legal Theory Blog
Opinio Juris
Jurist
PrawfsBlawg
The Volokh Conspiracy
The Becker-Posner Blog
Law.com
How Appealing
Legal Underground
Overlawyered

Not bad company!

A copy of her withdrawal letter is available here.

U.S. Secretary of State Rice is visiting Canada this week in a likely futile attempt to defuse a worsening U.S.-Canada trade dispute over softwood lumber. As I’ve blogged in the past (here and here), U.S. relations with Canada have been steadily worsening over the past few years over a variety of issues. But the refusal of the U.S. to comply with a final NAFTA tribunal judgment is now a trade “casus belli” in Canada and the top item on the agenda for Secretary Rice’s visit.

I think as a policy matter, the U.S. position on softwood lumber and other trade issues is hard to defend (although it is worth remembering that Canada is hardly free from blame for this ongoing dispute). But, as I’ve argued rather incessantly in the past, compliance with international tribuanal judgments, even trade tribunals like NAFTA and the WTO, remains a policy decision for the U.S. Congress and President. It is not something that would be appropriately delegated to the federal courts, as many international lawyers often suggest. If trade disputes are a diplomatic bargaining process, the U.S. shouldn’t be burdened with a system of automatic compliance since this would undercut its bargaining power.

Compliance here will occur if and when the President and Congress decide to do so. Which is why the Canadians are going to have to bargain, rather than simply whine about U.S. non-compliance. The U.S, for instance, is already moving to comply with a separate WTO case involving Canada. Compliance can happen, but it is a long, slow, and political process. Which is as it should be.

It is difficult to imagine a situation when Julian may ever be satisfied with what the UN has done. Here the UN actually accuses high-level Syrian and Lebanese officials of taking part in a murder and he thinks this is another example of the UN being inconsequential. There’s just no pleasing some people.

Julian mentions “allegations” of possible “high level” interference by UN officials, causing the report to be redacted, specifically removing the names of Assad’s brother and members of his inner circle. Before we get all wound up in some conspiracy theory, one should note that Detlev Mehlis, the author of the report, said he himself made the changes without the urging of any other UN official once he learned that the report would be made public and would not be confidential. This is a perfectly reasonable explanation but, even if you don’t accept it, one should still see the report for what it is: a political disaster for the Syrian regime.

Let’s set aside the rhetoric and actually look at the effects of the report so far. Julian implies that, like reports of other international organizations, this report ends up with “muddy, often useless conclusions in an attempt to avoid rocking the boat.” Well, I guess someone better tell all those demonstrators in Damascus to calm down. That is not the result of a document that avoids rocking the boat.

What is even more interesting are the comments of some of the Syrians in the street when asked about the report. Comments were along the lines of, “well, if these allegations turn out to be true then whoever supported the assassination are traitors,” and “if anyone in Syria was responsible, they must be brought to justice.” Probably not the sound bites that Assad and his cohorts were hoping for when they planned this “spontaneous” demonstration.

No one seems to find that this is a report that was muddy or useless. Look at the news cycles, the report was portrayed not as milquetoast but a bombshell. Even Al Jazeera read the whole report on air. Keep in mind, even without the name of Assad’s brother, the upper echelons of the Syrian and Lebanese security agencies were implicated after an investigation. Maybe this is just like going after Scooter Libby instead of Dick Cheney.

Anyway, what unremitting detractors of the UN miss is when it actually does some good. They don’t realize, perhaps, that in many parts of the world the UN’s voice is believed to be more legitimate than that of the United States, or at least that of the current Administration. Especially after the intelligence fiasco leading up to the Iraq War, the U.S. is not perceived as being especially credible when it starts pointing the finger in the Middle East. But the UN, for all its flaws, is. This is one of the particular strengths of a global organization and one of the things that those who would wish that the UN would just collapse should realize: legitimacy matters. And, even if some in the U.S. see the UN as illegitimate, their view does not map to the rest of the globe. When thinking about foreign policy, we need to remember how others perceive situations as opposed to simply our own ideological views. In this case the UN is the enemy of our enemy. Any realist knows what that means.

Yale has an endowment of $12.7 billion. Through its investment team it earned about 17 percent per year, or one billion dollars every few months. Stein notes that with such staggering profits, those gains dwarf whatever pitiful little gifts that he might offer. By comparison his donations of several thousand dollars to other organizations that promote animal rights or assist widows of deceased American vets does far more good. “There are only a few tens of thousands of us alums, so what we give has to be totally insignificant… Why give them money, then?” Donating thousands of dollars is “virtually meaningless to Yale, so why bother giving to it?” Indeed. (Full disclosure: I am not a Yalie, but am married to one).

If we care deeply about human rights or similar public concerns, Stein raises the serious question of why we should divert funds to fantastically rich organizations like Yale Law School instead of human rights organizations that can directly and materially benefit from every single dollar we donate. Yale University earns from its endowment about 6 million dollars a day, or about $4,000 per minute. Rather than give to Yale, why shouldn’t Yale alums give to an organization like International Justice Mission? When I was in India this summer working with IJM, it was clear that a few thousand dollars would pay the annual salary of an Indian human rights lawyer working daily to free those in bonded labor or child prostitution. So with $4,000, an alum could give one minute to Yale, or one year to IJM? Why give money to the anointed “little princes or princesses” at Yale Law School (Stein’s term) instead of the true nobility of our profession who desperately need our support?

Now I do not mean to paint with a broad brush and suggest that all gifts to all law schools are similarly suspect. Certainly gifts to many law schools can make a dramatic difference in the life of that school. For example, Yale’s endowment earns in a few months the total endowment of my current employer. If one of our alums makes a gift to help fund our newly established human rights initiative that is fighting religious discrimination in remote parts of the world, it will materially and dramatically improve the experiences of our most inspired students and their clients. I would suspect most schools are in a similar situation. (The average university endowment is $361 million, and the median is $72 million).

Rather than make a donation to the fat and happy Yale Bulldogs, why shouldn’t Yale Law alums donate a real live bull to the desperate and starving through Heifer International? Better yet, why not have the Yale Law School Dean (whom I greatly respect) spend countless hours campaigning for their alums to make donations to human rights organizations in the school’s name out of a deep sense of institutional gratitude and an abiding commitment to human rights? The capital campaign could announce that Yale would donate one dollar of every two dollars raised from alums to a truly needy non-profit organization of their choice. That may be the best way for Yale to continue to win Ben Stein’s money.

Related links:
For Loyalty, For Irrationality, and For Yale

Before we get too excited (see Chris’ post here) about the U.N.’s wonderful effectiveness in the investigation of Harari’s death, it is worth pointing out that allegations of high level U.N. interference have been circulating almost from the moment the report was released. In particular, the electronic version of the U.N. Harari report contained embedded text of last-minute changes. According to the Times of London, these changes removed”[t]he names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle . . .” and instead pointed to “unnamed Syrian officials.” Obviously, the U.N. may have good reasons for redacting the report, but its intervention here to protect the current Syrian president also points to one of the problems with investigations run by international organizations - they tend to try to avoid pointing fingers and end up with muddy, often useless conclusions in an attempt to avoid rocking the boat.

Suzanne Nossel at Democracy Arsenal has a good post on the UN report implicating the Syrian government in the Hariri killing.

She explains succinctly how and why the UN can play an important role in investigating such crimes, especially in situations where we, the U.S., cannot. Nor could anyone else (such as the E.U. or the ICC) have done the job.

This is another example of the value of a global organization such as the UN, despite its flaws.

There has been much speculation in various academic circles as to why Senator Dianne Feinstein–a liberal Democrat representing a state that has been at the vanguard in applying Alien Tort Statute–would propose amendments to the law. Here is her own statement as to why she perceives a change to be necessary:

“Many recent legal cases have demonstrated the need for clarification of the meaning and scope of lawsuits filed in our federal courts by foreigners for alleged violations occurring outside the United States… Judges have grappled in interpreting and applying the relevant law for years with no consensus. The lawsuits should be able to go forward, but judges need better legal tools to understand the cases that come before them….Right now, courts are essentially adrift in terms of being able to pinpoint the underlying meaning, scope and intent of the Alien Tort Statute. I hope this legislation will settle the questions that surround this 200-year-old law by providing a reasonable legal means that both plaintiffs and defendants can rely on to litigate their differences. It is time for Congress to bring clarity to the law and I believe this legislation does so.”

According to her press release, her proposed amendment would:

• Specify a legal standard convicting defendants of wrongdoing if they directly participate with specific intent to commit the alleged tort;
• Codify international claims under the Alien Tort law to include genocide, torture, slavery and slave trade, extrajudicial killing, and piracy;
• Expand on existing statutory law, the Torture Victim Protection Act;
• State that federal courts shouldn’t proceed with tort claims when the President adequately certifies that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the U.S.;
• Maintain that every effort should be made to try these cases in the country of origin before granting jurisdiction in U.S. courts;
• Invoke a 10-year statute of limitations on Alien Tort Statute charges filed against defendants; and
• Disallow contingency fee arrangements for legal representatives of plaintiffs or defendants.

Senator Dianne Feinstein, a Democrat from California, has introduced a potentially revolutionary amendment to every international lawyer’s favorite statute, the Alien Tort Statute. While Sen. Feinstein calls her amendment a “clarification,” it looks to me like she is proposing a near-complete evisceration of the Alien Tort Statute as we (international lawyers) know it. And such an evisceration is almost certainly a good thing.

Since 1980, when it was first invoked to allow aliens to bring suits alleging violations of international human rights law, the Alien Tort Statute has become a vehicle for advocates of international law within the U.S. International lawyers loved the statute because it opened the door to federal court vindication of customary international law, a type of law rarely recognized by courts in other contexts. In recent years, advocates have used the ATS to sue large corporations and, more recently, the U.S. government for alleged abuses arising out of the war on terrorism.

If enacted, the Feinstein amendment would continue to permit lawsuits for genocide, torture, slavery and slave trade, extrajudicial killing, and piracy. But, unlike the current open-ended ATS, those are the only claims you can bring under the statute (creative claims for violations of, say, international environmental rights, would not be permitted). Most importantly, the definition of these claims would be statutory as opposed to based on international custom, which is notoriously fuzzy and evolving.

The amendment has some other salutary provisions. It would give the President the power to terminate an lawsuit if he certifies in writing that the suit would have a “negative impact” on U.S. foreign policy. It also appears to shield corporations from theories of “aiding and abetting” liability by limiting damages to defendants who are “direct participants acting with specific intent to commit ” one of the specified torts.”

In sum, Sen. Feinstein is proposing that Congress “de-internationalize” the Alien Tort Statute. Instead of looking to foreign courts or international tribunals (or to international law professor articles), courts considering a claim under the ATS would look to the text of the statute and the legislative history. Victims of serious human rights abuses would still be able to bring their lawsuits, but they would have to meet U.S. statutory standards, and not fuzzy international ones.

I have no idea whether this bill has a good chance of passing, although I think its sponsorship by a moderate Democrat is very promising.

* Here are some key excerpts from the bill

‘‘§ 1350. Alien’s action for tort
‘‘(a) JURISDICTION OF DISTRICT COURTS.—The district courts shall have original and exclusive jurisdiction of any civil action brought by an alien asserting a claim of torture, extrajudicial killing, genocide, piracy, slavery, or slave trading if a defendant is a direct participant acting with specific intent to commit the alleged tort. The district courts shall not have jurisdiction over such civil suits brought by an alien if a foreign state is responsible for committing the tort in question within its sovereign territory.

‘‘(e) FOREIGN POLICY INTERESTS OF THE UNITED STATES.—No court in the United States shall proceed in considering the merits of a claim under subsection (a) if the President, or a designee of the President, adequately certifies to the court in writing that such exercise of jurisdiction will have a negative impact on the foreign policy interests of the United States.

From this Thursday through Saturday, the American Branch of the International Law Association (and co-sponsors including the NY City Bar and the American Society of International Law) will hold International Law Weekend 2005 at the House of the Association of the Bar of the City of New York, 42 West 44th Street, NY, NY. Links to the program and registration materials are available here.

Registration is free for students and members of one of the co-sponsoring organizations. Otherwise, registration is $50.

If you are attending, please swing by to say hello to Roger or me as we will both be there. Roger will moderate a panel entitled “The Charming Betsy and the Role of Presumptions in International Law” (4:00 pm to 5:30 pm on Friday, October 21st ) and I will moderate a panel on UN Reform and the ICJ (2:15 pm to 3:45 pm on Friday, October 21st).

We hope to see you there.

Michael Scharf at Case Western Law School, together with a group of other law professors and professionals with deep knowledge about international war crimes tribunals, has put together a very useful website and blog on the Saddam Hussein trial, aptly named Grotian Moment. It is well worth a visit.

Update: Of course, Julian posted this blog endorsement a couple of weeks ago. Two endorsement are better than one, no? We’ll add Grotian Moment to the blogroll for easy access.

The U.S. entered into a new round of negotiations this week with the E.U. for “open skies” air transport agreements. These agreements govern the terms of air traffic rights between U.S.-based and E.U. based-carriers, and the intention is to liberalize these rules so that air carriers can fly to directly to more cities on each side. In other words, more direct flights to more places. This could only be a good thing. Maybe one day, I’ll be able to take Lufthansa from NY to San Francisco.

Air transport seems to be an area that could use more, rather than less, international coordination. Even the WSJ($) editorial page seems to think so. There is the 1944 Convention on International Civil Aviation (the Chicago Convention) but the important agreements appear to be bilateral, such as this recent agreement between the U.S. and Mali. On the other hand, since the majority of the world’s air traffic flows between the U.S. and Europe, perhaps no worldwide negotiations are needed.

Moreover, none of these current agreements appear to require U.S. Senate confirmation or any congressional confirmation. Talk about unchecked executive power! But Congress’ non-involvement may also explain why there are so many (72 and counting) and why they are so uncontroversial.

Sometimes, countries really act in ways that don’t appear motivated by narrow material self-interest. Australia’s recent campaign to win a Security Council referral against Zimbabwe President Robert Mugabe is a good example of this type of moralist foreign policy. Australia has no obvious national interests at stake in Southern Africa. It stands pretty much alone in its level of outrage. But it is outraged nonetheless and it is taking action.

“Ultimately it is Ugandans who have to decide what is best for them. Whatever they choose, it should not hinder reconciliation and healing and yet it should not encourage impunity and hurt the victims yet again,” said Archbishop Desmond Tutu. It appears Ugandans may not know which path is best for them, leaving successful prosecution before the ICC in a state of uncertainty.

Related links
ICC Watch: Uganda Arrest Warrants Unsealed
Peaceful Settlements in Uganda Jeopardized by ICC Arrest Warrants

Meanwhile, Jon Holdaway, a former JAG officer over at Intel-Dump, objects to the McCain Amendment for a completely different reason:

Both Lederman and Holdaway think the McCain Amendment that may eventually become law is a step backwards, but for very different reasons.

What is fascinating in this debate over detainee interrogation is the larger debate over the role of Congress and the Executive branch on what is essentially an administrative law question: whether Congress shall impose strict rules or general guidance on how an agency of the Executive branch conducts its affairs. The general approach of our administrative state is one of broad grant of authority from the legislative branch and trust in agency expertise to carry out the congressional mandate. The McCain Amendment appears to be one of those instances in which the legislative branch is stepping in because it now lacks confidence in the agency to exercise its expertise.

But of course, as anyone who has studied the Eighth Amendment or the Torture Convention in any detail well knows, precisely what terms like “cruel or unusual punishment,” or “cruel, inhuman, or degrading” treatment is an exceedingly difficult question. If we apply an administrative law gloss to the McCain Amendment, what are we to do if executive agencies interpret those words broadly or narrowly? Courts likely will defer to agency interpretations of what is “cruel, inhuman, or degrading” treatment. Hence the McCain Amendment may not have particularly cabined executive authority in any significant way. Administrative law principles will blunt any major impact it might otherwise have.

I am curious if others have thoughts on whether this administrative law gloss on the McCain Amendment is correct.

Related links:
What Congress Has Done and Not Done to Limit Inhumane Treatment
Congress Speaks–Defining Detainee Interrogation Policies

Sometimes being virtuous pays off. The Thomas J. Dodd Prize in International Justice and Human Rights has been awarded jointly to Justice Richard Goldstone and U.N. High Commissioner for Human Rights Louise Arbour. The two well-known figures from the human rights community will share the prize of $75,000. Thomas Dodd, the father of current U.S. Senator from Connecticut Chris Dodd, served as an executive trial counsel at Nuremberg.

The prize has only been awarded twice, so it doesn’t quite have the pedigree of the Nobel Prize. Still, if the trend continues, it could be a nice bonus for those folks who make a living promoting or advocating for international human rights. Perhaps like the Nobel Peace Prize, politics is unavoidable. This year’s prize winners are openly critical of the U.S. policies toward the war on terrorism, and I am somehow guessing that taking this line against the U.S. is going to be de rigeur for future winners. Which means, I suppose, I’m never going to win this prize. Not that anyone was planning on nominating me, but it would be nice to have a little extra cash.

The ICC Prosecutor has unsealed the arrest warrants issued in July 2005 against five leaders of the Lord’s Resistance Army (LRA). The warrants can be found here. Not surprisingly, these warrants allege pretty grisly crimes including:

murder, abduction, sexual enslavement, mutilation, as well as mass burnings of houses and looting of camp settlements … abducted civilians, including children, …to have been forcibly recruited as fighters, porters and sex slaves and to take part in attacks against the Ugandan army (UPDF) and civilian communities.

I am generally sympathetic to Roger and Peggy’s criticism of the effect an ICC intervention into a delicate peace negotiation, although I do think it is worth noting that the ICC does have some moral (and maybe) legal obligation to act. As one of its arrest warrants has pointed out, “LRA commanders are allegedly inclined to launch retaliatory strikes, thus creating a risk for victims and witnesses who have spoken with or provided evidence to the Office of the Prosecutor.”

But the jury is still out on whether this intervention will result in more or less violence and suffering for the people of Uganda.

Speaking of Grotius, a Dutch court ruled this week that it would not extradite an alleged Al Qaeda suspect to the U.S. because his fundamental legal rights could not be guaranteed. The Court held, according to AP: “[t]he risk that the [individual] will be confronted with suspicions of involvement in the al Qaeda network is certainly not imaginary. … This gives sufficient reason to believe that with regard to him, fundamental legal guarantees—such as direct, unlimited and undisturbed contact with a lawyer and timely access to a judge—could be threatened.”

I’m not sure, but I think the Dutch court is concerned that the U.S. might deem the suspect an enemy combatant and try him before military commissions. This seems a bit far-fetched, but I suppose it is within the realm of possibility. But that shouldn’t matter, at least not under my reading of the U.S.-Netherlands extradition treaty. None of the provisions permitting a refusal of a request for extradition, e.g. for political or military offenses seems applicable.

Moreover, the problem with the Court’s analysis is that it would prevent the Netherlands, or any other country with a similar extradition treaty with the U.S., from ever extraditing someone connected to Al-Qaeda. But maybe I’m misreading something. International Extradition Blog has more analysis here.

In another sign of China’s arrival as major world power, China’s space program successfully put two Chinese “taikonauts” into orbit Wednesday using their Shenzhou VI rockets. The state-run People’s Daily newspaper has set up a website for tracking the progress of the taikonauts here. This is yet another boost to China’s self-confidence (the 2008 Olympics in Beijing is another) and another way for the Chinese government to demonstrate the success of its policies and rally nationalist sentiments.

Ironically, the launch took place the same day that the U.S. Congressional-Executive Commission on China has released its (somewhat critical) annual report on human rights in China. I have to admit I had no idea that this commission existed. Apparently, it was created as part of the deal to get congressional support for admitting China to the World Trade Organization back in 2000. This is an odd creation: a free-standing commission existing solely to issue negative and critical reports about China. Even though China certainly deserves criticism, it is odd that the U.S. needs a full congressional-executive commission to complain ineffectually about China’s human rights practices. Isn’t that what the State Department is for?

In any case, no doubt most Chinese remain unaware of this and other reports detailing various human rights abuses in their homeland. A few might wonder why a country that has a per capita income of $950 is spending billions on a space program. But those are mere quibbles for most Chinese, who are probably breathlessly awaiting the return of their newest national heroes. Nationalism always trumps liberalism, at least in China today.

Percy Bysshe Shelly said that poets are the unacknowledged legislators of the world. If that’s true (and even if it’s not), then we need to consider why Harold Pinter has won the Nobel Prize for Literature. Think of this as being another way to assess the mood of our European allies and perhaps world opinion more generally.

As Peggy and Roger have pointed out, the Peace Prize is often used to send a signal. This year’s choice of Mohammed El Baradei and the IAEA can be viewed as sending two signals (a) it is part of the periodic reminders at Hiroshima/Nagasaki decennials of the importance of decreasing the threat of nuclear war and (b) it may be viewed as a rebuff to the current U.S. administration.

But what about the Prize for Literature? The interesting thing is that, according to the BBC World Service, Pinter was not a favorite to win. While one of the living greats, no one was focusing on him this year. A lot of the buzz was about Orhan Pamuk, a Turkish writer whose novels explore Turkey’s history and culture in a manner that some have found reminiscent of James Joyce’s novels about Dublin, or Gabrial Garcia-Marquez’s about Colombia (and Latin America), or Jorge-Luis Borges’ stories, more generally.

So why Pinter? Some argue that he won—and Pamuk did not—because of politics. Pamuk has had a political firestorm around him for his calling on his government and his country to take responsibility for the 1916 massacres (dare I say genocide?) in Armenia.

Pamuk’s public indictment of Turkey’s past actions is uncomfortable for Turkey and the EU as Turkey enters into accession talks; particularly because such human rights abuses are one of the issues that have derailed earlier attempts at Turkey’s EU accession. Pinter has been outspoken politically and, as of late, his main point has been critiques of U.S. policy which some have considered going beyond mere policy disagreements and into the realm of full-scale anti-Americanism. (See here, for example.) This is not to say that Pamuk is a big fan of U.S. policy. But I would note that his criticisms have been more balanced and morally nuanced. (See, for example, his essay from the New York Review of Books.)

By almost all accounts, Pinter deserves a Nobel for his body of work. This isn’t like when Jethro Tull won the Best Metal Album Grammy over Metallica. But what I am interested in is why Pinter got it now, when commentators thought it was Pamuk’s year, based on Pamuk’s recent work. If the answer is indeed politics, then this is an example as to how deep the Atlantic rift may be.

And now for my obligatory moment of dewy-eyed idealism. Literature, at its best, bridges gaps of experience and culture. It helps you stand in another’s shoes. If one of the things we, as international lawyers, care about is a just world then fostering an understanding of each other’s views is an important step in that direction, regardless as to whether we actually agree with those views. You cannot let rhetoric bury nuance, anger bury analysis. Anger can spur great literature and righteous anger can be the seed of political reform, but great literature and just policies are more than angry reactions. Writers (and international lawyers) are fortunately not the world’s legislators. But both can have a profound influence in how we understand and shape our world. And, based on this year’s Nobel (and other current events), I think some of us need to start doing our jobs a bit better.

UPDATE

For an interesting take on the politics of awarding this year’s Literature Prize, see this article.

The story coming out of Uganda bears emphasis for its impact on the ICC doctrine of complementarity. Under Article 17 of the Rome Statute, “the Court shall determine that a case is inadmissible where … [t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” The ICC website indicates that “the International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute. A country may be determined to be “unwilling” if it is clearly shielding someone from responsibility for ICC crimes.”

So what happens when a country considers the option of granting amnesty as part of a peaceful settlement of a civil war? Is an approach of amnesty – together with a Truth and Reconciliation Commission – one viable approach to resolving such conflicts? Should that qualify as an “investigation” within the meaning of the “complementarity” doctrine? One would hope.

Which makes the news coming out of Uganda all the more alarming. The lead mediator, Betty Bigombe, is according to the Washington Post, “a dynamic Ugandan woman who is shunning her comfortable office at the World Bank headquarters and risking her life to bring peace to the long-suffering people of northern Uganda.” So when Bigombe (pictured above with rebel negotiators) this week expressed concern about the ICC arrest warrants, this should merit world attention. According to reports,

One does have the impression that the ICC prosecutor has not shown the better part of caution in issuing these arrest warrants at this time. How can you apply the Article 17 mandate of deference to national court proceedings when the government is in the process of brokering peace and deciding how to respond to the rebel forces by, among other options, considering a grant of amnesty?

The good news is that such arrest warrants may indeed provide a chilling effect for those contemplating the further commission of war crimes. That cannot be underestimated. But neither can one ignore the chilling effect that such arrest warrants may have on attempts to broker peace. War crimes may cease, but war will continue.

For better or for worse, the Arctic ice caps may be melting, opening up lots of virgin territory for economic development, the NYT reports. It may also raise the stakes over U.S. non-ratification of the U.N. Convention on the Law of the Sea (UNCLOS).

There appears to be lots of money to be made from melting ice caps. A Denver entrepreneur, for instance, bought a port from Canada that might turn into a $100 million port facility for a mere $7. Maybe as much as “one quarter of the world’s undiscovered oil and gas resources lies in the Arctic, according to the United States Geological Survey.”

The NYT suggests that the prospect of an Arctic gold rush may finally spur the U.S. Senate to move on the UNCLOS, which gives countries the right to claim the continental shelf extending from their territory under the sea. Russia has already invoked this treaty to claim the shelf under about half of the Arctic. The U.S., currently a signatory but not a party to the treaty, cannot directly invoke UNCLOS procedures and rules to challenge Russia (although we can be sure Canada will).

On the other hand, the U.S. already recognizes the relevant provisions of UNCLOS related to the continental shelf as customary international law. So the U.S. would follow the same rules. All it would miss out on is the UNCLOS dispute resolution procedures. But that may actually work to the U.S.’s long term benefit, forcing other states to bargain with the U.S. rather than litigate.

Well ok, not exactly. But that is how an American television drama would portray an American version of what has happened today in Germany. Coalition governments are nothing new in Europe, but to an American ear the idea that major opposition parties will have a coalition with Merkel’s CDU cabinet filled with key members of Schröder’s team is, well, a recipe for disaster. As the London Times reports, “She has won the chancellorship at last, but it’s a poisoned chalice. Far from being Germany’s equivalent to Margaret Thatcher many people believe she is going to be a short-term leader.” Her power is severely limited. Social Democrats have taken eight of the 16 ministries (including foreign affairs, reform, employment, health, transport and finance). Merkel’s Christian Democrats will have eight ministries (including interior, economy, defense, agriculture, family and education), but she must give “two or three away to the Christian Social Union, her sister party in Bavaria. This leaves her only five or six posts.”

They are calling it a Grand Coalition, although it sounds more like a Grand Collision.

Lest it seems like the U.S. Senate is the graveyard of all treaties, it is worth noting that the U.S. Senate has recently ratified two conventions: the United Nations Convention Against Transnational Organized Crime and the Inter-American Convention Against Terrorism as well as a Protocol of Amendment to the International Convention on the Simplification and Harmonization of Customs Procedures. The two conventions passed by division vote and the protocol won an 87 votes in support and none against.

None of these treaties are particularly controversial and none may be all that important, given that no newspaper has or will cover their ratification. Indeed, it is unclear what obligations these treaties impose that the U.S. does not already impose on itself. For instance, the U.S. has tacked on an “understanding” to the Transnational Organized Crime Convention that essentially limits the treaty’s obligations to whatever is required under existing federal and state law. Here is the partial text of the reservation shielding state laws from any obligations under the treaty:

(1) The United States of America reserves the right to assume obligations under the Convention in a manner consistent with its fundamental principles of federalism, pursuant to which both federal and state criminal laws must be considered in relation to the conduct addressed in the Convention. U.S. federal criminal law, which regulates conduct based on its effect on interstate or foreign commerce, or another federal interest, serves as the principal legal regime within the United States for combating organized crime, and is broadly effective for this purpose. Federal criminal law does not apply in the rare case where such criminal conduct does not so involve interstate or foreign commerce, or another federal interest. There are a small number of conceivable situations involving such rare offenses of a purely local character where U.S. federal and state criminal law may not be entirely adequate to satisfy an obligation under the Convention. The United States of America therefore reserves to the obligations set forth in the Convention to the extent they address conduct which would fall within this narrow category of highly localized activity. This reservation does not affect in any respect the ability of the United States to provide international cooperation to other Parties as contemplated in the Convention.

Further, the Senate added that:

The United States of America declares that, in view of its federalism reservation, current United States law, including the laws of the States of the United States, fulfills the obligations of the Convention for the United States. Accordingly, the United States of America does not intend to enact new legislation to fulfill its obligations under the Convention.

So the signing and ratifying the treaty will not require the U.S. to in anyway alter its domestic laws. I don’t have a problem with this, although it does make me wonder why it took four years from the treaty being signed to the time of its ratification…

Interesting column by David Brooks in the New York Times on Sunday. Money quote:

I believe that social mobility is the core of the American experience. I believe that society should be structured so that as many boys and girls as possible can work, and rise the way young Hamilton and Lincoln did.

If something is going to make American society more fluid and dynamic, then I am for that thing. That’s why I love globalization, even while I am aware of its costs. I love the fact that American businesses are going to be improved via competition with Chinese and Indian rivals. I love the fact that to compete we are going to have to reform our lobbyist-written tax code into something flatter and fairer. I love the fact we’ll have to make health insurance competitive and portable, so workers can move and companies can thrive.

I can’t believe people want to shield America behind the walls of “fair trade agreements.” I can’t believe some people think we’re going to be overrun by those hustling Asians. Americans are the hardest-working people on earth and the most mobile….

When I cut myself loose from the push and shove of today’s weary political titans, and go back to basics, I find myself strangely invigorated.

It was announced today that the International Atomic Energy Agency and its director, Mohammed ElBaradei, were awarded the Nobel Peace Prize for 2005. The Committee cited Baredei and IAEA “for their efforts to prevent nuclear energy from being used for military purposes and to ensure that nuclear energy for peaceful purposes is used in the safest possible way.” They join these past winners.

If you, like me, wonder who else was nominated, you won’t have the satisfaction of finding out. The Nobel Committee, unlike the Academy of Motion Pictures, does not release the list of those nominated in a given year. There is no short list of nominees announced in advance, no red carpet, no deconstructing of the nominees fashion choices. Only the nominators and, if they tell the nominee, the nominees themselves know about the nomination, though they often issue press releases to let the world in on it. But, similar to the Academy Awards, not just anyone can make a nomination. Nominators are restricted to a group that reflects the “principle of competence and universality” which under the Nobel Statute means:

1. Members of national assemblies and governments of states;
2. Members of international courts;
3. University rectors; professors of social sciences, history, philosophy, law and theology; directors of peace research institutes and foreign policy institutes;
4. Persons who have been awarded the Nobel Peace Prize;
5. Board members of organizations who have been awarded the Nobel Peace Prize;
6. Active and former members of the Norwegian Nobel Committee; (proposals by members of the Committee to be submitted no later than at the first meeting of the Committee after February 1) and
7. Former advisers appointed by the Norwegian Nobel Institute.

Yes, that’s right: law professors! Who knew we had so much power?

I have been travelling today, so I don’t have much more energy left to respond to Peggy’s post, most of which I agree with anyway. Let me just say that I think the somewhat sketchy news reports on the actual substance of the legislation passed by the Senate may have misled Peggy on the scope of the Senate’s amendments. As I understand it, the legislation has two components: (1) It would require the military to adhere to the Army Field Manual; (2) It would require all U.S. personnel, including non-military personnel such as those in the intelligence agencies, to avoid “cruel, inhuman, and degrading” treatment of detainees held in U.S. custody overseas. Importantly, the “cruel, inhuman, degrading” language has been understood by the U.S. to coincide with the Eighth Amendment’s ban on cruel and unusual punishment. But it is possible that the legislation might be interpreted to incorporate international standards of “cruel, inhuman, and degrading” which go beyond what the Eighth Amendment requires. So the legislation may sweep quite broadly.

There is obviously lots more to say about this topic, which is why I am currently in Cleveland at Case Western Reserve School of Law’s symposium on “Torture and the War on Terror.” (a webcast can be found here). Our topic, not surprisingly, is treatment of detainees held by the U.S. in the war on terrorism. Lots of interesting scholars, advocates, and practitioners will be speaking (including myself, for what it’s worth).

The International Criminal Court has issued indictments for the five leaders of the Lord’s Resistance Army (LRA) in Uganda. These are the first warrants the ICC has ever issued, although the ICC website has no official info on these warrants.

According to a U.N. official, the notifications went out last week to the governments of Uganda, Sudan and the Democratic Republic of the Congo, where a remnant of the LRA has taken refuge. It will be interesting to see the reaction of these governments.

It will also be interesting to see whether these arrest warrants will interfere with the ongoing peace negotiations in Uganda. The ICC Prosecutor has made great efforts to show its political sensibility, but, as I noted here and here, it is entering dangerous ground.

Julian’s post below on the bill passed by the Senate today misses a few key points. First, the standards set out in the bill will not apply to all detainees being held by the US, but only to those held by military personnel. This leaves the still troubling question of what the administration’s current policy is toward non-military interrogations. (But it does get address the enormous public diplomacy problem presented by Abu Ghraib.) Second, the standard barring “cruel, inhuman or degrading treatment” (language that is replicated in the Torture Convention) was already contained in the obligations under the Geneva Conventions. Setting aside the technical legal argument, as a matter of policy, it wasn’t until this administration that the US military was confronted with the notion that it might not be held to the GC standard. Indeed, it was the military that begged the Senate for additional guidance, even though its own internal standards (the Army Field Manual, for example) long required the higher standard of treatment.

Finally, by stating that “there is no serious legal objection to Congress getting involved in this process,” seems to imply that there are non-legal objections to Congress getting involved. What are those? Perhaps pesky checks on unbridled executive power raise the “inconvenience” objection? Or is it that there is a defense for allowing military personnel to treat detainees and POWs in a manner that is not only contrary to our obligations under international law, but also offends more deeply held beliefs that we are better than that? Harold Koh might call our nation’s insistence that we are better than that “good American exceptionalism.” Senator John McCain might just call it morality. But it is inextricably linked with our strong tradition of the rule of law. Senator McCain’s full statement today:

Mr. President, war is an awful business. I know that. I don’t think I’m naive about how severe are the wages of war, and how terrible are the things that must be done to wage it successfully. It is a grim, dark business, and no matter how noble the cause for which it is fought, no matter how valiant the service, many veterans spend much of their subsequent lives trying to forget not only what was done to them and their comrades, but some of what had to be done by their hand to prevail. I don’t mourn the loss of any terrorist’s life nor do I care if in the course of serving their ignoble cause they suffer great harm. They have pledged their lives to the intentional destruction of innocent lives, and they have earned their terrible punishment in this life and the next.

What I do regret, what I do mourn, and what I do care very much about is what we lose, what we — the American serviceman and woman and the great nation they defend at the risk of their lives — what we lose when by official policy or by official negligence — we allow, confuse or encourage our soldiers to forget that best sense of ourselves, our greatest strength: that we are different and better than our enemies; that we fight for an idea — not a tribe, not a land, not a king, not a twisted interpretation of an ancient religion — but for an idea that all men are created equal and endowed by their Creator with inalienable rights.

I have been asked before where did the brave men I was privileged to serve with in Vietnam draw the strength to resist to the best of their ability the cruelties inflicted on them by our enemies. Well, we drew strength from our faith in each other, from our faith in God, and from our faith in our country. Our enemies didn’t adhere to the Geneva Convention. Many of my comrades were subjected to very cruel, very inhumane and degrading treatment, a few of them even unto death. But everyone of us knew, every single one of us knew and took great strength from the belief that we were different from our enemies, that we were better than them, that we, if the roles were reversed, would not disgrace ourselves by committing or countenancing such mistreatment of them. That faith was indispensable not only to our survival, but to our attempts to return home with honor. Many of the men I served with would have preferred death to such dishonor.

The enemies we fight today hold such liberal notions in contempt, as they hold the international conventions that enshrine them such as the Geneva Conventions and the treaty on torture in contempt. I know that. But we’re better than them, and we are the stronger for our faith. And we will prevail. I submit to my colleagues that it is indispensable to our success in this war that our servicemen and women know that in the discharge of their dangerous responsibilities to their country they are never expected to forget that they are Americans, the valiant defenders of a sacred idea of how nations should govern their own affairs and their relations with others — even our enemies.

Those who return to us and those who give their lives for us are entitled to that honor. And those of us who have given them this onerous duty are obliged by our history, and by the sacrifice — the many terrible sacrifices — that have been made in our defense, we are obliged to make clear to them that they need not risk their or their country’s honor to prevail; that they are always, always — through the violence, chaos and heartache of war, through deprivation and cruelty and loss — they are always, always Americans, and different, better, and stronger than those who would destroy us. God bless them as he has blessed us with their service.

Update 10/7/05:
Julian rightly corrects me on the point about intelligence agencies. The amendment (full text here via Jurist) includes in Section 2(a) language that refers to any individuals in “custody of under the physical control of the United States Government.” This would not, of course, prevent rendition practices, although could plausibly include contractors acting on behalf of the USG (regardless of the nationality of the contractor).

The U.S. Senate has voted, by a 90-9 veto-proof margin, to establish uniform and clear interrogation policies for the interrogation of individuals detained in the war on terror. Apparently, the amendment (which would be attached to a spending bill) would require adherence to the Army’s existing field manual for interrogation.

I am obviously no expert in the effectiveness of interrogation methods supported by this provision, or the ones defended by the administration. (For a rousing defense of Congress’ amendment, from the Weekly Standard no less, see here). But I do think that there is no serious legal objection to Congress getting involved in this process.

Congress has fairly broad authority in this area. Of course, there is a limitation on any statute created by the Commander in Chief clause of the U.S. Constitution (the existence of which I have defended here). But that limitation is itself extremely limited and could only be invoked in the rarest of circumstances. This is almost certainly not that circumstance.

On the other hand, I don’t think that Congress’s intervention here suggests that the President’s prior policy of allowing more coercive interrogation techniques was somehow illegal, as many international lawyers have contended. In my view, the President has the discretion to set policies in this area unless and until Congress decides to get involved. Congress has been silent for a long time in this area and it is almost certainly a good thing that it is finally speaking.

I wouldn’t usually take note of this commonplace account of an address to Canadian lawyers by Justice Shi Jiuyoung, the current President of ICJ, except for a couple of statements of interest.

First, Justice Shi defended the ICJ from charges that it moves way too slowly on the grounds that the procedures and various jurisdictions involved in interstate disputes. Moreover, he said that “[i]n recent years, the court has taken a full review of its operations and as a result has introduced mechanisms to enhance its internal functions.” My skepticism of these very minor changes can be found here.

More surprisingly Justice Shi commended Canada for its leadership in the development of international law, especially the International Criminal Court. This is surprising because, of course, the most important country that has refused to join the ICC (other than the United States) is, of course, China. The Canadian paper doesn’t mention this point, and I wonder if the paper would have skipped over this point if a U.S. judge had made the same laudatory comments about the ICC.

This is an interesting story. U.N Ambassador John Bolton addressed over 400 students at the Yale Political Union and was greeted with a chorus of boos and loud hisses. My favorite part is a Yale sophomore* reportedly chastising the Ambassador for being “extremely rude” to the undergraduate audience who were loudly hissing at him. But then he admits that Bolton “won the debate”!

What seems like audacious conduct on the part of nineteen-year-old undergrads is in fact custom for YPU events, with speakers routinely “pounded” with applause by compatriats and hissed down by the opposition.

A far cry from the alarming incident that occurred at NYU law school this past spring, in which law students exercised a heckler’s veto in shouting down Justice Scalia at a ceremony at the law school, resulting in a rebuke from Dean Richard Revesz and ACLU President Nadine Strossen.

* UPDATE: The name of the Yale sophomore was originally posted but has since been deleted.

In the aftermath of Hurricanes Katrina and Rita, and in anticipation of any possible catastrophic terrorist attack, there’s been a lot of talk lately about revising the Posse Comitatus Act of 1878. (See here and here.) The Act (as amended) explicitly prohibits the use of the Army or Air Force for civilian law enforcement. It reads in whole:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Although this is a criminal statute prohibiting the use of the Army or Air Force by civilian authorities for law enforcement, it has come to be viewed as a more general policy statement concerning the limits of military authority in the civilian sphere. As such, DoD regulations have directed the Navy and Marine Corps to act as if the Posse Comitatus Act applied to them as well.

Col. John Brinkerhoff, (USAF ret.) who is a former Associate Director of FEMA, has described this shifting interpretation of the Posse Comitatus Act. He argues that the Act, as written, is vague and imprecise and a more thorough modern statute is needed to properly define the military/civilian relationship in today’s terms.

While the Act may be vague, there is disagreement as to whether the proper response is a loosening to allow broader use of military personnel. Major Craig Trebilcock has written that “The erosion of the Posse Comitatus Act through Congressional legislation and executive policy has left a hollow shell in place of a law that formerly was a real limitation on the military’s role in civilian law enforcement and security issues.”

Perhaps stemming from this sense that the Posse Comitatus Act has already been gutted, there are others who argue that rather than loosening the Act, its original conception must be reaffirmed. A student note from a 1997 issue of the Washington University Law Quarterly argues why any relaxation of the Act is a bad idea. Military analyst Austin Bay is also wary of weakening the Act, arguing that while the military is very good at providing emergency communications and transportation assets, usurping the responsibilities of state and local officials is a mistake. As he explains, “Local and state authorities have both the intimate and institutional knowledge that translates into better crisis planning and better crisis improvisation.”

The arguments against a weakening of the Act generally boil down to (a) we don’t want to go down a slippery slope in allowing increased military involvement in civilian affairs and (b) local law enforcement is better at most of this stuff anyway.

This is an important issue that can set the tone for how we respond to future crises ranging from terrorist attacks to natural disasters to riots. Even complex criminal investigations. In The Shield of Achilles author Philip Bobbitt, a scholar and practitioner in national security and constitutional law, argued that the interplay of law, history, and strategy defines how states organize themselves. As military threats and strategies evolve, so do states. The possible revision of the Posse Comitatus Act is part of a larger debate as to whether we have struck the right balance in the allocation of powers in the face of current threats. The arguments that are made as part of this discussion, as well as the result itself, may tell us much about how we are—or are not—being changed by recent events.