Well, Ben, much as I look forward to dining with you to discuss these issues further, I won’t take that bet, because I tend to agree with you that al-Marwalah could be detained under the laws of war themselves, if the evidence could fairly be read, as you suggest, to indicate that he was engaged in combat against coalition forces under the direction of the Taliban. Such detention would, as in Hamdi, be for the purpose of incapacitating him from returning to the field of battle under our enemy’s command in Afghanistan. If and when the Taliban gives up the fight, such detention would end.

If that’s all you meant to say about al-Marwalah, then I apologize for overreading that portion of your book. I had assumed, however, that al-Marwalah was your lead example of the need to authorize detention on “premises [that] differ fundamentally from those of wartime detentions,” namely, incarcerations “designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” Why did I think this? Because you write that “the reason to detain men like Al-Marwalah . . . [is] that trained ‘Arab fighers’ who ‘don’t know’ if they’re Al Qaeda members pose a prospective menace to American lives.” (my itals)…

A quick note on the two latest case examples on the table in our ongoing detention debate. First, Mr. Al-Marwallah’s case is a prime example of why we shouldn’t make broad new detention policy based on the problems of Gitmo alone. Mr. Al-Marwallah may not be prosecutable for taking terrorist training pre-2001 since the criminal material support statute in effect at that time may not (emphasize may) have had the requisite extraterritorial scope. Any such lacuna in the substantive scope of the criminal law has since been corrected. Mr. Al-Marwallah, were he arrested today and gave uncoerced statements about his receipt of terrorist training, would be precisely prosecutable under at least two federal criminal laws I can think of, with few problems beyond. I believe we can handle the Mr. Al-Marwallah’s of the world today. No further legislation necessary. (As for Mr. Al-Marwallah himself, I’ll leave to Marty to detail the theory under AUMF, etc. as to what should happen now.)…

Let me start by saying that I don’t think I’ve substantially narrowed my detention criteria between the book and this discussion–though I am potentially amenable to doing so. The book is written for a general-interest audience and, consequently, at a higher-level of altitude than this discussion is taking place. Precisely to preserve the ability to have this discussion sort of more granular discussion, I wrote that the contours of the detainable class “will require careful legislative definition” (p. 163) and contented myself in the book with the most general principles for defining the class. I have, to be sure, been more specific in my discussion here as to some of the legislative criteria I might apply (emphasis on the word “might”), but I think they are well within the ambit of the principles I describe in the book.

Marty does not quote the sentence I actually intended as the centerpiece: “The core of the authority should more or less track the domestic power to lock up the insane: A person should be subject to administrative detention if he is both a member or associate of opposing forces and dangerous for that reason.” In this discussion, I have added a third prong to this two-pronged test–the impracticability of criminal trial–and I have tried to give more texture (informed by Judge Wilkinson’s opinion, Matt Waxman’s paper, and numerous conversations with Marty) to the two pre-existing prongs. But I see this more in the realm of refinement and addition of greater detail than as a broad change. That said, if it makes Marty more comfortable, I’m delighted…

Deborah poses what I think is really the pivotal question in the whole detention debate: If you design the detention regime reasonable and fairly–as I propose to do–isn’t your detainable class limited to people who are actually criminals and, if so, why not just try them as criminals? I believe, largley based on Bobby’s excellent work on this subject, that the substantive answer to her question is yes. Anyone (or almost anyone) detainable under the scheme as I envision it would, in an ideal world, be prosecutable as a criminal, for he has committed a crime. But we don’t live in an ideal world. In our actual world, there are likely to be prohibitive practical barriers to that prosecution in some cases; these are the problems that a reasonable detention scheme can constitutionally help alleviate. The debate turns heavily on how large and dangerous one believes that set of cases to be.

On the substantive side, there are likely people at Guantanamo (taking all government allegations as true for the purposes of argument) who committed no crime as the law stood in 2001. Since then, however, the laws have changed and almost any meaningful affiliation with, material support of, or training with Al Qaeda would now generate criminal liability. Bobby has argued powerfully that the problem is not in the scope of the detention authority the criminal law currently contemplates…

I’m tentatively encouraged by Ben’s new articulated test for detainability, which is not everything I’d hope for (especially if the “impracticability of criminal trial” prong is read broadly), but begins to bridge the gap.

Ben’s proposal in his book, however, is much more troubling.

My premise, and that of the judges in al-Marri, is that the detention authority Congress conferred in the AUMF — the maximum authority that the Constitution allows, per Judge Wilkinson — must be viewed as analogous to the traditional wartime detention authority, as translated to the new context of this noninternational conflict against a terrorist organization, and informed by the laws of war.

The detention authority Ben would have Congress authorize, by contrast, is one whose “premises differ fundamentally from those of wartime detentions” (p.162). In what way? Well, a “responsible” Congress “would treat these detentions openly and candidly for what they are: preventive incarcerations designed to keep extremely dangerous individuals from acting on their deeply held murderous beliefs and instincts.” According to Ben, this acknowledgement is “a psychological Rubicon we simply need to cross.”

Sorry, but I’m staying on this (constitutional) side of that line…

I’d like to explore a bit further the question of what stands in the way of reliance upon domestic criminal prosecution as the primary detention mechanism. First, however, I want to be clear that I do not think that we should entirely forgo military detention with respect to persons captured in connection with the two, relatively conventional armed conflicts currently underway in Afghanistan and Iraq, at least not when US forces are the ones involved in the capture.  I’m not sure if anyone involved in this week’s debate thinks otherwise–Ben, Deborah, and others have all referred to their being an appropriate place for the traditional approach to military detention, and I assume that this is what they have in mind.

That said, the question becomes whether to revert to a traditional prosecute-or-surveil approach or develop a hybrid framework, when dealing with persons captured outside the conventional combat setting (e.g., Boumediene and other GTMO detainees who were arrested in Bosnia).  It seems to be common ground that it is good policy, at least, to use the domestic criminal justice system if at all possible, and that the heart of the debate concerns whether there truly is, as Ben contends, a set of cases where that system won’t result in detention despite a manifest need to incapacitate a dangerous person.

That question has precipitated a recent outpouring of discussion regarding the substantive and procedural scope of the domestic prosecution system…

There seems to be something like consensus among us that the toughest remaining unanswered question relates not so much to procedure, but to the substance of who may be detained. And we have two very instructive approaches to this question – either asking who may be detained under current law (below, Marty calls our attention to Judge Wilkinson’s take, Roger to the Israelis’, and Bobby to Gabor Rona’s), or who should we be able to be able to detain in the interest of effective counterterrorism (Ben offers a concrete suggestion in his last post, and I’ve written elsewhere on this as well).

There are a few areas in which (I think we may all agree) the current law of “who” seems to match up more or less with current needs. If someone’s actually committed or attempted to commit an act of terrorism that can be demonstrated in court, the criminal law gives us plenty of authority to hold this guy (and try him). Likewise, if someone shoots at American soldiers on behalf of a foreign state (and this action is part of a more general conflict between their soldiers and ours), the Geneva Convention regime fits him fairly well, and detention is understandably authorized either under an act of Congress (like the AUMF) and/or the President’s Article II powers as informed/limited by the international laws of war…

There has been excellent dialogue and debate on this difficult issue over the past day or so. One thing is clear, whoever wins the next Presidential election will be forced to confront the issue of “preventative detention” almost immediately upon taking office on January 20, 2009.

Unlike my erudite colleagues, my simple mind sees the answer this way: try the detainees, all of them. Because this is a unique armed conflict, traditional methods of war detention are really not available - particularly as a matter of policy. We simply can not close Gitmo, and bring all of the associated problems and issues of detention into the United States. To me, preventative detention has been the real problem in Gitmo. We can not hold people indefinitely without trying them in this war. Certainly, the military commission process, in the past, has never been used for this purpose. Instead, the political branches should be working long and hard at constructing, as Ben suggests, a new court system that might better capture the nature of the threat - a mix of the law enforcement model and warfare tribuals. In legislatively creating the new court, there is the opportunity to have a new court system capture all sides of the debate. It could be the answer to achieving a real balance between the desire to promote the rule of law while still ensuring national security is paramount. The key to me, however, is that such a system must be adjudicatory in nature and function.

I believe we will be discussing the possibility of a new court over the next day or so, but it seems if properly constructed, such an Article III, civilian run, new system might be the answer to issues of habeas stemming from the Boumediene case, preventative detention, coercive interrogation, trials etc.

I have been away from DC, isolated in an office at the Hoover Institution with the internet mostly turned off, completing a short book on US-UN relations.  So I have not been participating in - from the posts I have managed to read - the quite marvelous Wittes Long War discussion.  But I surfaced long enough to find out that Elisa Massimino, long time head of the DC office of Human Rights First, and a good friend to me and to many Opinio Juris bloggers and our readers, has been named the new chief executive of Human Rights First.  This is great news for Human Rights First, and for the whole human rights community, and certainly I want to join so many other people in congratulating Elisa.  Well deserved! Press release is here.

I have no idea what you people are talking about.  Congress has no intention of standing on the sidelines while the Supreme Court micromanages Guantanamo Bay, as Rep. Lewis Gohmert (R-Tex)’s new H.R. 6615 proves beyond even the smallest shadow of a doubt.  Here is the title:

To provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, DC, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds, and for other purposes.

And here are the operative provisions, Section 3…

There have been a bunch of challenging and thoughtful posts on detention since yesterday evening, and there are a lot of issues to address. So once again, I beg everyone’s indulgence to bunch posts and arguments together. If I’m skipping over important points in doing so, just call me on it and I’ll try to circle back.

Let me start with the broad question of what a new detention regime would look like and how, specifically, it would differ from the current system of anemic CSRT review followed by habeas litigation. In my view, the basic problem with the current regime is two-fold: first, as we’ve been discussing, the standards, protections, and procedures, are all underdeveloped and could develop badly in any of a number of ways; second and less discussed, because the CSRTs themselves are such a weak instrument, the record they generate and that the government then has to defend before a habeas court–or the DTA-review court–is a total mess. My essential argument is that both the detainees’ rights and the government’s interests would be served better by a system in which a serious process up front authorized the detention that followed. The innocent detainee would get an earlier opportunity to clear up the misunderstandings that led to his arrest. And the government, when it prevailed, would prevail with a record worthy of respect and deference from the reviewing courts. Habeas would then look more like habeas review of state convictions than like the Gitmo cases–in which the habeas courts properly understand themselves as the front-line of real review. Such a system would also require the government to think hard at the outset of each detention about how it would justify that detention in court. And it would force the courts to say early on that a detention is justified so that the executive is not out on a limb on its own for years…

Procedural safeguards and substantive detention criteria exist in a dynamic relationship. One can ramp up procedural safeguards, for example, but this may have little effect on the government’s capacity to detain if the substantive detention grounds are defined sufficiently broadly. And by the same token, an unduly strict definition of who may be detained will limit the utility of a detention system no matter how flexible its procedural features may be. Accordingly, I think that Marty is quite right when he argues here and here that this is a crucial issue.

In both posts, Marty draws attention to Judge Wilkinson’s opinion (concurring in part and dissenting in part) in al-Marri, which offers a set of detention criteria that “conform to the evolving principles of the law of war” and that “should avoid . . . constituitonal concerns” even as applied to “detention of an enemy combatant apprehended on American soil.” (slip op. at 175-76). Marty predicts that these criteria, or something like them, may become “the standard that courts will employ in the habeas cases and elsewhere.” What are these criteria?….

I suspect that, thanks to Roger’s framing and Marty’s and Deborah’s thoughtful opening salvos, we’re not too far from getting to the two big questions with regard to Ben’s proposed detention statute. I have some thoughts as well, especially as to whether we need a new hybrid judicial system to handle these cases, but wanted to wait for Ben to go first.

In the interim, I wanted to just flag a pair of curious historical footnotes, both of which tend to get overlooked in these conversations (perhaps for good reasons). We actually have two pretty interesting exemplars of preventive detention legislation, and I wonder if both provide useful lenses through which to view Ben’s proposal…

A brief attempt to frame the questions for Ben and others on the issue of preventive detention:

I think Deborah is absolutely right to insist upon distinguishing the GTMO problem from everything else. Most of the GTMO detainees have been incarcerated for more than six years. Finally, they are receiving a serious opportunity to contest their detentions in the D.C. habeas proceedings, and we should allow those proceedings to run their course before offering any statutory fixes. The GTMO regime was designed primarily for interrogation purposes, rather than for the sort of incapacitation that is the focus of Ben’s book. That explains the fairly indiscriminate collection of prisoners, based on sketchy evidence, and the manner in which the detainees have been treated there. (Imagine how different GTMO, or an equivalent U.S.-based facility, would look if incapacitation were the principal aim — it’d probably resemble the U.S.’s historical POW facilities, housing (primarily) detainees about whom we have more certainty of dangerousness, and in humane conditions.) If Ben’s book and the Parhat example are any indication, in many of the GTMO cases the government probably will not be able to demonstrate that the detainees are among those whose detention Congress has authorized — particularly if the habeas courts begin to use a detention standard similar to that articulated by Judge Wilkonson last week in al-Marri. And, as I argued a few days after Boumediene was decided, the habeas proceedings will provide almost all of the procedural fixes that Ben proposes.

Accordingly, any statute to be considered in 2009 (and Ben agrees that Congress and the new President should wait until then) should be focused not so much on the GTMO detainees, but instead on (i) the thousands of detainees we are holding elsewhere, such as at Bagram; and (ii) future detainees….

Today’s discussion of Ben’s book focuses on what kind of detention law we should have going forward. Given that I am in Israel now I thought it might be useful to offer a comparative example. Such a comparison is particularly useful when proposed legislation is under consideration and another country has similar terrorist threats.

The Israeli Supreme Court has just ruled on the lawfulness of the Israeli Internment of Unlawful Combatants Law in the case of Anonymous v. State of Israel. Here are the ten principles of detention as articulated by the Israeli Supreme Court that I think are relevant for consideration of any future U.S. detention law….

Ben’s responsive post last night on the kind of detention review he favors (other than habeas) sets up perfectly what I take it is to be our topic for the day: whether a new detention statute is needed to resolve the situation at Guantanamo Bay. And between prior posts, recent Attorney General speeches, and the reality more or less of the situation, I think it’s fair to say we’ve got two broad topics for such legislation on the table: (1) new procedural guidance, and (2) guidance on who may be detained. I’ll take up a response to Ben’s latest on the procedural point here and I hope come back to “who” in a later post.

Ben writes: “What procedural rights do detainees have? I would answer these questions differently than the CSRT-DTA system did, but right now, we have no answers to them at all.” I guess I just don’t see it that way. Let’s start with the basic habeas corpus statutes, 28 U.S.C. §§ 2243–2248. What happens after a petition is filed? Well, for example, the government has to file a return “certifying the true cause of the detention,” (§2243, ¶3); the petitioner then gets a chance to “deny any of the facts set forth in the return or allege any other material facts,” (§2243, ¶6); the court can allow either party to amend these pleadings if it wants, (§2243, ¶7); and then on to the taking of discovery if it makes any sense in the case (§2246). All this so that the court can “hear and determine the facts, and dispose of the matter as law and justice require,” (§2243, ¶8). Then there’s some useful case law on all of this. And the Supreme Court has already helpfully said (in Hamdi) that these rules are the place to go…

Before we move on to the specific questions of detention and interrogation, I’m curious about Ben’s, and others’, reactions to one other fundamental question. Orin Kerr, over at the Volokh Conspiracy, mentioned to me offline that perhaps some of our differences in this symposium are premised on our “very different assessments of the terrorist threat.” I responded that I was skeptical of this — that I assumed there was not much distance between most of us, Ben included, on the nature of the threats (plural explained below), but only on how we think Congress, the courts, the Constitution and international law should respond to such threats.

For what it’s worth, my starting assumption has been that it is important to identify and distinguish two distinct sorts of threats. First, although there is a very interesting and important debate/discussion now underway as to whether and how al Qaeda is gaining or losing strength, I assume that al Qaeda is and will for the foreseeable future remain a chronic but intermittent threat with respect to what I will reluctantly call “familiar” terrorist acts — terrible acts of violence, but roughly within the range of what the West has been confronting for the past two or three decades: incidents such as the African embassy bombings and the London and Madrid bombings, as well as intermittent suicide bombs in subways, malls, etc. Some of those terrorist acts will occur in the U.S., more overseas. Perhaps, on occasion, something more dramatic, akin to the 9/11 attacks…

Thanks to Chris for inviting me to participate in this great “roundtable.” It has been wonderful to read the myriad perspective already.  Ben’s book is thoughtful and pushes the country in the direction it needs to go: policy makers need to begin to study, debate and perhaps embrace new ways to approach the War on al Qaeda. His book is a catalyst for such debate…as evidenced within this blog.

The discussion over whether this is a war or not seems to have been answered by Ben earlier today. But I think I would go a bit further…it is an armed conflict although one, as Ben notes, we are not accustomed to fighting. Thus, the problem with labeling the conflict as one or the other paradigm (war or law enforcement) triggers completely separate legal regimes. That is where we have been for the past seven years. The fact is the fight against international terrorism is an “armed conflict” — we have respnded to the attacks of 9/11 with armed force; and clearly the battles raging in Afghanistan (and now in Iraq against AQI) are indicium of war. But we also now use the FBI, the CIA and other law enforcement entities more than we ever have before - even in “combat”…There is a real mix of law and war in this conflict. As I see it, the key point of wisdsom in Ben’s book is that neither legal regime will work if strictly applied. There is a real need to embrace a third way, or a hybrid model. In my view, as many of you know, that is something worthwhile to at the minimum, have a commission chartered to review and seriously study….

We’ve not said as much as we might about the role of the “war” model in the war on terrorism.  And so, before we move on to more specific topics tomorrow, I’d like to share a few final thoughts inspired by an article by Bruce Hoffman and Seth Jones that appears in the most recent issue of the National Interest.

Discussion of the war in Afghanistan all too often assumes a relatively simplistic model in which the Afghan government, the U.S., and their allies are engaged in conflict with a single enemy force: the resurgent Taliban, with perhaps some degree of support from al Qaeda remnants in Pakistan.  Hoffman and Jones’ article–Cellphones in the Hindu Kush [subscriber access only, alas]–provides a useful corrective to that view, emphasizing the true complexity of the situation.  They report as follows…

Like our readers, I am enjoying the terrific and sophisticated discussion on Ben Wittes’ important and highly persuasive book (My short reaction: He’s pretty much right about most things). I hate to interrupt this flow with non-Wittes stuff, but I couldn’t resist a brief note on the growing non-U.S.-related  backlash against the ICC.

Justice Scalia, deriding strict constructionism and distinguishing it from his own brand of textualism, once wrote that “I am not a strict constructionist, and no one ought to be. . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

I was reminded of this quotation in reading Marty’s voluminous catalogue of laws, which he posted in response to my comment that “we do not have a lot of law here.” Allow me to play the textualist to Marty’s strict constructionism. I wasn’t talking about the number of laws or even the scope of their coverage. As Marty notes, I spend a number of pages in my book describing the many laws Congress has passed–and I spend a fair bit of time at the outset of the book as well laying out the state of the law on September 10, 2001. The comment was, rather, a reference to the collective failure of the our statutory and constitutional law to answer the questions we face with the specificity we need. I hope this is clear in context. In case it isn’t, let me hearby clarify: I do not now and have never doubted that Congress has passed many laws that arguably bear on the confrontation with Al Qaeda…

Let me first address Steve’s point about incrementalism, then Deborah’s and Steve’s tag-team argument that my distinction between statutory review mechanisms and open-ended habeas review is a false one. (I’ll address Marty’s, Geoffrey’s and Bobby’s posts in separate posts this evening.)

On incrementalism, I largely agree with Steve’s characterization of the court’s approach as incremental, and I don’t disagree either that it is a speculative claim on my part that the court’s intervention may carry significant costs. I acknowledge this point, I hope candidly, in the book (see pp. 122-123). That said, incrementalism is only a partial defense if you believe the court’s direction is wrong–ie, heading in the wrong direction slowly is, to be sure, better than heading in the wrong direction quickly, but it’s still the wrong direction. That, of course, raises the question of whether I’m right that the court’s actions are likely to have serious costs…

I want to explore Ben’s point about the desirability of having Congress craft the remaining details of how habeas review will function (now that Boumediene requires such review) rather than having judges craft those rules in the first instance.

There are indeed a raft of difficult procedural questions to be resolved in connection with the habeas review required by Boumediene.  As I discuss here, the government and the detainees recently filed briefs addressing a preliminary set of five such issues, including discovery, hearsay, confrontation, burdens of proof, and triggers for evidentiary hearings.

Judicial resolution of such questions may well result in a reasonable and well-designed detention review framework.  Or it might not.  Experience with the resulting system will tell us for sure, but that brings us to a reason one might prefer to have the legislature craft these rules in the first instance, rather than judges: it may be that we will wish to revisit these issues in light of experience, and that will be far easier to do if they are statutory rather than the result of a judicial opinion that purports to derive them from the Due Process Clause or from the constitutionally-protected aspect of habeas itself–especially if the statutory approach includes a sunset that compels Congress to revisit the issue after a certain period…

First, sincere thanks to the OpinioJuris team for inviting me to share my thoughts on Ben Wittes exceptional book; and thanks to Ben for such a well researched, well written, and provocative work.

My initial reaction to the book was that Ben has hit the proverbial nail on the head in terms of defining the policy challenge surrounding how the United States should or must frame the response to the threat of transnational terrorism.  More specifically, Ben clearly exposes how efforts to squeeze the response to this threat into existing legal frameworks has stressed the legitimacy of this response in legal, policy, and public perception terms.  My take is that Ben concludes, as the previous posts highlight, that the combined impact of this effort exposes the necessity of crafting a “hybrid” legal framework to deal with the “hybrid” threat we do and will undoubtedly continue to face.

This proposition raises so many potential points of controversy, ranging from separation of powers to the question of whether the threat is genuinely characterized as “hybrid” or “different” from what the U.S. and other states have faced in past decades.  Others have already begun discussion on these issues.  What I would like to focus on is the basic premise that an effective response to the threat of transnational terrorist threat requires a new - or hybrid legal framework.

I have my doubts. While I agree that if we try to fit the nature of this threat neatly into either a traditional law enforcement framework or an armed conflict framework, the result certainly does seem like trying to fit a square peg into a round hole.  As an interesting coincidence, I experienced this first hand on the day this online symposium began.  Yesterday I testified (out of order) as the first defense witness in the Hamdan military commission trial…

As I was saying, it is a central theme of Law and the Long War that “we do not have a lot of law here” (p.11).

Boy, that sure would be news to David Addington! If we don’t have a lot of law here, then why is it that the Bush Administration has spent the past seven years writing memo after memo arguing that it may disregard, or disingenuously construe, a whole slew of laws that constrain the President in his campaign against al Qaeda? And why has Addington crafted countless signing statements indicating that the President will circumvent Congress’s more recent handiwork?

Perhaps the more pertinent question is: “not a lot of law” compared to . . . what, exactly? Is there any previous war or armed conflict in which the Commander in Chief has been met with remotely as much law governing a military campaign? (David Barron and I argue, for what it’s worth (see pages 712-715), that a major reason why this conflict involves so much more law regulating the Commander in Chief than past conflicts is that this military “campaign” centrally involves detention and intelligence-gathering — subjects that Congress has commonly regulated — and that these activities are occurring not only on traditional battlefields overseas, but in civilian settings here at home, and affecting U.S. persons, such that the legislature has a greater interest in putting brakes on the executive.)

Let’s see…

Piggybacking (again) on Deborah’s response to Ben’s response to… (you get the idea): It strikes me that we’re having a debate over the proper role of the courts at a level of abstraction that is largely unhelpful. Ben says that he is okay with the role played by the D.C. Circuit in Parhat, for example, but that he is “uncomfortable with the open-ended role for the courts that will follow Boumediene. My acid test is whether we’re designing the system through litigation or whether we’re implementing a system with that litigation.”

I guess I just don’t see what is so open-ended, and perhaps clarification from Ben would help. The central inquiry in a habeas petition is whether the petitioner’s detention is unlawful. That’s it. Congress will of course have a lot to say in specifying whether or not the petitioner’s detention is authorized by statute, but it is then up to the courts, as it always has been, to decide (1) whether this particular petitioner falls within the substantive scope of the detention authority Congress has authorized, and (2) whether there are any constitutional problems either with the substantive scope of that authority, or with the process employed by the government in deciding that the petitioner falls within that scope. The answer in the vast majority of cases may well be “no,” especially if Congress does more than it has previously done to define the substantive detention criteria with any modicum of precision. But whether Congress so acts or not, I still don’t see how such review “threaten[s] an enormous and unwarranted expansion of judicial power in foreign and military affairs.” Indeed, there is an inverse relationship here between how active the courts will need to be and how specific Congress is. That doesn’t just strike me as the hand we’ve been dealt; that strikes me as the right way to run this railroad…

You write that you are “deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role.”  So judges deciding cases based on the review scheme set forth in the brand new DTA (and MCA) statute is good.  Judges deciding cases based on the review scheme set forth in the age-old habeas statute and as elaborated over centuries of common law practice is deeply disquieting? I think I need to understand in more detail here why you think there’s an important structural difference as between these options.

Deborah’s and Marty’s challenging posts throw down the gauntlet in a number of important areas. To keep this response at a reasonable length, I’m going to boil their points down to five broad arguments. I’m not trying, in doing so, to dodge or elide their other points; consider this as a first pass at a response. I’m happy to swing back and respond further or in more detail to more granular points if they–or others–want. Before I begin, however, I want to thank Marty and everyone else for the very generous words about the book, which I appreciate deeply:

First, Deborah complains that there’s less of a gulf than one would think between my criticisms of the role the courts have played and the role that I advocate their playing. I think this is wrong. To be clear, I advocate an extensive role for judges in the adjudication of contested detention issues, yet I am deeply disquieted by any substantial role for judges in the design of the systems in which they will play that key adjudicatory role…

As usual, I agree with much of what Marty says, especially Marty’s suggestion that he is almost inclined to say that this is the single volume to read to find out where we are and where we’ve been (query whether the same might also be said about Jane Mayer’s new book, but more on that later). Marty is also right, I think, to call Ben’s critique of the role of the judiciary “odd,” for reasons that he (and Deborah) articulate in some detail, and which I won’t repeat here. But I think both Marty’s and Deborah’s posts skip slightly over a point that I think bears emphasizing: the role of the courts has, in my view, been incremental — sort of an attempt at a public conversation with the political branches. So it’s not just that we’d be infinitely worse off without these decisions (as Marty suggests), or that the courts (and the Supreme Court in particular) have basically gotten it right (as Deborah suggests). Rather, it’s that the courts did exactly what we should want them to do during crisis times — speak very softly at first, but raise the volume and sharpen the tone (a) as time goes on; and (b) as the earlier decisions are ignored / side-stepped / mis-appreciated…

I will address later this morning the raft of issues raised by Deborah’s and Marty’s posts. I want, however, to briefly clarify a point that has become a little bit muddy as to my view of whether America is really at war. Several posts seem to take it as a given that I am arguing for a war model in the current conflict. Yet notwithstanding the book’s title and its reference to the “long war,” I actually argue against overreliance on the war model–and specifically against reliance on the war model as a long-term basis for strong counterterrorism actions. The final paragraph of the book describes the conflict as “a long war, a war that isn’t quite a war but isn’t quite anything else either, a war we have still not compellingly defined and may never fully define and yet will need to regulate and prosecute anyway.” Elsewhere, I describe it as “something that goes beyond war altogether” and describe in some detail the costs of relying on the war model–which was, in my judgment, inevitable as a short-term response to the immediate crisis of 9/11.

In brief, I believe the war on terror is, in some sense, a war and certainly draws on the legal traditions surrounding warfare. But a core argument in the book is that we should treat terrorism as a sui generis area of its own–different from war, different from law enforcement, yet drawing pervasively on both of those traditions. And I specifically reject the notion that the primary body of law governing it should be the laws of war.

My apologies for implying that Ben is a neoconservative, but I think that the title of my last post — “Damning International Tribunals With Faint Praise” — is accurate. Stray or not, Ben’s comment praises the international tribunals for (ostensibly) not offering defendants the same kinds of protections that defendants enjoy in U.S. civilian courts.The belief that the Rome Statute underprotects defendants is at the heart of the neoconservative critique of the ICC; Ben’s comment thus partakes of that critique, which applies just as strongly to the ICTY and ICTR’s similar procedural regimes.  The only difference is that neoconservatives oppose the (allegedly underprotective) ICC because they fear that it mayone day prosecute an American, while Ben supports the (allegedly underprotective) international tribunals because he hopes that they may one day prosecute alleged terrorists…

Thanks so much to the Opinio Juris folks for the opportunity to participate in this wonderful symposium. Ben’s book truly is indispensable — a must-read for all those interested in these important topics. In particular, Ben’s descriptions of the difficult questions, and his narrative of how we got to this unfortunate point with respect to many of them, are thorough, precise, and (most importantly) lucid — which is saying quite a lot when it comes to these debates. I am almost inclined to say that if I had to recommend a single volume to someone to inform them of where we’ve been and where we’re going in the conflict with al Qaeda, it would be this one.

Almost…

In a similar vein as Peter and Peggy before me, I want to mine two of Ben’s premises: that we are in a new kind of war and that this needs a new kind of law. I do agree in part with Ben on each of these– I think we are facing conflict of a different sort than we have before and I also think that we need legal tools that address the issues spawned by such a conflict.  But I also think that the conflict we are facing is closer to a complex intelligence and law enforcement operation than a war and that we can address these issues by adjusting and updating existing laws rather than turning this into a founding moment for a new corpus of law, a new balancing of fundamential rights, and a new set of institutions.  Our existing Constitutional tradition may be messy, but it is up to the task…

Peggy and Peter, with slightly different emphases, both criticize me for focusing too narrowly on domestic legal policy. As Peggy puts it, by doing so, I “implicitly endorse the notion that the U.S. is unique in its experience of terrorism and the challenge of crafting laws to address it.” It’s a point worth addressing explicitly.

The United States is not the first country to have to reconcile strong antiterrorism steps with the rule of law. Far from it. Yet it is important not to understate or overlook the genuinely unique features of the emerging American confrontation with terrorism–features that make a multilateral approach both necessary and, at times, profoundly difficult, features that also necessitate to some degree the hybridization of law enforcement and military powers that we otherwise try to keep distinct…

First, thanks to all for the great opening posts, and more broadly to Chris, Peggy, and the whole Opinio Juris crew for welcoming me into the fold. I’m delighted to join such a dynamic forum, and very much look forward to our exchanges ahead.

Ben suggests as a central topic to kick of this week’s discussion a broad structural question: “Does anyone think the optimal environment for executive prosecution of the war on terror (or whatever you want to call it) involves, for example, having no legislative guidance regarding whom to detain or under what rules?” Well, setting aside the whole “is it a ‘war’ on terror” question for a moment, no one I know thinks Congress has no role to play in U.S. counterterrorism law and policy. Or, with fewer negatives: Yes of course, Congress has an important role to play. I’d also wholeheartedly agree that Congress has acquitted itself rather poorly so far, remaining AWOL on critical questions of detention, interrogation, etc. long after it had become clear (for example) that this administration had some pretty radical views, both on the scope of its own power, and on what makes for effective national security policy. We’ll disagree, Ben, about what exactly Congress should do with its power, but if your book’s primary point is this structural one – no issues there. Indeed, I can’t think of anyone I’ve encountered (human rights advocate or no) who’d disagree. . .

I’m not surprised that Ben (as one of the new foreign policy pragmatists) says he’s amenable to international law as part of an anti-terror answer (assuming that that a legal fix of any description is necessary — I hope we’ll hear from Deborah Pearlstein with her argument that we don’t need to change international law, either). But it’s too bad that something along the lines of his post isn’t in the book.

Here’s why. . .

I had planned to lurk on the sidelines until the discussion of Ben’s fascinating book moved to the “need” for a new interrogation statute — I, for one, am more than happy to have “interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,” if by the tendentious expression “at the highest altitude” we mean “consistent with the Torture Convention.”  But I couldn’t let the following comment go, even if it is just an aside in Ben’s response to Peter:

And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials.

This is the standard neoconservative canard concerning the ICC — though with the added twist that Ben seems to believe that, at least in terms of prosecuting terrorists, the alleged lack of due-process protections at the ICC would be its strength, not its weakness…

Thanks to Chris and his colleagues at OJ for giving me an opportunity to participate in this important discussion.

Today we’re focused on broad premises underlying the book, and in particular the utility of using the concept of war in connection with counterterrorism policy.  Peggy’s most recent post critiques the Bush Administration’s emphasis on the war model, concluding that “the framing of our current counterterrorism policy as a “war” — including the legal policies Ben effectively critiques in the book — has cost the U.S. more in terms of prestige, reputation, support from allies and cooperation from other foreign states than it has gained us.” Perhaps so, but I’d like to press on that claim a bit…

Peter makes two points, one with which I largely agree, the other with which I disagree. Agreement first:

I have no doubt that the structures we create to fight terrorism have to be reconcilable not only with the American constitutional tradition but with international law as well. While I am skeptical that a meeting of the minds between American and European sensibilities will be easy to come by, I don’t believe the United States has been well served by its international isolation on the key actions it has taken in the war on terror–any more than the executive branch has been well served by its go-it-alone posture domestically. The book focuses on domestic law not because I don’t think international law is important but because it’s something over which the United States has less short-term control. In other words, in the long run, I believe that the international community will need to significantly rethink and supplement the law of armed conflict as pertains to this kind of asymmetric warfare. And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials. So I’m open to international law, as Peter puts it, as part of the solution. But that’s in the long run. My concern in this book was what America should have done over the last seven years and, more importantly, what it should do now. Given the problems of garnering international consensus, international law was an improbable instrument for that project. For such short and medium term questions, domestic law seems like the essential tool…

I will join the chorus of praise for this terrific book. But I want to add briefly to Peter’s critique of Ben’s premise that the current threat from transnational terrorism has us in a “long war,” by looking at what this means for broader foreign policy – one that encompasses, but it is not driven by, domestic legal policy. The book correctly, and refreshingly, recognizes two important points: (1) that addressing the threat of terrorism requires approaches that encompass domestic law enforcement and regulation as well as applications of armed force and multitude of other cooperative intelligence and military operations; and (2) that this hybrid policy approach has been – and continues to be – the hallmark of U.S. counterterrorism policy since at least the Regan administration. (I hope we can all finally retire the well-worn line of the Bush administration that “the problem with prior administrations was that they viewed terrorism purely as a law enforcement problem.”) Given those important admissions, what is the rationale to adopt the framing of counterterrorism policy as a “long war with a dangerous foe?” (p. 17)…

This is a great book and there’s a lot to chew on here.  By way of taking up Ben’s opening volley, I have two general thoughts:  1) things may need some fixing, but not necessarily at the foundational level framed in the book, and 2) to the extent things do need fixing, international law has to be in the picture.

The first point goes to the question of whether or not we’re actually in a “long war”.  As I argue here, that premise looks increasingly problematic.  Al Qaeda looks a lot less scary seven years out from 9/11.  I think that shows through in the book with Ben’s repeated use of “menace” to describe individuals who are basically foot soldiers.  We could safely let all but the top leaders go without having much to fear (as Ben notes, we certainly can keep former Gitmo detainees on the no-fly list!).  The terrorists haven’t been able to muster much of a fight lately.  Even the episode which lends itself most to arguments in favor of extreme preventive response — the liquid explosive plot to take down a dozen transatlantic jetliners — turns out not to have been much of a threat after all…

Let me start by thanking Chris for hosting this discussion, of which I’m delighted to be a part, and by thanking as well all of those who are participating. It really is a wonderful group, and I’m excited about the coming exchange.

I wrote Law and the Long War out of a sense of frustration with the debate that has developed over law and the war on terror. For several years, America has been convulsed in a very earnest discussion over what the law is, rather than over what the law should be. We are debating questions that mostly have no clear answers–what is the proper scope of detention authority? what are the limits of coercion in interrogation? what are the minimum legal requirements for terrorist trials?–as though the law as it stands today answers them fully. In doing so, many Americans–including many intellectuals–have managed to convince themselves that these questions are easy, rather than agonizingly difficult…

We are pleased to host this week a discussion of Benjamin Wittes’ book Law and the Long War. Ben’s book is a comprehensive analysis of the relationship of law and of our Consitutional structure to counter-terrorism policy. It is a book that is sure to ignite debate from all around.

Ben’s opening post is available here. The other posts will be listed in the “Recent Posts” window, below.

For some background on how this week’s discussion is organized and on the guest contributors, click the “Continue Reading” link at the bottom of this window.

Noted with awe how cool David Cameron is:

Mr Cameron gave Mr Obama a selection of CDs by the Smiths, Radiohead and Gorillaz.

Snarky comments about what music McCain would give a young, hip Liberal leader from the UK welcome.

John-Paul Flintoff writes in this Green Central column of the Sunday Times (London) of July 23, 2008, that compound interest should be banned in the interests of both global economic development and the global environment.  His word, not mine; he is unequivocal about it.  But could this possibly be a good idea?  In theory or practice?  Doubtful at best.  (Thanks Glenn for the Instalanche!)

Just in case there is some blogger fairness doctrine I don’t know about, I should mention that Obama seems to generally favor the ICC — though he obviously has reservations about U.S. membership.  Here is his clearest statement, made last October:

Now that it is operational, we are learning more and more about how the ICC functions. The Court has pursued charges only in cases of the most serious and systemic crimes and it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions are a credit to the cause of justice and deserve full American support and cooperation. Yet the Court is still young, many questions remain unanswered about the ultimate scope of its activities, and it is premature to commit the U.S. to any course of action at this time.

The United States has more troops deployed overseas than any other nation and those forces are bearing a disproportionate share of the burden in the protecting Americans and preserving international security. Maximum protection for our servicemen and women should come with that increased exposure. Therefore, I will consult thoroughly with our military commanders and also examine the track record of the Court before reaching a decision on whether the U.S. should become a State Party to the ICC.

Generally encouraging — until we consider a bizarre comment Samantha Power made when she was still one of Obama’s senior foreign-policy advisors…

No, that’s not a snarky question. He has consistently made comments that seem to indicate far more openness to the Court than the typical Republican.  In 2002, he voted against the appalling American Service-Members Protection Act (aka “The Hague Invasion Act”).  In 2005, he said “I want us in the ICC, but I’m not satisfied that there are enough safeguards.” In 2006, he publicly reminded the Sudanese government “that the International Criminal Court has jurisdiction to prosecute war crimes in Darfur and that Sudanese leaders will be held personally accountable for attacks on civilians.” And just yesterday he expressed a willingness to consider prosecuting Osama bin Laden in an international forum instead of in a U.S. court:

We have various options. The Nuremberg Trials are certainly an example of the kind of tribunal that we could move forward with. I don’t think we’d have any difficulty in devising an international — internationally supported mechanism that would mete out justice. There’s no problem there.

The ICC is obviously the legal heir to Nuremberg, an international mechanism that is supported by more than half of the world’s States (107, with Suriname’s recent acesssion).  And although 9/11 would not be within the Court’s temporal jurisdiction, all of al-Qaida’s attacks committed after 1 July 2002 would be. So would John McCain want the ICC to prosecute bin Laden, should he ever be captured? Inquiring minds want to know…

As I write, I am sitting on the balcony of the Castle in Karem Maharal, a few miles north of Caesarea and a few miles south of Haifa. I look out over my balcony at the vineyards drinking Tishbi wine, which has been grown here in Zichron Yaakov for decades. To my left the sun is setting over the Mediterranean Sea. The family cat is asleep on the patio and the neighborhood dog is asleep on the picnic table. A partridge slowly walks the lawn. Dogs are barking in the distance. Horse hoofs on pavement echo quietly below. One can hear a shepherd leading his flock home from pasture. Children are playing in the local playground. The stores in the village are quickly closing, as the Sabbath is fast approaching.

My accommodations could be highlighted in Architectural Digest. The rooms feature stones, high ceilings, exquisite tilework, and the art work of Udi Stuler, owner and operator of the castle. He has owned the place for almost three decades, and we talked about how the price of real estate in this region has gone through the roof in the past decade. In a word, it is peaceful here, as peaceful as one would expect from a weekend visit to the countryside in Italy or Switzerland.

From where I sit, I am looking north. Fifty kilometers (30 miles) to the north is the Israeli border with Lebanon. Hezbollah controls the southern part of Lebanon. During the Lebanese war in 2006, missiles landed a few kilometers from here. This is the other face of Israel, the face that you read in the papers….

. . . and I bet you are, too.  In a recent move ostensibly aimed at shoring up its national identity, Germany has instituted a citizenship test.  Naturalization applicants must correctly answer 17 out of 33 multiple-choice questions on German institutions and society.  The questions are drawn from a catalogue of 310 questions that test-takers are given in advance.

Try your luck here.  For most, you don’t exactly need a high level of background in things German.  Simple multiple choice strategies will work just fine.  Some examples (and thoughts) after the jump.

I just wanted to remind everyone that next week we will host a discussion of Benjamin Wittes’ book Law And the Long War. Besides Ben, Bobby Chesney (Wake Forest),  Geoff Corn (South Texas), Glenn Sulmasy (U.S. Coast Guard Academy), Steve Vladeck (American University), Marty Lederman (Georgetown) and possibly one or two others will be joining us for the book symposium.  And it will be Deborah Pearlstein’s first week as a Opinio Juris blogger.

This should be a lively and informative discussion and we hope you will take part in the conversation…

We are very happy to announce that, as of Monday, Deborah Pearlstein of Princeton University’s Woodrow Wilson School of Public and International Affairs will be joining Opinio Juris as our newest (OK, only by two weeks) member.

A scholar and practitioner in national security law, Deborah served from 2003 to 2007 as the founding director of the Law and Security Program at Human Rights First (formerly the Lawyers’ Comittee for Human Rights). During that time she oversaw litigation and advocacy activities concerning the human rights implications of U.S. counterterrorism policies.

Among her other notable experiences, Deborah clerked on the U.S. Supreme Court for Justice John Paul Stevens and served as a speechwriter for President Clinton.

And she has blogged on Slate’s Convictions blog and with us here at Opinio Juris (see here, here, and here).

We look forward to Deborah’s contributions and are very happy to have her as our colleague.

Welcome, Deb!

I was struck by this piece tucked away in today’s Washington Post, noting that Pat Kennedy, Under Secretary for Management at the State Department, had to remind diplomatic personnel in Germany that they were prohibited from attending Barack Obama’s speech today in Berlin.  It is a mark of just how unprecedented Obama’s current overseas visit is, mixing as it does official travel as a U.S. Senator with travel that is funded and staffed by his campaign.  When I was in the Foreign Service, I never had to face this question. (I worked on President Clinton’s 1994 state visit to Berlin – which included a speech at the Brandenburg Gate.)  The general rule for U.S. personnel overseas is an absolute prohibition on partisan activities.  As explained in the article, the Hatch Act restrictions that apply to U.S. Government personnel stateside are more permissive than the Foreign Affairs Manual’s prohibition:

AFSA [American Foreign Service Association] representatives met with Kennedy and State Department legal representatives Tuesday after two unnamed embassy employees complained to the union that the prohibition — in an internal statement issued after some stationed there had asked about attending the rally — violated their civil rights.

Kennedy cited section 4123.3 of the third volume of the lengthy manual of personnel regulations for the Foreign Service, which says: “A U.S. citizen employee, spouse, or family member shall not engage in partisan political activities abroad.”

In the interview, Kennedy described the regulation as “a standing policy,” although he acknowledged that “I don’t believe we’ve ever had to interpret this before. None of us thinking about this could come up with a precedent” for the Obama campaign rally.

He said that despite the manual’s prohibition on “spouses and family members,” the departmental interpretation was that only Foreign Service members were barred from attending the event.

Given that last comment permitting family members to attend, and the fact that German nationals employed by the embassy are not under the same prohibition as US citizen employees, the diplomatic personnel. . .

I’ve been spending more time than is probably healthy over the last year researching the Compact Clause. Article 1, Section 10 of the Constitution prohibits U.S. states from entering into any “treaty, alliance or confederation” and bans them “without the consent of Congress” from entering “into any agreement or compact with another state, or with a foreign power.” The Supreme Court has had its way with these provisions in the context of interstate compacts, interpreting “any agreement” to only mean “some agreements”, namely those that threaten the unity or supremacy of the federal government. And most (with a few notable exceptions like Ed Swaine and his dormant treaty power thesis) have assumed that the Court’s rationale extends to compacts or agreements with foreign powers. That might explain the results of my own research, where I’ve only found 5 instances in which Congress has specifically consented to a foreign compact…

I really wanted to ignore the Wall Street Journal editorial that Julian mentioned yesterday, filing it in the “life is too short” category.  But I can’t help myself, because the editorial is just shockingly factually inaccurate — to say nothing of its rather curious judgment, such as the idea that Bashir “may be the only man able to guarantee… peace” in Darfur.  So without further ado…

Under international law norms, the ICC can prosecute citizens of signatory states. But it cannot prosecute citizens of nations, such as Sudan, that are not party to the ICC.

Of course it can.  Putting aside a Security Council referral, which is the real object of Rivkin and Casey’s wrath, Article 12 of the Rome Statute gives the ICC jurisdiction over crimes committed by nationals of a non-party State on the territory of a State Party.

What’s more, in 2002, the U.N.’s International Court of Justice — a separate institution from the ICC — upheld the notion that a country’s most senior officials could not be prosecuted unless it had given its consent.

No, it didn’t — not for international courts.  In paragraph 61 of its Judgment, the ICJ specifically held that “an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction.”  And it cited the ICC as an example of such a court…

I know we will be having a discussion of Tom Farer’s book on a grand liberal strategy for dealing with terrorism down the road, but I wanted to note that the general issue of grand strategy is at the heart of Philip Bobbitt’s new book, Terror and Consent.  It has deservedly been widely reviewed and highly praised - Ferguson in the New York Times Book Review, for example - “the most profound book on the subject of American foreign policy since the attacks of 9/11 - indeed since the end of the cold war.”

My own review of Terror and Consent is out in the Times Literary Supplement this week ….

I don’t know how seriously to take Prof. Francis Boyle, who is literally dying to file an application in the ICJ on behalf of Iran against Israel and the U.S.   Still, this interview in the Iran English language news site suggests something might happen soon. And Iran might get a sympathetic hearing at the ICJ.  And it would raise interesting legal issues, even if it had no practical effect on the Israeli Air Force.

Honestly, I thought I had seen it all.  I had resigned myself to the traditional media doing everything they could to avoid drawing attention to McCain’s inability to keep basic facts about foreign policy straight — Sunni vs. Shia, Czechoslovakia (four times!), Somalia vs. Sudan, the remarkable Iraq/Pakistan border.  But I never expected CBS to actually edit an interview with McCain to conceal his newest mistake — his claim that the surge is responsible for the Anbar Awakening, when the Awakening in fact predated the announcement of the surge by a few months.  Yet CBS did exactly that, replacing McCain’s actual answer to Katie Couric’s question with tape from much later in her interview.  See for yourself:

As Ilan Goldberg has pointed out, this a fundamental misunderstanding of recent Iraqi history, not the kind of verbal gaffe that McCain has made so often in the past.  So it’s shameful that CBS would try to cover for him.  When did CBS morph into Pravda?

UPDATE: CBS has offered the following “explanation” for editing out McCain’s mistake:

As all news organizations do with extended interviews, last night’s Obama and McCain interviews were edited to fit the available time and to give viewers a fair expression of the candidates’ major differences. The full transcript and video were and still are available at cbsnews.com.

Funny, you’d think the fact that one candidate understands Iraq and the other doesn’t would qualify as a “major difference.”

Globalization’s effect on basketball has been in the news quite a bit recently.  I blogged last week about the Iranian national team coming to Salt Lake City to play in the NBA’s Rocky Mountain Revue.  On Monday, the superb FP Passport blogged about “The NBA’s euro problem” — the fact that more and more NBA players, including American ones, are jumping to the best teams in Europe “thanks to the rising euro and an influx of Russian investment in the European league.”

Still, the proverbial shot heard around the world (sorry to mix my sports references), has to be the fact that Brandon Jennings, the #1 ranked high-school basketball player in the U.S., has decided to play professionally for a European team instead of attending the University of Arizona…

The somewhat surprising answer from U.S. Attorney General Michael Mukasey is “Yes!”, or at least an acknowledgement that  ”the Nation remains engaged in an armed conflict with al Qaeda, the Taliban, and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans–soldiers and civilians alike.”  This is one takeaway from an address he made today at the American Enterprise Institute. In essence, this is the official Executive Branch response to this summer’s blockbuster (and my view dangerously wrongheaded) Boumediene opinion by the U.S. Supreme Court.  There is a lot more to the address as described by the WPost here, but for international lawyers, it is interesting that the U.S. A-G thinks it is important to clarify the existence of an armed conflict with Al-Qaida.  As a political move, this is an interesting move, since it would force members of Congress to go on record about whether or not this is really a “war” and it will no doubt eliminate a lot of political posturing.  On the other hand, acknowledging the existence of an armed conflict seems a bit redundant for U.S. law purposes under the September 11 Resolution, and it is unlikely to persuade international lawyers much either way.  So we’ll see if this goes anywhere.  Here are the key excerpts from the address:

AFP is reporting that Radovan Karadzic,  the former president of Republika Srpska and the former head of the euphemistically named Serb Democratic Party, has been arrested.  This is great news — if the ICTY had a “most wanted” deck of cards, Karadzic would be the Ace of Spades…

As frustration with the Bush administration’s War on Transparency continues to mount, scholars and pundits are beginning to suggest that the U.S. should think about creating a South African-style Truth and Reconciliation Commission to investigate the administration’s many crimes.  Nicholas Kristof is one example. Richard Clarke is another.  And a third is Katherine Tiedemann, writing in The American Strategist:

The South African Truth and Reconciliation Commission is generally held up as the model for such bodies, which don’t have formal judicial power but instead serve primarily as instruments for the discovery of past wrongdoings by governments.

So far, when each instance of misconduct has been revealed — from the destruction of CIA interrogation tapes and waterboarding to extraordinary renditions and habeas-corpus-free detention of prisoners at Guantanamo — individual solutions have been sought and some individual actors have been put forth to be held accountable. But this approach is piecemeal at best and does not get at the connective tissue and the systematization of abuses.

A truth commission, however, would provide a more holistic approach to the violations that have been committed or ordered by individuals and agencies within the government. A commission would serve as an opportunity to look back and expose where the administration started to go wrong in its decision-making process; allow those whose rights have been violated to be heard; and give Americans on the whole a chance to cleanse our national conscience–and our image abroad.

Though I am certainly sympathetic to Tiedemann’s goals, her suggestion both misunderstands the nature of South Africa’s TRC and vastly overstates the potential for an American TRC to deliver either truth or reconciliation…

The Seventh Circuit last week rendered the most unusual foreign non conveniens decision I have ever read. The case presents a cautionary tale about the impact that foreign judicial corruption can have on domestic litigation.

Mañez v. Bridgestone Firestone involved a tort action against Bridgestone Firestone filed in Indiana after José Samuel Mañez-Reyes died in a “rollover” car accident in Veracruz, Mexico. The district court dismissed the action based on forum non conveniens. But the surprising twist came when the Mexican court ruled that it did not have jurisdiction over the case, despite the fact that Mañez-Reyes’ death occurred there. If the Mexican court could not hear the case, this opened the door to return the case to the Indiana federal court. Smelling something fishy, Bridgestone raised serious questions as to the Mexican court’s actions. The district court conducted an evidentiary hearing, and concluded that dismissal by the Mexican court was procured by fraud. The court fined…

The New York Times has a prominent, page 3 international story datelined from the UN by C.J. Chivers, “US Position Complicates Global Effort to Curb Illicit Arms.”  Let me step here directly, but I hope carefully, into the international aspects of a very emotional US political debate.

Readers will no doubt react differently to the tone of the story; for my part, I thought it rather too involved in a particular narrative about the heroic efforts of the UN and global civil society activists to overcome the demonic and ignorant efforts of the NRA, which pulls the strings of the US government, to end the flow of small arms and light weapons into the hands of child soldiers in conflicts worldwide.  Others, I grant, will read the story differently…

It’s been a while since I wrote about Luis Posada Carriles, former CIA asset and admitted terrorist, who currently walks the streets of Miami as a free man due to the Bush administration’s disinterest in punishing terrorism committed against countries the US doesn’t like.

Fortunately, Posada Carriles may not be free much longer, thanks to a decision by the Panamanian Supreme Court:

Panama’s Supreme Court overturned a presidential pardon of four Cuban emigres accused of plotting to kill Fidel Castro, including former CIA operative Luis Posada Carriles, officials said Tuesday.

The court ruled late Monday that 180 pardons granted in 2004 by outgoing President Mireya Moscoso — including of the four Cubans — were unconstitutional, leaving open the possibility that many of those formerly cleared could return to jail.

The attorney in Panama for Posada, Rogelio Cruz, said he believes Panama may request his client’s extradition from the U.S., where he is being held in jail.

“Given the good relations between President (Martin) Torrijos and the Cuban government, I have no doubt that Panama will ask for the four anti-Castro militants to be extradited from the U.S.,” Cruz said.

The signs all point to Cruz being right…

Something I missed while I was away: a substantial new tax on Americans who want out.  As its name implies, the Heroes Earnings Assistance and Relief Tax Act of 2008 (will some self-respecting legislator please put a stop to bill names adding up to forced acronyms) is mostly about tax relief for service members and veterans.  But there is also a section ("revenue provisions") which puts a potentially big price tag on the renunciation of US citizenship.  Renunciation is now treated as a tax event, in the sense that you are considered to have sold all your assets just before renunciation, with attendant capital gains consequences.

Two observations.  First, the regulators must have considered earlier measures ineffective in policing tax-related renunciations.  Under the 1996 immigration reform law and section 212(a)(10)(E) of the Immigration Act, individuals deemed to have renounced their citizenship for tax purposes are inadmissible for immigration purposes (the provision was prompted by the amusing story of Kenneth Dart, who renounced his citizenship only to have his new homeland Belize name him as its consul in Sarasota, where, surprise, he had been living all along).  That is, if you’re a tax-renunciant, you can’t come back; no more visits to your $15 million NYC pied-a-terre! 

Some 470 individuals were listed last year in the Federal Register as such (look for your Zurich-residing college classmates here).  Guess that wasn’t enough.  Now everyone with a net worth of over $2 million takes a hit.  The new law also applies to green card holders who abandon their permanent residence (think long-time residents retiring back home).  As described in this WSJ article, US heirs to foreign estates will also suffer, through the application of the stiff gift tax rather than fading estate duties.  Get that rich uncle of yours to naturalize, pronto!

Second, the new rule is arguable inconsistent with human rights norms.  Article 12 of the International Covenant on Civil and Political Rights "everyone shall be free to leave any country, including his own."  Now we don’t usually think of the gilded-age set as a protected class under international law.  But consider the individual who was born a US citizen abroad, by virtue of parentage, who may never have even set foot in the United States (may not even know who Patrick Henry Benjamin Franklin is).  Should she have to pay an exit fee from US citizenship?

Opinio Juris’ good friend Bobby Chesney has dropped us a note to let everyone know that the National Security Advisors blog is being revived, with more content and new stuff.  Check it out.  

And while I’m at it, thanks very much to Glenn Reynolds and Instapundit for the shout out about the new site!  It’s an Instalanche!

Past and current presidents of the American Society of International Law today urged leaders in Congress to take legislative action to comply with the ICJ decision in Avena and halt the executions of Jose Medellin and the other affected death row inmates until the review required by the ICJ has been carried out.  Full text of the letter is here. So, readers, is Peter Spiro right in predicting that Jose Medellin will live out his days in prison (but also wrong in predicting that it won’t be because of congressional action)?

When international lawyers say that sovereignty is a social construction, I doubt any of us mean it as literally as does the Seasteading Institute, an organization founded by Patri Friedman, grandson of Nobel Laureate economist Milton Friedman, and Wayne Gramlich. Their goal is to foster a seasteading movement, people building structures on the high seas that would become independent and sovereign… essentially floating city-states. According to Wired, the Seasteading Institute “plans to splash a prototype into the San FranciscoBay within the next two years, the first step toward establishing deep-water city-states…”  Can sovereignty be literally constructed? Is there a market for governance?

One of the most interesting aspects of the ICJ’s recent order in Avena pertains to the Court’s finding of jurisdiction under Article 60 of the Statute.  Mexico filed the case as a request for interpretation about the meaning of the Avena judgment because the United States withdrew from the Optional Protocol.  Thus, the only way for the ICJ to have jurisdiction is to find a dispute between the parties as to interpretation.  There is just one little problem:  the United States indicated in its written briefs and oral presentations that it fully agrees with Mexico’s interpretation of the decision.

By a vote of seven to five, the ICJ ruled that there was a dispute as to interpretation and upheld its jurisdiction.  Here is the key language from the majority…

I noted a few days ago that the Security Council is unlikely to pass a resolution deferring the Prosecutor’s investigation of Bashir, given the number of non-permanent and permanent members of the Council who are supporters of the ICC.  I think that position is even more sound in light of the European Union’s promise today — on the 10th anniversary of the signing of the Rome Statute, obviously not a coincidence — to enforce all arrest warrants issued by the Court:

The European Union (EU) has vowed to ensure swift enforcement of all arrest warrants issued by the International Criminal Court (ICC) and called on non-signatories of the Rome Convention to urgently sign into the treaty, PANA reports.

In a statement marking the 10th anniversary of the Rome Statute of the International Criminal Court, the EU stated that the rest of the world was under obligation to bring to an end, impunity "for the most serious crimes which shock the conscience of humanity".

"ICC is a key tool, both in combating impunity when the most serious crimes, striking at the very essence of humanity are committed and in preventing the use of violence," said EU Presidency in the statement issued Thursday.

[snip]

"The EU undertakes to do everything in its power to support the court and help ensure that all arrest warrants are swiftly enforced," the EU President, currently held by France, said in the 10-point statement.

The fact that the President of the EU is French is particularly significant, of course, given that France has a veto at the Security Council…

This item should take care of it, not the least because it appears on the op-ed page of the New York Times. 

The question of McCain’s presidential eligibility, in light of his Canal Zone nativity, flared up again with the posting of this piece by Jack Chin (along with this report by Adam Liptak).  Chin persuasively documents why McCain wasn’t a citizen at birth.  He would have been had he been born anywhere else in the world, including a hundred yards across the Canal Zone border in Panama.  The legislative fluke was fixed on a retroactive basis in 1937 (to extend citizenship at birth to children born in the Canal zone after 1904 to U.S. citizen parents) but McCain was born in 1936.  The history is a fascinating one, a case study in citizenship’s traumas of race and empire.  Jack is to be congratulated for having unearthed this material.

The essay is less persuasive on the consequences of its findings.  "[T]o inaugurate a President in January, 2009 in open violation of the Constitution’s terms risks national trauma," writes Chin.  "It would be a grim moment in history if the very oath to ‘preserve, protect and defend the Constitution’ that made that person President was also a falsehood that defied the document."

I don’t think so.  McCain’s inauguration might be a grim moment but not for any reasons having to do with his birthplace.  Nobody’s going to let a statutory blip upset the applecart of a presidential election; as University of Baltimore lawprof Michael Myerson concludes in today’s op-ed, "ambiguous constitutional language should not be interpreted to deprive Americans of the right to vote for children of their fellow citizens who, by happenstance or due to their parents’ military obligations, chance to be born overseas."  The US Senate, the team of Larry Tribe and Ted Olson, the New York Times, and McCain’s opponent are all on board affirming his eligibility. 

That’s a consensus of constitutional magnitude.  We have an interpretive practice trumping legal text, without the legitimation of a ruling from the courts.  It’s a terrific example of how the letter of the law only gets you so far.   

There is one book that I have my classes in international business as well as public international law both read (actually, I read it aloud to them and later give them a pop quiz), If You Give a Mouse a Cookie.  It is the single finest book on incentives and moral hazard available, I believe:

If you give a mouse a cookie, he’s going to ask for a glass of milk.

And it doesn’t stop there, of course. Reward behavior and you’ll get more of it.

The following is a guest post by Aaron Zelinksy, a member of the Yale Law School Class of 2010.

Wednesday marked the historic transfer of Israeli and Hezbollah prisoners at the Lebanese border. Ban Ki-moon, Secretary-General of the United Nations, proclaimed that he was “very much encouraged by the exchange of prisoners” and that he hoped it would be the “beginning of many to come.”

Unfortunately, Secretary Ban is wrong. Wednesday’s exchange marked a sad day for Israel, the United Nations, and the international rule of law. There was nothing encouraging about it. Rather, the scene at Rosh Hanikra symbolizes an abject failure of the international system, and undermines the power and credibility of Secretary Ban and the United Nations.

Israel was presented with a heartbreaking decision it never should have faced: whether to exchange live terrorists for her kidnapped soldiers’ bodies…

It makes no sense.  Israel has traded five brutal militants for the bodies of two dead soldiers and the assorted body parts of other Israeli soldiers.  I am in Israel now teaching with a Whittier/Pepperdine study abroad program and coverage of the prisoner exchange is ubiquitous.  I attended a special class session with our students of a presentation by Major Aharon Mor, an Israel Defense Force spokesman, to try to understand the logic.  But it fails me.  When asked why Israel would make this trade, Mor quoted his superiors as saying, "We have a responsibility for all of our soldiers, those who are alive and those who are dead."  But it is patently obvious that if Israel will exchange the likes of Samir Kuntar for the bodies of soldiers, then this plays directly into the hands of Israel’s enemies.  It creates little incentive for Hezbollah to keep other prisoners alive.  And if there is any incentive, it is to up the ante of any future exchange.  If you can get five militants for two bodies, how many can you get for a real live captured soldier?  That will be the question Israel will now face with demands for more prisoners in exchange for Gilad Shalit, who is being held in Gaza.  Hamas is demanding "thousands of prisoners" in exchange for Shalit.   

In an editorial in the Jerusalem Post today, Herb Keinon writes that "no other country in the world would have made such a deal."  He argues that the exchange really is about the Holocaust and the the communal obligation of doing everything possible to protect a Jew in danger.  But in reality it only encourages Israel’s enemies to place Israeli soldier’s in greater danger.  This asymmetrical exchange emboldens Israel’s enemies and makes Israel appear to be a weak negotiator.  It just makes no sense.

Geoff Manaugh of BLDGBLOG, has up two posts on sovereignty and geography. Quoting from Neal Ascherson, one post begins:

There "may or may not have been," he writes, "something called the ‘Akwizgran Discrepancy’." It’s now just "a forgotten thread of diplomatic folklore."

(Ascherson, by the way, is the author of Black Sea, an excellent history of the region.)

The discrepancy may have been a small plot of land bordered by Belgium, Germany, and the Netherlands that was unclaimed by any state.  No one argued that it was its own country; it was just a little bit of land outside of the system of sovereign states. Referring to an article by Ascherson, Manuagh explains…

It looks like Duncan’s analysis  of the potential problem in the Betancourt hostage rescure was on target. Bloomberg reports:

A Colombia soldier wore a Red Cross emblem during the rescue of 15 hostages earlier this month, President Alvaro Uribe said.

Uribe, who apologized for the use of the symbol, said the move wasn’t sanctioned by the government and the soldier did it because he feared for his life.

In a both metaphorical and literal last gasp effort, Mexico has won an "indication of provisional measures" from the International Court of Justice ordering that the United States (and Texas in particular) take all necessary measures to stop the pending executions of Mexican nationals.

The United States of America shall take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the Request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration …

The basic idea here is that: 1) the ICJ judgment requires the U.S. to provide "review and reconsideration" and the U.S. basically has admitted that it has not done so. 2) the ICJ therefore is demanding that the U.S. stop the executions until it has given review and reconsideration, or more precisely, until the ICJ can examine more closely whether or not review and reconsideration needs to be provided. 

Here’s a surprise — China opposes indicting Bashir:

China’s Foreign Ministry spokesman Liu Jianchao said Beijing maintains friendly relations with Sudan and is deeply concerned and worried about the charges.

He says the situation in the Darfur region is at a sensitive and critical moment. He says China hopes all sides can resolve their differences through consultation and avoid adding complications that could interfere with or harm the atmosphere of cooperation.

[snip]

Liu says China is consulting with other U.N. Security Council members to see if the court could be blocked from issuing a warrant for Mr. Bashir.

It’s particularly ironic that China wants the Security Council to intervene, given the BBC report this week that Beijing has been systematically violating the Council’s arms embargo on Darfur…

This is a fascinating story: the State Department, the Iranian government, and the NBA have joined forces to arrange for the Iranian men’s basketball team to train and play next week against NBA teams in Salt Lake City:

Iran will take part in the Rocky Mountain Revue, the Utah-hosted summer league and will play four games. The team will also observe NBA team practices and talk to players and coaches about basketball.

"In an increasingly turbulent world, it is rewarding to bring people together to celebrate teamwork, discipline and respectful competition on the court," NBA commissioner David Stern said in a statement. "The NBA embraces the opportunity to welcome the Basketball Federation of Iran and the Iranian Olympic team in a demonstration of how something as simple as a game of basketball can promote understanding."

Iran will play two games against the NBA D-League Ambassadors, a team consisting of 10 players who competed in the developmental league last season, on July 17 and July 20 at The Factory — the Utah Flash’s practice facility. Iran will also face a Dallas Mavericks team on July 19 and a Utah Jazz squad on July 21, with both games at Salt Lake Community College.

The arrangement obviously has political implications…

Okay, I really, really hate the Wallabies.  But not this much:

The United States planned to gas Australian troops in experiments with two of the most lethal nerve gases ever devised, newly declassified files have revealed.

Previously top secret documents have shown that even as the world was outlawing chemical weapons at the height of the Cold War, Washington sought Canberra’s permission to test sarin and VX gas on diggers in remote Queensland.

The documents, shown on Channel Nine’s Sunday programme yesterday, indicate that US military scientists wanted to bomb and spray 200 "mainly Australian" troops with the deadly nerve agents in the 1960s.

Shaken by the request, the plan was rejected by Liberal Prime Minister Harold Holt, despite Canberra’s deep concern to keep the US engaged in the western Pacific.

[snip]

Sarin and VX gas are now classified as weapons of mass destruction and are outlawed under the 1993 Chemical Weapons Convention.

Kind of puts a new spin on Oz’s baffling — and domestically unpopular — decision to support the US invasion of Iraq…

I am thrilled to report that our friend and colleague Janet Levit has been named the new dean at the University of Tulsa Law School.  Janet is an accomplished international law scholar and has proven her considerable management skills as the interim dean at Tulsa since last fall.  She is also an alum of Opinio Juris, and a warm and supportive colleague and collaborator.  I have no doubt that she will achieve the ambitious goals she has set out for the school.  She joins a growing roster of internationalists who have taken the helm at law schools in the past few years — including Paul Berman who moves to the deanship at Arizona State University Law School this summer, and David Wippman who is the new dean at the University of Minnesota Law School.  Congratulations to Janet on her appointment!  Here is the full press release from Tulsa.

Stranger things have happened.  The Carnegie Council’s Ethics & International Affairs, a quarterly journal with consistently thoughtful interdisciplinary material, has this essay in its summer issue by Campbell Craig on the resurgence of the idea of world government. 

Craig finds three strands in recent thinking on the question, which basically boil down to why, how and and whether.  The ”why’ will be taken for granted by most, or at least most who would be on Carnegie’s subscription list.  One might take issue with the continuing focus on the danger of nuclear annihilation as a collective action problem (reflecting more the security-studies backgrounds of today’s top political scientists — how many cut their teeth on environmental issues? — than what’s happening on the ground).  But how many of us now question the need for global responses of some description to problems of global dimension. 

The "how" is where things get more interesting.  Craig describes the intellectual split between the global governance crowd (which sees the virtue of decentralized liberal institutions and an incremental accumulation of institutional power at the international level) and those who are looking more at a world state on a national model.  

Among the latter group — the New One-Worlders — are poli sci heavyweights Alex Wendt, Daniel Deudney, and David Held (see here, here, and here).  That means it has to be taken seriously, at least among academics.  My sense is that international law specialists (myself included) are more inclined to a global governance model (with the notable exceptions of Richard Falk and Andrew Strauss). 

One explanation for this emerging disciplinary divide is that the IR folks, true to their Realist grandfathers, are still more sensitive to Great Power projection.  If you don’t have an singular and authoritative institutional channel at the top, Craig explains, powerful states will still deploy their ample resources to upset equlibria achieved in decentralized structures.  That’s a plausible explanation for the disciplinary tendency, which of course doesn’t necessarily validate the argument itself.  IL scholars, by contrast, work from the premise of sovereign equality in which power is only uncomfortably introduced as a variable.

But international legal scholars may also better understand the enormity of establishing a world state — falling out, in other words, on the "whether".  IR has always claimed the higher ground of empirical understanding (largely because it does foreground power relationships).  Might it be that on this score the IR scholars are working in an alternate, and not very plausible, reality?  Craig deploys the EU as a historical argument supporting the possibility of world government.  That’s not much to work with, except maybe for thinking about the 23rd century. 

It may now be respectable to utter the words "world government" beyond the halls of World Federalist Movement gatherings.  But I think IL is showing the better instincts on its immediate prospects.

Senators Arlen Specter and Joe Lieberman have a joint commentary in yesterday’s Wall Street Journal (July 14, 2008), promoting a federal law to discourage so-called “libel tourism.” Libel tourism refers to the practice of a plaintiff suing for libel in a plaintiff-friendly jurisdiction – i.e., the UK – and then seeking to have the judgment enforced in US and other courts. It is a tactic adopted several times in the last few years by wealthy Saudi businessmen and aimed at what is, under US law, not just generally “First Amendment protected speech,” but speech that under any serious moral view ought to be part of public debate in a democratic society. (I think there have been some Opinio Juris posts on this in the past.)

Even the threat of litigation has been enough to cause presses such as Cambridge University Press not only to agree to pulp scholarly books, but to write to libraries calling for them to take the books off the shelves. As Specter and Lieberman note:

“English courts have become a popular destination for libel suits against American authors. In 2003, U.S. scholar Rachel Ehrenfeld asserted in her book, “Funding Evil: How Terrorism Is Financed and How to Stop It,” that Saudi banker Khalid Bin Mahfouz helped fund Osama bin Laden. The book was published in the U.S. by a U.S. company. But 23 copies were bought online by English residents, so English courts permitted the Saudi to file a libel suit there.

“Ms. Ehrenfeld did not appear in court, so Mr. Bin Mahfouz won a $250,000 default judgment against her. He has filed or threatened to file at least 30 other suits in England.

“Fear of a similar lawsuit forced Random House U.K. in 2004 to cancel publication of “House of Bush, House of Saud,” a best seller in the U.S. that was written by an American author. In 2007, the threat of a lawsuit compelled Cambridge University Press to apologize and destroy all available copies of “Alms for Jihad,” a book on terrorism funding by American authors. The publisher even sent letters to libraries demanding that they destroy their copies, though some refused to do so.”

For those who take free expression values seriously, as well as the ability to foster robust debate in the United States, the ability of foreign plaintiffs

I appreciate Kevin’s thoughtful and evenhanded assessment of the ICC Prosecutor’s complex decision to seek the arrest of Sudan’s president.  There are indeed good arguments both for and against the ICC Prosecutor’s move.

I’m torn myself.  I have articulated many times before my skepticism of the ICC’s effectiveness in helping to end the violence or even to bring justice for Darfur. I stand by my view that the ICC referral is basically the Security Council’s effort to deflect further action, and the fact that the ICC investigation cannot in any way help the peace process (at least in the short term).  But I can understand the argument Kevin cites below from "Enough": How could things get any worse?

Still, by indicting a sitting Head of State, the ICC is essentially seeking regime change…

  I missed Bastille Day celebrations in Paris on Monday – got on a plane back to DC early in the morning.  But let me extend my best wishes on Bastille Day to all our French readers.  And everyone else, too. 

My friend BP, a magazine editor in France, commented at dinner the other night that the thing about America and France is their sometime rivalries arise in large part from the overlap of their universalizing moral impulses and the fact that the content of that universalizing morality has deep overlaps and yet deep differences.  (He said all this with far more elegance and erudition than I am conveying here.)  I asked what those overlaps and differences were.  He said, well, the fact that in America, separation of church and state is about religious pluralism, whereas in France it is about clericalism and anti-clericalism; that the Revolution in France plumbed all the extremes, in a way that the American secession never did; that the notion of modern France is not just about justice and morality in the American sense but, following de Gaulle, a certain notion of civic honor for its own sake, une certaine idée de la France. 

Someone else at that dinner added that the rise of the reputations of Camus (a revival of whose play, Les Justes, I managed see in an excellent production at the Lucernaire Theatre in Paris, despite my horrible French) and Aron in France itself had drawn French political culture to a much greater awareness of the values of the Revolution not as revolutionary values but, today, as values to be protected and defended.  Much closer, she said, to (drum roll) … Burke’s Reflections on the Revolution in France.   What values, I asked?  Liberte, to start with, was the reply. 

Very well.  In honor of our shared tradition of liberty, then, my Bastille Day offering is a selection from the poetry journal of the Resistance fighter and Surrealist poet Rene Char, the estimable Leaves of Hypnos, written sometime most likely in 1943:

A tous les repas pris en commun, nous invitons la liberte a s’asseior.  La place demeure vide mais le courvert reste mis.

(From the Cid Corman translation:  At all the meals taken in common, we invite freedom to have a seat.  Its place remains empty but it stays set.) 

***

And finally, of course, La Marseillaise, in not one but three versions … Mireille Mathieu leading the crowd at Sarkozy’s victory, Segolene leading her supporters on the left, and …  

Casablanca.  Vive la France.

My thanks for Chris’ generous introduction, and I want to say how honored I am to join the team at Opinio Juris.  I have followed it closely from its first days, and have watched with admiration as it has grown into the amazing blog it is today.  The migration to the new format is just a part of that - and I missed all the heavy lifting on putting together the new site while arriving just in time for the benefits!  I value the folks here at Opinio Juris, and I value this blog’s readers.  I value the insights, breadth, depth, and learning at Opinio Juris, and the intelligent, civil tone it unflaggingly offers.  I am particularly impressed with the emphasis on books, discussion of substantive articles, special discussions such as the one with John Bellinger a while back.  I think the partnership with Oxford will serve the scholarly agenda of this blog well, and likewise the law review discussions.

My interests range pretty widely, and I treat "international law" as a broad category.  I hope to raise issues related to international development, for example, as well as international business, finance, and economics; my day job is teaching international economic law.  My primary interests are international business transactions and finance (rather than trade or arbitration), often applied to international development areas such as development finance, microfinance, and so on.  But I am also very interested in human rights, laws of war, terrorism and political violence, ethics of war and just war theory; I have been writing for a long time in these areas, going back to my days working for Human Rights Watch and other human rights organizations and my student days with Henry Steiner’s human rights program at Harvard.  

In addition, I have a strong interest in questions of global governance, global civil society, and the social theory of the international political system and, in more specifically legal terms, nonprofit law and governance, especially of international NGOs.  More recently I have been trying to understand the ‘inside’ of the evolution of international legal scholarship, in relation to broader movements in the legal academy.  And let us not forget robot soldiers and the ethical and legal questions posed by the (slowly) developing technology of battlefield robotics!

It probably won’t take too long for people to notice that I am (roughly speaking) a conservative, in American terms and at least within academia, on many of these issues - a democratic sovereigntist is more accurate.  My skepticism about significant chunks of the international law program of liberal international global governance is more than just realist skepticism about ideals outstripping real world possibilities; I am interesting in defending and articulating a normative alternative based around democratic sovereigns.  In that regard, I hope to be able to engage productively with others on this blog, and with commentators, who have a different sense of the world.

In other parts of my scholarly life, I am a fellow with the Hoover Institution and a member of its task force on national security and law.  I am active on the editorial board of the Journal of Terrorism and Political Violence - a scholarly interest of mine that long predates 9-11, and goes back to the 1980s.  I am also returning to activity with the critical theory journal Telos.  In pro bono activities, I chair the board of a nonprofit development venture fund, the Media Development Loan Fund, that specializes in financial assistance independent media around the world.  I also chair the board of the US wing of the Rift Valley Institute, a nonprofit that deals with Sudan and other parts of the Rift Valley (not on account of my experience in Africa, which is zero, but as a lawyer in nonprofit law and governance issues).  I occasionally write for the Times Literary Supplement and some other reviews and publications - Pajamas Media, Weekly Standard, Wall Street Journal, New York Times Magazine, Financial Times, and the Revista de Libros (Madrid) - and I am very pleased to say that I have recently become political science editor for the Revista de Libros.

This is a wonderful blog, and I am proud to join it.  I will keep my personal blog, Kenneth Anderson’s Law of War and Just War Theory Blog, going for stuff that does not really fit here, as well as for announcing things that I am writing and publishing.  I look forward to engaging with all of you, and my thanks to everyone at Opinio Juris for inviting me aboard.

In conjunction with the announcement of our new partnership with Oxford University Press, Opinio Juris is pleased to roll out our redesigned site. A lot of hard work has gone into the redesign and we want to thank Seth Elalouf of Spacesuit Group Design for his technical and design support during our migration to a new hosting platform and graphical interface, and Amy Moore for her invaluable assistance troubleshooting links and content. The entire Opinio Juris crew also thanks Ninell Silberberg and Niamh Cunningham at Oxford University Press for their tremendous support and dedication to this project…

The Sudanese government is not very happy with the Prosecutor’s decision to indict Bashir.  Indeed, Sudan’s ambassador to the UN has said that the government intends to ask the Security Council to block the prosecution, describing any attempt to arrest Bashir as "an act of war."

Such belligerent rhetoric is expected from such a belligerent regime.  Many opponents of the Sudanese government, however, have expressed a similar desire for the Security Council to intervene in the situation.  It is thus useful, I think, to remind everyone that the Security Council’s authority over the ICC is actually quite limited.

First, although the Security Council referred the situation in Darfur to the ICC, no provision in the Rome Statute allows the Council to "unrefer" the situation.  And rightfully so: if the Security Council could take a situation away from the ICC whenever it disagreed with the Prosecutor’s investigative strategy or a decision by the Pre-Trial Chamber, the Court would be little more than an arm of the UN, fatally undermining the Court’s independence.

Second, although Article 16 of the Rome Statute permits the Security Council to defer a prosecution, perhaps indefinitely, the Article was designed to make it very difficult for the Council to do so.  Here is the text of the Article:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

The genius of Article 16 is that deferring an investigation or prosecution requires positive action by the Security Council.  In other words, the Council cannot pass a deferral resolution unless there are nine votes in favor of the deferral and none of the permanent members of the Council veto it.  Any member of P-5, therefore, can intervene to prevent the Council from ending an ICC investigation or prosecution.

This limitation on the Security Council’s authority over the ICC was deliberately included in the Rome Statute.  The ILC’s draft Articles would have eliminated the Court’s jurisdiction over any matter that was being considered by the Security Council unless the Council agreed otherwise.  That formulation would have given the P-5 — including ICC opponents like the US, Russia, and China — effective control over the Court’s jurisdiction: to take a situation away from the Court, they would have needed only to add it to the Council’s agenda and then veto any resolution to permit the Court’s investigation to continue.

The Security Council, in short, can prevent the ICC from prosecuting Bashir.  But it will only be able to do so if nine of its non-permanent members and all of its permanent members think such a drastic step is warranted.  Such (near) unanimity is unlikely, given that seven of the Council’s 10 non-permanent members (Belgium, Burkina Faso, Costa Rica, Croatia, Italy, Panama, South Africa) and two of the permanent members (France and the UK) are also members of the Court.  It is particularly difficult to imagine France permitting the Security Council to so dramatically undermine the ICC’s independence.

Stay tuned!

I have been going back-and-forth with myself about the wisdom of indicting Bashir for genocide.  I continue to believe that the move is a risky one in the short term, given the likelihood that the Sudanese government will respond to the indictment with violence against the peacekeepers and the humanitarian workers in the country.   Nevertheless, I find the following defense of the Prosecutor’s move by Enough, a project associated with the fantastic Center for American Progress, to be very persuasive:

Skeptics warn that the ICC’s action against Bashir may cause Sudan to implode. But hundreds of thousands in Darfur have been killed or displaced by violence and its fallout. The UN-led peacekeeping effort remains largely stillborn, with seven peacekeepers killed in an ambush on July 8. Peace talks have been a dead-end, and tensions between North-South in Sudan threaten to unravel an earlier peace deal and could hasten Sudan’s disintegration. This is not a status quo that we should worry about upsetting with an arrest warrant.

On the contrary, the only way by which the fundamental dynamics of conflict in Sudan will change is by introducing accountability. President Bashir’s behavior in Darfur was predictably consistent with the way he presided over a war strategy in southern Sudan that led to seven times as many deaths. In waging its conflicts, the Sudanese government has repeatedly employed a strategy of divide-and-destroy at multiple levels of society, arming neighboring militias against each other to create a flimsy sense of plausible deniability that they were not directing the violence. No one on the ground had any illusion about the Sudanese government’s criminal behavior, and neither should the international community. Human rights violations committed by rebels in Darfur and the South should not distract attention from the culpability of the Sudanese government in deliberately directing the great majority of these atrocities.

[snip]

The case against Bashir introduces three new elements into the Darfur equation: leverage, deterrence, and protection. How they are utilized by the international community will help determine whether or not a solution for Darfur is at hand. Until now, the UN Security Council and powerful states have done little in the way of building direct leverage that can be utilized in support of either peace talks or protecting civilians on the ground. Although the ICC remains independent of the Security Council, there are means by which its investigations can be suspended or its targets given security assurances in exchange for a binding exile.  Bashir now must understand that his fate is tied to a peaceful resolution of the Darfur crisis, a sensible peace deal, and deployment of the UN-led protection force. After Moreno-Ocampo presents his case, the ICC judges will most likely take several months to make a decision on issuing a warrant for arrest. During this time the Security Council should vigorously build leverage in support of a peace deal and deployment of peacekeepers. Equally, the Security Council needs to understand that any effort to derail justice or interfere with the chief Prosecutor’s work would be a disaster.

Deterrence is also a positive new potential factor. Proper follow up to Bashir’s warrant could deter future perpetrators of crimes against humanity in Sudan.

Least discussed but potentially most important are the implications the arrest warrant will have for protecting civilians. The record shows over the last two decades that General Bashir’s regime has backed off its most deadly war strategies when international pressure has been well coordinated and at its high points. When the spotlight was on the regime’s use of food as a weapon, it relented. When the pressure focused on ending bombing of civilians in the South, it stopped. When the temperature went up over the regime’s facilitation of a resumption of slavery, it abandoned its strategy and slave-raiding ended. Putting the spotlight on Bashir provides a significant point of pressure that if backed by key governments and the UN Security Council could lead to real protection for the civilian population.

Enough also points out…

I am grateful to be associated with this blog in so many ways: personally, because of my wonderful co-bloggers and our many invited guests; intellectually, because the blog allows me to try out new ideas and forces me to keep up with what is happening in the world; and — yes — professionally, because the blog exposes my ideas, often for better and sometimes for worse, to a far larger audience than any academic publication ever could.

I am most grateful, however, for you, our faithful readers. I never cease to be amazed at what a truly global community Opinio Juris readers form — a community that we hope will continue to expand in the future. Here, for example, is a list of where our visitors in just the past two hours are located:

Conakry, Guinea
Cape Town, South Africa
Uganda
Sudan
Qiryat Ono, Israel
Tehran, Iran
New Delhi, India
Bangkok, Thailand
Hong Kong
South Korea
Tokyo, Japan
Quezon City, Phillippines
Malaysia
Singapore
Jakarta, Indonesia
Apo, Armed Forces Europe, USA
Belmopan, Belize
Halifax, Canada
Hope Valley, Australia
Bucharest, Romania
Vilnius, Lithuania
Sarajevo, Bosnia-Herzegovina
Belgrade, Serbia
Buje, Croatia
Pizen, Czech Republic
Portici, Italy
Klagenfurt, Austria
Zurich, Switzerland
Heidelberg, Germany
Copenhagen, Denmark
Stockholm, Sweden
Utrecht, Netherlands
Brussels, Belgium
Paris, France
Glasgow, Scotland
Dublin, Ireland
London, England
Grand Rapids, Michigan, USA

That’s a remarkable list, and I think I can speak for all of us when I say to you, no matter where you are — thanks for your support.

Oxford University Press and Opinio Juris have teamed up to re-launch this widely read and influential blog. The new site continues to provide the insight, debate and analysis that you’re used to, but has been enhanced with an easy-to-use interface and additional features.

We invite you to re-discover Opinio Juris, with its contributions from leaders in the field and thought-provoking coverage of developments in international law and politics. By clicking through to the book discussion area, you can read along with the Oxford Book Club each month, where the OJ Editorial team hand-pick some of the best new scholarship, with the goal of opening up debate and promoting the exchange of ideas. Look also for posts from some of the most distinguished scholars on topical issues ranging from international trade to human rights and international terrorism. Further, OJ readers are entitled to a 20% discount on featured titles from Oxford.

We’re proud to be partnering with a group with whom we share an enthusiasm for producing high quality commentary and analysis as well as reporting you can trust. Our thanks go to Peggy, Chris, Kevin, to our authors, OUP staff and the entire OJ team for working with together on this exciting new endeavor.

We hope that you enjoy the new design of the Opinio Juris site and we look forward to reading your posts and comments.

Sarah Ultsch
Oxford University Press
July 2008

Besides announcing our new partnership with Oxford University Press, and debuting our new-and-improved website, we are also pleased to welcome Kenneth Anderson of American University’s Washington College of Law as the newest member on the Opinio Juris team of bloggers.

Ken should be well-known to our readers. He is a scholar in areas such as international humanitarian law, international finance, and other areas; the author of the Law of War and Just War Legal Theory Blog (that site will now be the home for his non-international law blogging); a wide-ranging essayist; and a recent guest-blogger here at Opinio Juris. Ken was one of the first people who encouraged us when we started Opinio Juris and we are so very happy that he is now one of our colleagues.

Welcome, Ken!

We greatly appreciate all of the wonderful postings this week on America Between the Wars and thank all of those who participated. We wanted to conclude by touching on two of the issues raised in the discussion. One is the question Matt Waxman raised concerning the future of the U.S. political debate about democracy promotion. The other is Roger Alford’s recognition of the continuities between the Clinton and George W. Bush administrations, which also implies speculating about policy continuities looking forward (a point raised by Ken Anderson who was kind enough to post from his trip to Paris).

Matt is quite right to wonder about the future of democracy promotion, especially given the political taint it has assumed as Bush has talked about the so-called “freedom agenda.” Many Democratic politicians and activists seem to forget that this was once their issue, not only in the 1992 campaign and during the Clinton years, but from Wilson through Roosevelt and Truman to JFK. Too many now see democracy promotion as a George W. Bush invention, and a number of people we interviewed, for example, Madeleine Albright, are quite upset that the war in Iraq has given democracy promotion such a bad name for those on the political left. In the early 1990s, there was also the euphoria associated with the collapse of communism, and the flourishing of democracy not just in Central and Eastern Europe, but in countries such as Mongolia and Namibia. As Matt notes, the international trends are less favorable today.

If the Democrats prevail in November, winning both the presidency and larger majorities in Congress (as polls now suggest), some will be tempted to adopt an “Anything but Bush” attitude as the Bush team did with Clinton policies in 2001. We hope they will avoid doing so – especially when it concerns democracy promotion and the place of liberal values in American foreign policy. To be sure, we must learn from Bush’s hubris and failures: there are far better ways to promote democracy other than overthrowing regimes. And while it is hard to see how a Democrat could define a progressive foreign policy that was purely realist in outlook, it will be tougher to raise democracy promotion as a central concern in this political environment. Matt is right to point to the institutional deficiencies in U.S. foreign policy in helping to do build civil society elsewhere, but it is also politically difficult because unlike holding elections, the institution-building takes time, and that means clear payoffs are way down the road, often after administrations have left office (witness Jimmy Carter’s efforts in Latin America, for example).

As Matt notes, McCain has raised the notion of a League of Democracies (which seems to build on the Clinton administration’s Community of Democracies). The League, however, seems largely focused on having countries with shared values come together to deal with common challenges. So far, at least, it seems not as focused on promoting democracy where it doesn’t exist. But if it were to get off the ground (and a number of top Obama advisers also have supported similar ideas), then democracy promotion might be an obvious agenda item for such an institution.

Roger is quite right to notice the continuities between the Clinton and George W. Bush administrations when it comes to the challenges of wielding American leverage and might. The Clinton team was not happy about leaving Saddam Hussein in power. And the United States did go to war in 1999 over Kosovo without U.N. authorization. Continuity across administrations since the end of the Cold War is a big theme of our book, and we do believe that on many of these questions there will be continuities after January 2009, as Ken’s discussions in Paris also indicate.

For example, it’s not clear how much emphasis there will be on humanitarian intervention in the next administration given that the wars in Iraq and Afghanistan will be front and center for some time. But certainly if the next president believes that the use of force is necessary somewhere in the world (whether for humanitarian reasons or to meet a security threat), and if he believes that Russia and China will not support such action, then he is likely to go forward anyway, either as Clinton did under NATO auspices in 1999 or as Bush did with his “coalition of the willing” in 2003. And that certainly raises questions about the future of international law and the role of the United Nations in legitimizing the use of force.

In this sense, we’ve come full circle, which is exactly what we set out to do in this book. Our belief is that instead of dismissing the years we describe as a meaningless “holiday from history,” we can learn valuable lessons from this recent past, becoming better informed about our current debates, and hopefully making better choices in the future. As America grapples with the complexities of the 21st century, struggling to find the right balance between its power, responsibilities, and ambitions in a globalizing world, the lessons and legacies of the years America between the wars, from 11/9 to 9/11, will endure.

Shameless plug alert: I have posted a new essay on SSRN, “The Cognitive Psychology of Mens Rea.” It’s a sequel of sorts to my essay “The Cognitive Psychology of Circumstantial Evidence,” which appeared last year in the Michigan Law Review. Here is the abstract:

“Actus non facit reum nisi mens sit rea” — the act does not make a person guilty unless the mind is also guilty. Few today would disagree with the maxim; the criminal law has long since rejected the idea that causing harm should be criminal regardless of the defendant’s subjective culpability. Still, the maxim begs a critical question: can jurors accurately determine whether the defendant acted with the requisite guilty mind?

Given the centrality of mens rea to criminal responsibility, we would expect legal scholars to have provided a persuasive answer to this question. Unfortunately, nothing could be further from the truth. Most scholars simply presume that jurors can mindread accurately. And those scholars that take mindreading seriously have uniformly adopted common-sense functionalism, a theory of mental-state attribution that is inconsistent with a vast amount of research into the cognitive psychology of mindreading. Common-sense functionalism assumes that a juror can accurately determine a defendant’s mental state through commonsense generalizations about how external circumstances, mental states, and physical behavior are causally related. Research indicates, however, that mindreading is actually a simulation-based, not theory-based, process. When a juror perceives the defendant to be similar to himself, he will mindread through projection, attributing to the defendant the mental state that he would have had in the defendant’s situation. And when the juror perceives the defendant to be dissimilar to himself, he will mindread through prototyping, inferring the defendant’s mental state from the degree of correspondence between the defendant’s act and his pre-existing conception of what the typical crime or defense of that type looks like.

This goal of this essay is to provide a comprehensive — though admittedly speculative — explanation of how jurors use projection and prototyping to make mental-state attributions in criminal cases. The first two sections explain why jurors are unlikely to use a functionalist method in a case that focuses on the defendant’s mens rea. The next three sections introduce projection and prototyping, describe the evidence that jurors actually use them to make mental-state determinations, and discuss the cognitive mechanism — perceived similarity between juror and defendant — that determines which one a juror will use in a particular case. The final two sections explain why projection and prototyping are likely to result in inaccurate mental-state determinations and discuss debiasing techniques that may make them more accurate.

As always, comments would be welcome — especially in time for fall law-review submissions…

Before I offer my initial thoughts about the “Between the Wars,” it is only fair that I join Ken in disclosing my own biases. I joined the Foreign Service the year before the fall of the Berlin Wall and left the State Department at the beginning of the second Clinton term. My final post, fittingly enough, was in Berlin. In Washington, I served two stints on the Seventh Floor of the State Department (the location of senior management for the unitiated): one at the Operations Center (the 24-hour crisis center at State) during the last year of the George H.W. Bush administration and another as a Special Assistant to Warren Christopher (beginning on “day one” of the Clinton administration). You could say my service spanned the “interwar” years Chollet and Goldgeier discuss in their book. I was thus particularly interested to read a history of the events that I experienced from inside State, and also to see how the authors portrayed certain key players. (I had to chuckle at their characterization of the lanky southerner Bob Oakley –for whom I worked when he was Ambassador to Pakistan — as “the rugged [!]career diplomat” (p. 77).)

As with any history that tries to cover as many people and events as this ambitious book does, there is much that is lost – both in terms of events and nuance – to space constraints. I don’t mean this as a criticism of the authors’ considerable achievement in covering as much as they do in the space of one book. A thorough diplomatic history of the period, even one focused only on U.S. diplomacy, would require much more breadth and depth than the authors are constrained to here, including much more discussion of the many counterparts to the U.S. policy makers in foreign capitals and within international organizations. That quibble aside, the authors do a terrific job of capturuing what was truly remarkable about the years 1989-2001: the magnitude and breakneck speed of events. (Not suprisingly, perhaps, they both spent time on the Clinton foreign policy team.)

For those who lived through the early 1990s inside the foreign policy machinery, as the book accurately captures, the pace of events was simply breathtaking. The end of the Warsaw Pact, the dissolution of the USSR and the creation of a dozen or so new states in the space of just one year (1991) meant not only thinking about the “big ideas,” but, perhaps more important – and more daunting — handling the details: establishing new embassies; training diplomats; forging new military partnerships and relationships; rethinking our foreign humanitarian assistance; expanding the Peace Corps into states previously off limits, etc. On the international law side, international criminal law went from an historical artifact to a living legal regime; trade regimes created new and more robust dispute resolution mechanisms. The 1990s witnessed explosive growth, both in membership and missions, of the various international and regional economic, military, political and legal institutions – WTO, NAFTA, EU, APEC, ICTY, ICTR (and later the ICC) All these shifts required fundamental reorganization of the mechanics of our national security apparatus and rethinking about the spaces left open by vacuum of Cold War politics in a range of geopolitical and economic contexts. This work of bureacratic restructuring started under the Bush administration, picked up pace during the Clinton years and continued thorughout the current administration.

One might ask whether the bureaucracy matters and how it is connected to the intellectual history of the period. I believe it matters quite a bit, and will be of central importance to the next administration. It is one thing, for example, to present a theory of “soft power” as Joe Nye has done. It is quite another to figure out how to turn theory into action, to fund it, manage it and keep tabs on whether its exercise has achieved the desired results. (If we ‘ve learned anything from the disasters of the neocons, surely it is that competence matters.) The same, of course, can be said of change to the intelligence and military bureaucracies. Chollet and Goldgeier briefly discuss the challenges the post-Cold War changes brought to the CIA (pp. 261 -262), but largely gloss over the diplomatic restructuring debates of the early 1990s, including, e.g., the reintegration of USIA, USAID and ACDA into State. Execution – including the myriad little things — of diplomacy matters; errors in execution are not unique to intelligence and military operations.

One of the authors’ central claims [Myth Five] is that the post-11/9 era was not amenable to one unifying theory akin to containment. I strongly agree. Indeed, as the authors note, this idea that there is no simplifying (in Kennan’s words) “bumper sticker” to define the post-Cold War era has been kicking around since the day the Berlin Wall fell. (Perhaps the myth of a unifying theme appealed only to the vanity of a few foreign policy wonks!) But if that is true, why does the book keep circling back to the idea that either Bush I or Clinton “failed” in defining this new era and spend so much time on the public intellectuals and journalists who were so keen on putting their own label on this not-to-be-labeled era? (see, e.g., p. 27“[Bush] was unable to translate [the End of the Cold War and the Persian Gulf War] momentous achievements into a direction for his country….no one had assumed Kennan’s mantle as the country’s grand strategist.” p. 84: “With a disastrous first year in office, Clinton had lost the initiative to define the era.”) Put differently, why were many of the players portrayed in the book so obsessed with coming up with a label? If labels matter, as many in Washington clearly believe they do, why do they matter? (I have my own view on this, but am curious to hear what the authors think.) I wonder whether the book’s focus on the inside-the-beltway political and foreign policy establishment misses some of the broader trends of the 1990s that were occurring outside of Washington and beyond U.S. borders, but which nonetheless have had profound impact on our current foreign policy posture. More on that in my next post.

This superb book is must-reading for students of contemporary foreign policy and for anyone hoping to be part of the incoming foreign policy team of the next president.



America Between the Wars is a book about ideas – the foreign policy and national security ideas that presidential administrations bring with them into office, and the competition of ideas within administrations and between administrations and other actors at home and abroad. One of the most interesting themes is the continuity of debates between and within parties about the purpose of American power (such as protecting U.S. interests versus exporting democratic values) and the source of that power (accumulating military and economic advantage versus harnessing soft-power influence).



But America Between the Wars is also about politics and institutional bureaucracy (see, e.g., military resistance to Clinton’s proposals regarding homosexuality in the military), as well as the unexpected crises that can overwhelm decision making and pull policy agendas off track (to take it up to the present, who would have expected that the George W. Bush Administration originally intent on “no nation-building”, especially by the U.S. military which it also planned to modernize and streamline, would end with 160,000 U.S. troops rebuiling Afghanistan and Iraq?).



When it comes to international law and diplomacy, both Senators Obama and McCain have promised a set of ideas different from the Bush Administration (Obama more so than McCain). Their agendas include a rejuvenated American leadership on issues such as global warming, non-proliferation and detainee treatment, and they both recognize that international legal constraints in these areas can enhance American power in a variety of ways.



But the new president and his administration will have to contend in his first few months with managing wars in Iraq and Afghanistan, a Middle East peace process that’s at best fragile, as well as immediate strategic choices on Iran diplomacy. Those aren’t optional agenda items, and they already fill a plate. And some institutional players, such as the military and the Congress, will have strong views and entrenched positions. And then there are the wildcards (coups, natural disasters, terrorist attacks, domestic political scandals, or something totally new).



I am hopeful and confident that whoever wins in November will keep a restoration of American leadership and credibility on international law near the top of a huge agenda pile (yes, of course, this is not independent of the other issues I just mentioned, but tied tightly into them). But the story Chollet and Goldgeier weave so effectively is cause for caution. It teaches that the power of ideas only goes so far in foreign policy-making. Success or failure of the next presidential term in advancing a new global vision will turn on the White House’s ability to navigate politics, prioritize, cut deals, mediate internal disputes, and ride herd on a vast bureaucracy to ensure implementation. Advisers to the next president would do well to study those parts of the book.

Let us begin by thanking Roger Alford and his colleagues here at Opinio Juris for hosting this conversation about America Between the Wars, as well as Ken Anderson and Matt Waxman, who so kindly agreed to help keep the discussion lively! Since the book was published a month ago we’ve been doing a lot of events and talks, but we really welcome this opportunity to have an in-depth discussion with such a fine group.

Our book tells the story of the struggle to define America’s role in the world between two pivotal dates, which for us serve as bookends to what we describe as the modern interwar years: the day the Berlin Wall fell on November 9, 1989 (or 11/9), and the day of the terrorist attacks of September 11, 2001, which will forever be known as 9/11. In the course of our research for this book, we talked to as many people as we could who had a role in the events of these years – a diverse group from Colin Powell and Newt Gingrich to Madeline Albright and Robert Rubin to Pat Buchanan and Ralph Nader – and our narrative very much reflects the insights and stories that we gleaned from these revealing conversations.

In writing about America from 11/9 to 9/11, we tried to do several things. This book is an intellectual history of the debates between liberals and conservatives (and among factions inside both the political right and left) about the world after the Cold War and America’s role in it. It is also diplomatic history, in that it is a narrative of the major events and key turning points in American foreign policy during these years. And finally, and perhaps most importantly for our readers during an election-year summer, it is a political history of how the politics of national security played out during these years, as liberals and conservatives, Democrats and Republicans, responded to the end of the Cold War and tried to reshape themselves to face the new global landscape. It is impossible to understand this era without seeing the interweaving of the ideas, events, and politics, which we argue very much shaped the history of the past eight years and continues to shape the foreign policy choices McCain and Obama will argue about in the months ahead.

As a way to get things rolling, and hopefully to provoke some debate, we’d like to offer five myths that we believe our story shatters.

Myth 1: When it comes to America’s role in the world, 9/11 changed everything.

Reality: Describing the events of 9/11, President Bush asserted, “All of this was brought upon us in a single day, and night fell on a different world.” With these words, he reinforced a general perception that global politics had changed irrevocably on September 11, 2001. It was a day we will always remember and honor, but the president was articulating an emotional truth – not an analytical one. Just as history did not end in 1989, it did not begin on 9/11.

The tragedy of 9/11 and its aftermath had its origins twelve years earlier, when the world shifted in ways that were incomprehensible at the time. On 11/9 the Berlin Wall fell, and the Cold War was effectively over. That year, the Soviet Union withdrew from Afghanistan, and the former superpower battleground was left unattended until Bill Clinton bombed Al Qaeda training camps there in August 1998 in retaliation for the embassy bombings in Kenya and Tanzania. As we show in the book, by 1998, the Clinton administration believed it was “at war” with Osama bin Laden and his followers, and Clinton told George W. Bush after the 2000 election was decided, “One of the great regrets of my presidency is that I didn’t get him [bin Laden] for you, because I tried.” Of course, conservatives at the time were hardly focused on the threat from Islamic extremism.

But it wasn’t just terrorism. Other national security problems we face today – including failed states and civil wars, the proliferation of weapons of mass destruction, Iran, Iraq, and North Korea – all arose in the years after the collapse of communism.

Myth 2: Our problems began with George W. Bush, and will end when he leaves.

Reality: There is more continuity between Bill Clinton and George W. Bush than partisans on both sides care to admit: Clinton feared Saddam Hussein’s possession of weapons of mass destruction and tried to bring about regime change in Iraq. Bush is now pursuing Clinton-type policies on Iran, North Korea and the Middle East Peace Process. Both bypassed the UN to take military action, and both saw America as “indispensable.” There was continuity from George H.W. Bush to Clinton to George W. Bush – and there will be probably be a surprising degree of continuity after January 2009 regardless of who wins.

Myth 3: Democrats are incompetent at protecting America’s national security.

Reality: While that’s been the conventional wisdom conservatives have peddled for decades, especially at election time, we show that by the end of 2001, the charge rang pretty hollow. When Clinton left office, he had used military force in Iraq and Afghanistan and the Balkans, transformed NATO, and brought China into the World Trade Organization. Democrats used to get defensive when Republicans asserted they knew better how to conduct national security, but those days are over. Just look at how Obama is taking the fight to McCain on national security issues.

In fact, the shoe is on the other foot. Republicans are facing their own “best and the brightest” moment. Just as leading national security Democrats were tarnished by Vietnam, so are many leading Republicans today in the wake of the George Bush presidency. When the George W. Bush team came into office in 2001, many in the press and among the foreign policy elite believed that individuals such as Colin Powell, Dick Cheney, Donald Rumsfeld, and Paul Wolfowitz represented the “A-team” in American foreign policy after the seeming confusion of the Clinton years. But that was both a misreading of the latter years in the Clinton presidency and unwarranted optimism about the Bush team.

Myth 4: There is a strong Republican consensus about America’s role in the world.

Reality: Since the end of the Cold War nearly 20 years ago, conservatives have been deeply divided about America’s global role. Traditional pragmatists such as George H.W. Bush and Brent Scowcroft hoped that America could lead through institutions like the United Nations. Isolationist Patrick Buchanan ran on the old George McGovern slogan, “Come Home, America” in 1992 and nearly won the New Hampshire primary against a sitting president. Many neo-conservatives believed with the end of the Cold War that America no longer needed a global mission, and the neo-conservative movement appeared dead by the mid-1990s. And on Capitol Hill, the “Contract Republicans” who swept to power in the 1994 elections combined neo-isolationism with strong nationalism and anti-Clintonism to focus their attention on missile defense, the rise of China, and UN bashing.

The aftermath of 9/11 created an illusion that conservatives were unified behind the “war on terror” as they had been against communism during the Cold War. But now we are seeing Republicans splitting into familiar factions, with neoconservatives, traditional realists, and neo-isolationists facing off against one another. This presents huge challenges for John McCain, whether as a candidate or, if he wins, as president.

Myth 5: America needs a simple foreign policy doctrine like “containment.”

Reality: For twenty years people have been trying to come up with a replacement for the Cold War’s “containment” policy. We tell the story of how Clinton himself was obsessed with coming up with a theory of the case, but was ultimately unsuccessful. George W. Bush thought he had found the new defining concept after 9/11 with the “war on terror.”

But that concept has lost its luster – most senior military leaders don like the phrase, and even Colin Powell told us in an interview that the “war on terror” is a “bad phrase…it’s a criminal problem.” So we argue that the quest for defining a simple concept to guide American foreign policy is fruitless, overrated and even dangerous in the complex world of the 21st century. As the book recounts, in 1994, the Clinton team asked 90-year old George Kennan to come down from Princeton so they could get his advice on replacing the doctrine that he had articulated so successfully in 1947. The former diplomat’s sage counsel: “forget about the bumper sticker; try to come up with a thoughtful paragraph or two.”

Well, there’s some food for thought. We look forward to your responses to this or any other aspect of the book. And again, thanks so much for having us here.

The day, a few weeks ago, when America Between the Wars arrived on my doorstop also saw the arrival of another book via Amazon … Sebastian Faulks-as-Ian Fleming, The Devil May Care. The serious policy-history tome or the new James Bond novel? What to do, what to do? I idly picked up America Between the Wars, assuming that within nanoseconds I would get bored and flip over to Bond - but no, I found myself quite entranced with this book of 1990s history. I finished it before ever returning to Bond.

I spent the 1990s mostly in international NGO work - Human Rights Watch, followed by the Open Society Institute/Soros Foundations, mostly. I spent a lot of time on the landmines ban campaign, the Balkans, reform in the former communist countries, and issues related to global civil society. I was living in New York and spending much time abroad. Washington DC was a mystery to me, and the policy world of the USG, I now see from this book, unfathomable for me, even though I spent much time arguing about it. I have a vastly better idea, after reading this book, why it was so hard to engage the USG on Somalia, Bosnia, Rwanda, all the human rights situations that were metastasizing in those years. But also why it was so difficult-to-impossible for people like Soros, in the early 1990s, to get the US government to engage on things like the Russian economy - anyone remember the “ruble overhang”?

In later posts I will get into some of the fascinating policy questions raised by this book about the 1990s and especially their implications today. How much is the 1990s misunderstood in today’s policy-making? But to start out with, I just want to note what an impressive descriptive work this book is - I finally have a unified grasp on the 1990s from the standpoint of American policy. It’s a weird feeling - to have been, as NGO worker, on the edges, frequently out in the field, of the policies being argued and debated in Washington, but to read this book and understand what it was like from the perspective of the Clinton administration. As history alone, America Between the Wars brings it all together - I think it will be a standard account of the 1990s for a long time.

The Council on Foreign Relations and Opinio Juris are pleased to announce a book discussion with Derek Chollet and James Goldgeier on their recent book, America Between the Wars: From 11/9 to 9/11.

Here is a brief description of the book:

We are also pleased to welcome Matthew Waxman (Columbia) and Ken Anderson (American) as guest respondents. We look forward to an interesting discussion about American foreign policy during the critical years from November 9, 1989 to September 11, 2001.

First, I would like to thank David Zaring again for his comments on my essay: Empiricism and International Law: Insights for Investment Treaty Dispute Resolution. I was deeply humbled to read David’s thoughts about both the utility of the essay and the direction of my current research. David’s comments, however, raise a variety of issues worthy of a bit deeper exploration.

I wholeheartedly agree that empirical work in international law is decidedly not déclassé. As a proud alumna of the University of Minnesota Law School, I had the privilege of taking classes with Bob Hudec. I have profound respect for Hudec’s empirical exploration of international trade dispute settlement system and have been grateful to see others continue the empirical exploration of international economic law in the trade context. Perhaps more selfishly, as my research has developed, I have found myself wishing that Hudec was still with us so that I could benefit from his methodological insights related to the analysis of international economic dispute resolution. I would nevertheless hope that Hudec would have been pleased the development of empirical methodologies to areas of international law outside of the trade context. The work of junior scholars such as Oona Hathaway, Elena Baylis, Bill Burke-White, and Melissa Waters spring immediately to mind although there are certainly others engaging in research. In the meantime, I will look forward to hearing the remarks of David Trubek and my co-panelist Juscelino Colares at the forthcoming Society of International Economic Law as they both have critical observations about Hudec’s legacy to empirical assessment of international economic law phenomena.

David also makes an interesting point about how research in international investment law might evolve in the future. I am sympathetic to the reference to Wright & Miller’s recent exploration of content analyses and the value of using rigorous social science methodology to study the content of judicial decisions. No doubt this literature, and its underlying methodological rigor, will aid the evolution of methodological approaches involving the analysis of investment treaty arbitration awards. As the essay also suggests, there are other critical methodological approaches that could be likewise as this area evolves. For example, provided that scholars are sufficiently transparent in the description and analysis of their quantitative research, meta-analysis may be possible. As discussed eloquently in Jeremy Blumenthal’s article Meta-Analysis: A Primer for Legal Scholars, meta-analysis can synthesize empirical analysis across studies in order to summarize the research and identify variables influencing the findings of particular research. These additional methodological approaches only scratch the surface of potential ways to develop international law empiricism. One might even imagine – much like social science counterparts – the development of research methodologists, who are dedicated to the exploration and improvement of empirical methodologies, as a type of international law sub-specialty. But my suspicion is these last two evolutionary advances may be years in the offing.

Finally, in providing the cautionary observation about the need for training, David observes that inter-disciplinary collaboration can help bridge the methodological divide by providing much needed skills in this regard. I decidedly agree with David about the value that collaboration brings on the methodological side and offer two counter-points.

First, there are also practical benefits to be garnered from collaboration beyond methodological insights. Chief among these benefits is: sleep. Empirical research, while rewarding, can take time. The development of datasets can be labor intensive – even with the help of able research assistants (and I have been profoundly blessed in that department with the assistance of Melanie Neely and Jenna Perkins). Working in collaboration with others means that some of the most laborious aspects of empirical research – namely data collection – can be shared. In other words, it means that you are less likely to be sleep deprived and able to work more effectively. (And yes, there is empirical literature in related contexts to back up this claim.) Sharing of such tasks may also mean, provided proper research protocols related to inter-coder reliability are followed, that the reliability of data collection may be enhanced. It also means that research methodology choices can be considered with a view to considering multiple perspectives; and as none of us is perfect, the use of group-think to develop research and analysis can be invaluable. Collaboration also creates research efficiencies. For example, those with an expertise in or aptitude for the creation of graphs, tables and charts can develop them readily. I may, however, say this given my own graduate coursework at the University of Nebraska Law and Psychology JD/PhD program with Cal Garbin on multivariate research design and data analysis (see here and here) and the learning curve I have experienced in the creation of graphs during my work for Cal this summer.

The second counterpoint suggests that there may be a gap to fill within legal education. More particularly, while there are benefits to collaborating in an inter-disciplinary manner, one wonders whether such collaboration may be even more fruitful if legal scholars had access – for example in law school – to methodological classes to provide basic training. There are certainly useful programs for professors such as the Northwestern/WashU “bootcamp” or programs for quantitative methods at the University of Michigan, University of Essex or the European Consortium for Political Research’s program at the University of Ljubljana. Nevertheless, the essay explores the unique benefit of systematically providing the next generation of research assistants, lawyers and law professors with training in the law school context. Some law schools, such as Berkeley, Cornell, Harvard, Illinois, Leiden University, Northwestern, Penn, Stanford, University of Chicago, Vanderbilt, Washington University, and Yale have classes related to the empirical methods and the law (and apologies for the lack of a complete list in this regard for other law schools with separate courses focused on empirical methods). A casebook with an accessible teacher’s manual, such as the one being developed by faculty at the University of Illinois, goes a long way to filling this particular gap in U.S. legal training. I understand Empirical Methods in Law (Aspen, forthcoming), written by Bob Lawless, Jennifer Robbennolt and Tom Ulen, should be available for Fall 2009; and based upon the draft chapters I have seen, I am looking forward to getting my copy.

Ultimately, if we are willing to take on the challenge, we are at the first step of a journey of empirical assessment of investment treaty dispute resolution. There are inevitably places where we can grow and develop in collaboration or consultation with others. And that, at least in my view, is certainly a worthy undertaking.

[David Zaring is Assistant Professor of Legal Studies and Business Ethics, Wharton School, University of Pennsylvania]

Susan Franck’s essay makes the case for more empirical research in international economic law; a project that she has pursued – I might venture to say that she owns an important part of the field, given the unique and comprehensive data on investment arbitrations that she has collected and continues to analyze – in her other work. It is worth noting both how precise and how important Susan’s recommendations are. First, when I think about empirical research in international economic relations more generally (and here I should clear my throat apologetically – I’m not an empirical scholar except in a rather mild sense, but primarily a reader of some of that work), I think of the big picture claims made by some applied economists – Andrew Rose’s claim that membership in the WTO doesn’t lead to growth, for example, and the endless debates over whether NAFTA or bilateral investment treaties have been good or bad for their signatories. Susan cites a number of examples of these in her essay.

What is underdeveloped is empirical research on the law part of international economic law, specifically the litigation part. There is so much we don’t know about what happens when investments disputes are subject to arbitrations, but that hasn’t stopped people like Bolivia’s president Evo Morales making consequential decisions based on their priors about what the process will mean.

So that’s why I say Susan’s empirical claims are precise – she thinks we need a new perspective on what happens in actual litigation, which is arguably both the signal offer of an investment or trade treaty and its most lawyerly manifestation. And it makes sense to recommend that assumptions like those of Morales be tested.

I will also commend her essay for giving us a bit of an intellectual history of the place of empiricism in international law … which I think she would say comes largely from the increasing empiricism of international relations scholarship and the increasing popularity of ELS. She also offers outline of one way to pursue empirics in international legal research, which is all to the good.

This is already a long post, but I’d like to do three more things in it: 1. Note that there increasingly is empiricism in international legal scholarship, 2. Urge a bit of caution on the part of would-be empiricists, and 3. Speculate about some empirical research that might be particularly worth reading in the future.

1. The sort of work that Susan urges is, I agree, unnecessarily rare, but it is not déclassé. It has a worthy past and increasingly vibrant future. Robert Hudec, after all, kept track of WTO decisions, and Simon Lester and Kara Leitner continue to build on his work. John Yoo and Eric Posner have made empirical claims about effective international tribunals that occasioned a useful response by Anne-Marie Slaughter and Larry Helfer. And so on.

2. Cutting edge empirical work is technical – increasingly so – and takes training. Disciplinary barriers are often higher than you think. Pick up a copy of the American Political Science Review and Quarterly Journal of Economics and give them a casual read if you think you might disagree. I am, as I have said, no empiricist, but my sense is that legal scholars are often best-served by co-authoring if they feel the urge to do empirical work and by training themselves to read empirical papers (no easy task!) as a prelude to pursuing empirical work.

3. A couple of predictions about the future. Careful event studies might be useful evidence in determining whether and which international legal institutions matter. Ron Wright and Marc Miller have noted the growing prevalence of content analyses in legal research, and, done well, it seems to me that they are a natural complement to doctrinal work (it’s often hard getting enough observations to make that useful, though).

[Professor Susan Franck is Associate Professor of Law, Washington & Lee University School of Law. Please find her SSRN author page here.]

First, I want to take the opportunity to thank the editors of the Virginia Journal of International Law and Opinio Juris for an opportunity to discuss my recent essay, Empiricism and International Law: Insights for Investment Treaty Dispute Resolution. I would also like to thank David Zaring in advance for commenting on the essay. I look forward to a thoughtful and provocative discussion.

This essay develops ideas implicit in the work of certain international law, international relations and empirical legal scholars - namely that there are areas of international law deserving of and ripe for empirical analysis. More particularly, the use of empirical methodologies can create new facts, offer different perspectives and promote a more nuanced analysis of international law phenomena.

The potential benefits of such an epistemological approach are easily understood in the context of international investment law and dispute resolution.

The President of Bolivia, Evo Morales, has suggested that the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) is an international organization where no country, except perhaps the US, will ever win. The International Herald Tribune quotes Morales as saying “Governments in Latin America and I think all over the world never win the cases. The transnationals always win”. Although this assertion was used to justify Bolivia’s withdrawal from ICSID, quantitative data flatly contradicts Morales’ allegation.

Meanwhile, a March 2008 story in the Financial Times, referred to investment treaty arbitration awards involving: (1) “hundreds of millions of dollars in compensation,” (2) a claim by Mobil for “billions of dollars,” and (3) Bolivia’s “loss” in a case against Bechtel. Empirical information aids the contextualization of these claims. It is useful to consider that: (1) the average value of awards in one study was in the order of US$10 million, (2) the difference between amounts claimed and awarded was in the order of US$333 million, and (3) Bolivia’s “loss” at the jurisdictional phase actually resulted in a settlement where the investors dropped their claims and were paid nothing. Meanwhile, issues related to international economic law – particularly trade and investment – are becoming a focal point for politicians and the public.

Against this backdrop, this essay does three things to consider the potential integration of empirical methodologies into the analysis of international investment law and dispute resolution.

First, it explores the historical relationship with international law and empirical methods. Acknowledging the re-integration of international relations and international law as well as the increased appreciation for empirical legal studies in domestic law contexts, the essay suggests that the mutual interest in empirical methodologies - broadly defined - could be developed further. For example, this might involve international lawyers drawing upon the methodological debates and insights from the empirical legal scholars and adapting them to analyze international law phenomenon; likewise, empirical legal scholars can gain new areas of research that may provide a useful counterpoint to study of domestic (whether in the U.S. or broad) legal phenomenon.

Second, the essay adopts Professor Korobkin’s definition of empiricism and argues for a broad understanding of empirical methodologies in international investment law. The essay posits that quantitative, qualitative and mixed methods may all be usefully applied to the analysis of investment treaty dispute resolution and encourages debate on how different methodologies might be suitable for different research questions.

Third, the essay argues that the benefits of using empirical methodologies outweigh the costs and suggests five steps for developing an empirically infused research agenda in investment treaty dispute resolution. These steps may include, but not be limited to: (1) building research capacity, (2) obtaining data, (3) designing research methodology, (4) conducting research, analyzing the results, and contextualizing the findings properly, and (5) disseminating the results to stakeholders for consideration.

As befits an essay, it concludes on a note designed to spark conversation as much as it is to articulate a particular position. In particular, the essay argues that while empirical methodologies may not work for every research area or question, the use empirical methodologies can infuse international investment law with information to inform normative choices. Particularly for investment dispute resolution, systematically gathered and properly analyzed empirical data can correct misperceptions about existing dispute resolution processes, permit considered analysis of legal issues affecting the public, and could – for example – facilitate informed decisions about the negotiation and revision of investment treaties.

Particularly in the United States, Latin American countries such as Ecuador and even in Norway, there is a hot political dialogue about the proper terms of investment treaties. The issue is sufficiently compelling that the American Society of International Law’s International Economic Law Interest Group is going to be hosting a conference in November 2008 to discuss the intersection between the political dimensions of the debates about trade and investment. (A previous Opinio Juris post is here, and the call for papers is here.) Given this context, there is particular utility in examining what opportunities there might be to infuse scholarship with empirical methodologies to generate information that can form part of a dialogue to promote a more informed discourse on international investment law.

It is too early to know whether the approach I recommend will provide utility in the long run. There are inevitable challenges and practicalities that will be difficult to ignore that we might discuss here in greater detail. Nevertheless, I do believe that there is tangible, potentially useful research that can be done with relative inconvenience in the short term. These small, foundational projects can form the basis for replicating, developing and converging research in the hopes of ultimately creating a more dynamic and informed tapestry of international investment law. And after all, if we do not at least try, we will never know what might have been.

Sarfaty’s reply addresses a fundamental problem with conflating norms with binding legal rights. In my article, I argue that the classification of a potential human right—like participatory development—may be seen as operating on a continuum. On one end of the continuum exists a norm. On the other end exists a rule of customary international law. As a norm “crystallizes,” it has the potential to move along the continuum toward attaining recognition as legal right. My article suggests that, while the norm/law continuum is fluid and dynamic, the current requirements of CIL mandate that an international human rights norm not be viewed as an international human rights law until states and major intergovernmental organizations like the World Bank consistently practice participatory development out of a sense of legal obligation.

Sarfaty responds by correctly noting that “it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation.” As Andrew Guzman and others have pointed out, one reason for this difficulty is that major international actors talk and act, but do they really “think?” If not, then we are left with studying what these actors say and do to understand whether these actions are taken out of a sense of legal obligation. With respect to participatory development, that means looking at how the World Bank and its biggest donor engage in the practice of participatory development.

The examples I provide demonstrate that the World Bank has been slowly internalizing some version of a participatory development norm. The Bank has devoted a large number of resources in an attempt to practice (or, at a minimum, to have the appearance of practicing) participatory development. Sarfaty, however, challenges my choice of internalization examples because “project-level participation is a better indicator of whether the norm of participatory development has been internalized.”

I think Sarfaty must be correct. I also think that her critique tends to support two of my points.

First, while the participatory development norm has been slowly crystallizing within the Bank, that process is neither complete nor certain to achieve full internalization. The World Bank has set up bureaucratic structures to support participation by various stakeholders, but Sarfaty points out that these structures do not guarantee that stakeholders on the ground are having a say in Bank projects that will affect their lives in a very real way. Still, if we compare the Bank’s willingness to, for example, fund projects that are “community-driven” (p. 759), shift its country directors from Washington, D.C. to the particular country (p. 760), or augment its funding of civil society partnerships (p. 760) with Bank practices prior to the mid-1980s, we see a marked difference in how the Bank practices participatory development. While participation at the project-level could certainly be more robust, greater internalization at more macro levels also suggests that the norm is in some form being crystallized.

Second, there is no generally-agreed definition for what counts as “participatory” in “participatory development” (pp. 736-39). This definitional quagmire returns us to the problems of satisfying the requirements of CIL. On the one hand, it is difficult to show that a more specific definition of participatory development—Sarfaty’s, for instance, seems to require project-level participation by affected stakeholders—has satisfied the two requirements of CIL. On the other hand, a vague definition runs the risk of being empty rhetoric that does not require the World Bank to do much of anything, let alone out of a sense of legal obligation.

Sarfaty concludes her response by asking whether one should distinguish between legal internalization and social or political internalization. My answer, both here and in the article, is an emphatic “yes,” and the current requirements of CIL provide the place for us to look to discern whether a moral norm has attained status as an international human rights law.

[Galit A. Sarfaty is a Fellow at Harvard Law School's Program on the Legal Profession, and a Ph.D. Candidate in Anthropology at the University of Chicago]

I would like to thank Opinio Juris and Martin Totaro for the opportunity to comment on this engaging article. The piece is an excellent contribution to existing literature on norm development and international human rights law. Particularly important is his discussion of the “crystallization” process by which a norm shifts to a human right with corresponding legal obligations. This process has been largely overlooked and is very worthy of study. Totaro is correct to observe that classification of a norm as a legal right is not binary but operates on a continuum. One goal of his article is to distinguish between moral norms and legal human rights. While I agree that such a distinction is useful on a theoretical level, it is difficult to empirically determine when a norm is being internalized out of a sense of legal obligation as opposed to moral obligation. I would welcome Totaro’s thoughts on this issue and his recommendations on how scholars can distinguish the two in practice when conducting research on norm internalization.

My comments primarily focus on the second half of the article. Here, Totaro provides a case study of how the norm of participatory development is beginning to crystallize into a legal human right. Yet in attempting to demonstrate that the World Bank is slowly internalizing the participatory development norm, Totaro relies on insufficient examples that do not adequately establish his claim. Advocates often interpret the norm of participatory development as referring to participation by stakeholders in project design and/or implementation, rather than participation in country-level dialogues. Totaro’s examples are all from the latter category—e.g., the development of Country Assistance Strategies (CASs) and Poverty Reduction Strategy Papers (PRSPs)—so they do not fully address whether the Bank has internalized the participatory development norm in its operational practice. Furthermore, he argues that Global Monitoring Reports “represent a major step forward” in the Bank’s adoption of the norm, yet his main evidence is the level of transparency and accountability in the reports rather than participation (p. 752). His only example of participation around the reports involves the Center for Global Development, a U.S.-based policy NGO that does not represent the typical stakeholder of Bank projects.

I argue that project-level participation is a better indicator of whether the norm of participatory development has been internalized. Instead of only examining participation in country dialogues by select NGOs, one should also evaluate the level of participation by community-based stakeholders that are directly or indirectly affected by development projects. This type of participation is usually mediated by the World Bank rather than the state government. In order to provide an example of project-level participation, I suggest that Totaro discuss the important debate over prior informed consent by potentially affected communities, which was a central issue during the recent revision of the Bank’s Indigenous Peoples Policy (Operational Policy 4.10). Many indigenous communities and human rights advocates have argued that there is a right to prior informed consent, while others claim that it is simply an emerging norm that is not yet recognized under customary international law. The example of prior informed consent suggests that whether the Bank is internalizing this important component of participatory development is highly contested.

Totaro’s final example of “the fluid process between moral norms and legal human rights” is former Bank President James Wolfensohn’s embracing of human rights in non-legal terms (p. 762). This section appears to conflate the right to participatory development with human rights in general. It also relies solely on Wolfensohn’s statements as an indication that the Bank is not implementing the norm out of a sense of legal obligation. But one cannot make this assessment without examining how actual Bank employees are implementing the norm and whether they are accepting it as a binding legal obligation. Totaro raises a related point a bit earlier in his piece, when he rightly observes that the Bank’s governing body and the bureaucrats working inside the institution may hold competing preferences (p. 757). Yet his discussion of “the inevitable bureaucratization of rhetoric” fails to account for the internal tensions within bureaucracies over whether and how to operationalize rhetoric (pp. 758-61). Based on my own experience ethnographically studying the organizational culture of the Bank, the bureaucratization of rhetoric is certainly not inevitable. It is important to recognize the complex decision-making process within bureaucracies that may work against norm internalization, even when those norms are supported in rhetoric.

Finally, it would be useful if Totaro outlined what he sees as the conditions for norm internalization. If Totaro is correct that it operates on a continuum, then what are the different levels before full internalization is reached? Should one distinguish between legal internalization and social or political internalization? Addressing such issues would further strengthen this article and its contribution to existing literature in international law and human rights.

[Martin Totaro is an associate at Baker Botts in Washington, D.C. These views are his alone. Please find his SSRN author page here.]

Thanks to Opinio Juris for providing an outlet for VJIL authors to express their ideas to a wide audience, and thanks to VJIL for including me as one of those authors. Galit Sarfaty has graciously agreed to respond.

In my article, I attempt to make two modest contributions regarding the relationship between international law and norm internalization. First, I offer a typology that bridges the basic tenets of legal positivism and constructivism for the purpose of providing a useful framework to separate moral norms from human rights that have attained customary international law (CIL) status. Second, by using an illustrative example—the purported right to participatory development—I aim to demonstrate how the sociopolitical process of pushing toward the legalization of a moral norm can be a vibrant, robust procedure that need not prematurely accord CIL status to a norm still in the adolescent stage of rights formation under international law.

Under a commonly accepted definition of CIL, a norm only becomes a part of CIL because of general and consistent state practice taken out of a sense of legal obligation. My article focuses in part on how an international human rights norm may be internalized such that states engage in or respect the validity of a moral norm (the usage or practice prong), but states might not do so out of a sense of legal obligation (the opinio juris prong). In other words, a state may respect the moral legitimacy of a norm while simultaneously opposing the norm as a binding legal obligation.

Several scholars, including Galit Sarfaty, have focused on the dynamic process of norm-internalization at the supra-national, national, and sub-national levels. My article enters this debate by concentrating on the fluid process of norm-internalization, paying particular attention to the crystallization period but prior to a norm attaining CIL status. My analytical framework borrows from legal positivism and constructivist theory in international relations literature. As used here, at its most basic, oversimplified level, legal positivism emphasizes “the need to distinguish, firmly and with the maximum of clarity, law as it is from law as it ought to be.” H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 594 (1958). Constructivism, in contrast, refers to the process by which states and other major international actors internalize norms in a manner that has the potential to change these actors’ interests. For constructivists, a norm entrepreneur has the potential to change these actors’ interests. When combined as an analytical tool, “constructo-positivism” retains the key insights from both schools of thought—while CIL and non-CIL norms should not be conflated (i.e., distinguishing between the “is” and the “ought” in CIL), CIL can expand when a norm crystallizes to the point that major international actors engage the norm consistently and out of a sense of legal obligation. Put differently, the constructo-positivist as an explanatory matter separates moral norms from legal human rights but as a normative matter recognizes and even supports the process of legalization of certain norms.

The constructo-positivist framework provides a fresh look at the relationship between international human rights norms and legal human rights. These norms, grounded in a moral claim that a right should be viewed as binding in an international legal sense, do not attain this legal status simply because advocates push for such recognition. Rather, advocates of a particular right-claim must demonstrate that this right has become part of international law through accepted legalization conduits like treaties or CIL.

After laying out a typology of constructo-positivism, the article then applies it to the current debate over whether participatory development is a legal human right. I conclude that it is not—while major international actors like to United States and the World Bank may accept the legitimacy of participatory development as an aspirational norm, these actors do not engage in participatory development out of a sense of legal obligation.

While I argue that participatory development is not a part of the body of CIL, I then turn to how norm entrepreneurs are pressuring the Bank to internalize the right to participatory development.

These efforts have been partially successful. I examine the rhetoric and practice of the Bank with respect to participatory development, and find that, over the past twenty or so years, there has been what might be called “the inevitable bureaucratization of rhetoric.” In 1985, the World Bank discussed the virtue of participation in broad terms. Ten years later, we saw a shift toward more specific rhetoric about what participation really means. In 2005, we saw not only more complicated rhetoric, but also more structures built around this rhetoric. I focus on World Bank programs like Poverty Reduction Strategy Papers and Global Monitoring Reports that illustrate how, as the rhetoric itself developed, a wide array of norm entrepreneurs pressured and worked with the Bank to enact accountability structures to match the participatory rhetoric.

I conclude by suggesting that this process of norm-internalization indicates growing acceptance of the virtues of participatory development and its widespread practice by major international actors like the World Bank. The next shift for participatory development norm entrepreneurs will be to attempt to push for the internalization of the legal status of the norm rather than the legitimacy of the norm itself. While this norm has not yet been internalized to the point where the World Bank engages in participatory development out of a sense of legal obligation, it has been internalized as an aspirational norm.

In his generous response to my article, Sam Erman rightly points to the importance of understanding the intersection between the Gonzales case and other struggles over citizenship that were unfolding even as Isabel González tried to make her way to New York City from her native Puerto Rico. Ngai’s book Impossible Subjects is a good place to start in order to learn about those other struggles; Erman’s valuable new article is where one must turn if one wants to make the connections between the Gonzales case and the broader history of membership in the United States. My own future work, I hope, will make additional contributions to this literature. In particular, I am currently up to my neck in a study that aims to enhance our understanding of the relationship between the history of U.S. citizenship and the history of nationality in international law. I therefore appreciate Erman’s well-placed suggestion that a more extended treatment of citizenship, the Constitution, and international law than the one I offer in my article on the Gonzales case would be welcome.

My work-in-progress looks at the emergence of the category of the noncitizen national (before its adoption into domestic U.S. law) in the work of nineteenth century authorities on international law. Toward the late nineteenth century, international legal experts became increasingly concerned that divergent domestic legal regimes governing citizenship gave rise to conflicts that could not be solved without clear and authoritative international legal rules. Their concerns included, but were not limited to, problems associated with statelessness, coverture (which could lead to a wife’s loss of her citizenship, even if she could not acquire her husband’s citizenship), and territorial conquest and annexation (which had consequences for the nationality of the inhabitants of the affected territory). These and other problems did not lend themselves to domestic legal solutions, because the relevant domestic legal regimes were either silent or in conflict. And so late nineteenth-century international lawyers took up the project of crafting a modern international law of nationality, attempting to capture the bond between the individual and the state at its most essential level (one writer used the phrase “naked nationality” to describe what fell within the purview of international law).

These developments shed light not only on the law of membership on an international level, but also on the interaction between international and domestic law more generally. It was a fruitful interaction to be sure, but one that could also have perverse results. International lawyers in this period did not merely hope to develop a particular area of international law; their broader goal was to promote respect for international law itself, and to invest it with authority. To do so, they had to carve out a space subject to the jurisdiction of international law, comprising whatever was not strictly “domestic.” In the process, they duly declared a distinct, domestic space off-limits to international law. In the context of nationality, this meant that they carefully refrained from questioning domestic rules creating hierarchies of political membership: on the contrary, authorities on international law borrowed the idea of partial political membership, devoid of the full rights of citizenship (“naked,” as it were), from the domestic practices of imperial states, and distilled from that idea the category of nationality under international law. As all of this suggests, the cost of carving out a space for international law was the uncritical acceptance of practices characterized as “domestic.”

My ongoing work on the international legal history of nationality examines this legitimizing dynamic as it played out in the United States: its own imperial practices contributed to international legal developments, and these developments in turn helped to shape a changing domestic constitutional landscape—in the process giving sanction to those very same imperial practices. To put it in more specific terms, this is the dynamic we can see playing out in the events surrounding the Gonzales case: the writers of international legal treatises looked to second-class citizenship in the United States, and to analogous statuses in other empires, in coming up with the idea of the noncitizen “national”; the United States then borrowed that label from international law, and applied it to Puerto Ricans and Filipinos.

Despite the newfangled nomenclature, not everyone, of course, was convinced of the “legitimacy” of this new status—least of all those upon whom it was conferred. Their arguments against their colonial condition would draw on international law as well—specifically, on the right to self-determination. And so the story continues.

[Sam Erman is a Ph.D. Candidate in American Culture and recent J.D. recipient at the University of Michigan]

The scholarly attention that Burnett devotes to Gonzales v. Williams (1904) is long overdue. The case is crucial to understanding the relationship between U.S. imperialism, U.S. citizenship, and the U.S. constitutional order in the early twentieth century. She shows us how in it voices at the center and at the periphery of the U.S. empire-state struggled over still-unsettled boundaries of U.S. citizenship, and how these struggles and the decision that resulted from them altered the U.S. constitutional system. The case, as I summarize below and discuss further elsewhere, is also an opportunity to integrate U.S. histories of race, immigration, gender, and empire into a single story and to explore how Isabel González’s struggle to preserve her individual honor launched a Supreme Court action seeking honor for her people. Burnett’s article suggests future inquiries too, most notably into relationships between international and constitutional law.

The insight that Gonzales merits scholarly attention owes much to Burnett’s efforts. Until recently, relatively few academics researched the Insular Cases, especially cases other than Downes v. Bidwell (1901). In 2001, in Foreign in a Domestic Sense, Burnett and Burke Marshall collected essays by many of the scholars who were grappling with the constitutional changes that resulted from the deliberate U.S. turn toward formal empire in the late nineteenth century. Four years later, in Untied States, Burnett questioned the scholarly conventional wisdom that portrayed Downes as establishing “that the Constitution did not ‘follow the flag.’” She showed that the case did not explicitly deny Puerto Ricans a panoply of constitutional rights. Instead Downes aided U.S. colonialism by perpetuating, “with slight modifications, an already ambiguous jurisprudence on the role of constitutional provisions in territories.” In many cases, it would be for future courts to say which constitutional provisions applied in Puerto Rico in what ways.

Gonzales matters because it gave the Supreme Court an opportunity to specify the citizenship status of Puerto Ricans at a time when the legal meaning of formal U.S. empire remained unsettled. As Burnett shows, in seeking to reconcile U.S. constitutional norms to U.S. empire, the Court departed from the conventional wisdom that the Fourteenth Amendment made U.S. citizenship and U.S. nationality coterminous. Instead, Gonzales introduced into U.S. legal culture—if not explicitly into U.S. case law—the category of non-citizen national.

The case was also an important chapter in the history of U.S. citizenship. As I have argued elsewhere, scholars too often conceive of U.S. citizenship either as an ahistorical ideal or as a stable, well-defined legal term that changed slowly. By contrast, Burnett observes how the lawyers for both parties stressed the plasticity of legal terms like citizenship. Their arguments demonstrated that both the content and distribution of U.S. citizenship remained contested long after the Fourteenth Amendment purported to settle both.

In Burnett’s hands, Gonzales also illustrates how the constitutional crisis and new constitutional order that U.S. empire produced did not merely result because empire created a difficult legal-analytical problem. Colonized peoples used U.S. forums to challenge actions and ideas of U.S. officials. For example, Burnett shows that Puerto Rican lawyer Federico Degetau was familiar with problems of formal empire that were new to the United States, having faced them repeatedly in prior political struggles under Spain. Those experiences shaped his arguments and claims before the Court and thereby altered the terrain upon which the Court ruled.

In a concurrent article this summer in the Journal of American Ethnic History, I argue that Gonzales also bears deeper scrutiny because it illuminates interrelationships between U.S. legal histories of race, gender, empire, and immigration. Turn-of-the-twentieth-century annexations did not occur in isolation. During those years federal courts sustained Chinese Exclusion, Jim Crow, and black disfranchisement. State courts continued to recognize aspects of coverture. And the federal political branches extended their control over American Indians via detribalization and allotment. Burnett describes Degetau’s efforts to demonstrate that Puerto Ricans were not racialized “semi savages” akin to “uncivilized native tribes.” I aim to show that other lawyers and litigants in Gonzales shared Degetau’s concern with the comparative capacity of Puerto Ricans, analogizing islanders to women, children, domestic U.S. minorities, and colonized peoples. As these advocates understood, the problem of the citizenship status of Puerto Ricans was inseparable from the many citizenship questions involving “dependent” and “unequal” populations in and around the United States.

The case also presents an opportunity to trace Isabel González’s trajectory from detained “alien” to Supreme Court litigant. Burnett explains how the pregnant González brought her judicial action after immigration authorities derailed her plans to find and marry the father of her unborn child by excluding her as an alien “likely to become a public charge.” I argue that in hearings at Ellis Island, González and her family focused not on citizenship, but on preserving González’s honor against a finding that threatened impugn her sexual propriety. Only after reaching court did González’s focus switch to the honor of all Puerto Ricans. While her appeal was pending, she found and married the man she had come to New York in search of, but she then hid the event, declining the public redemption and potential mooting of her case that disclosure could bring in favor of pressing her claim to U.S. citizenship for all Puerto Ricans. After the Court ruled, she wrote in published letters to the New York Times that the decision and surrounding events revealed a United States that failed to treat Puerto Ricans honorably, breaking promises to them and marking them as inferior to “full-fledged American citizens.”

Burnett’s essay also suggests future investigations. Though not her focus, she describes a case permeated by international law. González’s attorney was a prominent international-law lawyer; the U.S. attorney referenced European approaches to nationality; and Degetau was a Spanish-trained lawyer citing international-law documents. I hope I am not too forward in wishing that these initial observations by Burnett presage her more extended treatment of the relationship between Gonzales, international law, and the Constitution in future work.

Professor Ngai goes to the heart of the matter when she alludes to a literature on colonialism that takes issue with an essentializing nationalism. In my work on Degetau and on other figures of the intellectual elite of the American imperial periphery, I seek to offer an alternative to the nationalist perspective that has long dominated post-colonial historiography, in which the only legitimate anti-imperialist or “decolonizing” move belongs to the nationalist. Not only does this ignore the multiplicity of views that exist and engage with each other in the colonial periphery; it replaces them with the guilty fantasy of a liberal metropolitan intelligentsia, which, in a fit of vicarious repentance on behalf of its forebears, takes sides with the uncompromising nationalist. He alone (yes, he) can expiate the sins of empire with his strong arm, armed if needs be—and in the process take the whole mess off our hands. This bien pensant program for the remaking of the colonial world has caused as many catastrophes as it has resolved. Maybe more.

Then again, the historians of the metropole did not invent this maneuver all by themselves (nor of course do they deserve all the credit and/or blame for the phenomenon of nationalism). Degetau himself spent a great deal of his life fighting this essentializing move—and what concerned him most was the manipulation of nationalist discourse by his own generation of Puerto Rican political leaders, many of whom became increasingly enamored of the idea of “Puerto Ricanness” as the central organizing principle of political life on the island. They all started out as liberals and as “autonomists,” who confronted the Spanish government repeatedly with their demands for greater self-government for Puerto Rico, and who frequently cited the model of Canadian autonomy under the British North America Act. But Spain’s repeated rejection of their pleas for political reform had the unintended consequence of sharpening an emergent sense of Puerto Rican national identity—precisely what Spain foolishly hoped to prevent with its recalcitrance—and, inspired by this nascent sense of a distinct Puerto Rican identity, a segment of the late nineteenth century Puerto Rican autonomist leadership eventually turned against Canadian-style autonomy, and began calling with increasing stridency for a newly ethno-regional political regime. We are not Canadian autonomists, they declared; we are Puerto Rican autonomists.

Degetau was not among them. He and other like-minded autonomist leaders remained deeply skeptical of the suggestion that the political regime for which they were all struggling should have a defined ethnic content. An article published in the Puerto Rican newspaper El País on 3 November 1897 captures their reaction to the novel assertion that Puerto Rico must have “Puerto Rican” autonomy: “We don’t get it: we are Autonomist Spaniards; and because being Spanish is inherent in us, whatever form of autonomy we receive cannot alter that condition: if they give us a regime identical to the one enjoyed by Canada… will that somehow undermine what we are by our very nature—Spaniards?” (translated from the Spanish, emphasis added).

The split between the two autonomist factions not only persisted after the transfer of sovereignty to the United States, it became aggravated by the resistance of the United States to the idea of Puerto Rican statehood, a rejection which even further heightened the sense among the advocates of a specifically Puerto Rican autonomy that nothing but Puerto Rican autonomy would do. But Degetau and his colleagues persisted in their view that the goal was the implementation on the island not of Puerto Ricanness, but of liberal ideals, and that those ideals would become “Puerto Rican” if Puerto Ricans enjoyed the benefit of them. The same conviction informed Degetau’s arguments with respect to U.S. citizenship: he believed that, if they were going to live under U.S. sovereignty, then Puerto Ricans deserved U.S. citizenship quite as much as other Americans did, and he remained confident always that becoming U.S. citizens would not cost Puerto Ricans their Puerto Ricannness. Rather, it would simply make U.S. citizenship as consistent with “Puerto Ricanness” as it was with any ethnic identity. As it should be.

[Professor Mae Ngai is Lung Professor of Asian American Studies and Professor of History, Columbia University]

I especially appreciate Christina Burnett’s examination of Federico Degetau’s “legal cosmopolitanism” in Gonzales v. Williams. Burnett shows that intellectuals in the colonial periphery made a unique contribution to the legal discourse on empire and citizenship. Degetau’s critique, that the American wish to “nationalize” Puerto Ricans as sovereign subjects but not “naturalize” them as U.S. citizens smacked of Spain’s colonial policy, was a devastating exposure of U.S. imperial character. Degetau’s critique hints, too, at the enduring influence of American exceptionalism, even on contemporary scholarship.

Burnett’s discussion of Degetau prompted me think about the spread of Enlightenment ideas in the non-European world. Burnett is correct, in my view, to resist judging Degetau as “collaborationist.” His views on equal citizenship and political autonomy for Puerto Rico were liberal, arguably cut from the same large bolt of modern cloth as, say, those in Puerto Rico and Cuba who championed national independence. This is not to say that there was no difference in the politics of autonomy and independence but to suggest a larger ideological frame that is worth thinking about.

Men like Degetau who advocated for equality and autonomy pushed back against the social Darwinism of the age, which considered Puerto Ricans “natives” not (yet) fit to be “citizens,” even while accepting social Darwinism’s general hierarchy insofar they wished to relocate themselves to a higher rung on the ladder.

The influence of Enlightenment rationality and modern nationalism on colonized peoples is not easy to evaluate. Scholars of India and China have pointed out that the emphasis given to nationalism in the colonized and semi-colonized world (at least through the mid-twentieth century) has blotted, even stamped out alternate modes of cultural and political expression and resistance (Chakrabarty, Duara). Some have chafed at Benedict Anderson’s view of nationalism’s imaginary as an irresistible force as a kind of colonizing move (Chatterjee). Yet besides these pernicious aspects of liberalism and nationalism, there clearly also is—as Degetau’s writings attest—an emancipatory thrust in the embrace of such concepts as equality, fairness, autonomy, and self-determination. There is, moreover, something wonderfully ironic about the intellectual cosmopolitanism of colonials like Degetau—his experience at a colonial crossroads of multiple empires gave him a broader vision than the American jurists with whom he sought to engage.

[Professor Christina Duffy Burnett is Associate Professor of Law, Columbia University]

My article in the latest issue of the Virginia Journal of International Law forms part of a larger project in which my goal is to tell a different kind of constitutional history of empire. Rather than focus on the question that has long occupied constitutional historians of U.S. imperialism—whether the Constitution “follows the flag”—I look beyond the text, and beyond the United States, in order to examine the interaction among different constitutional traditions in the context of empire in the Americas—U.S., Spanish, Cuban, Puerto Rican. In the process, I hope to enrich constitutional history in general (as well as the history of imperialism) by bringing to bear the intellectual traditions and legal perspectives of the inhabitants of the colonial periphery.

In this particular contribution to that project, I tell the story (or stories, really) behind the 1904 Supreme Court case Gonzales v. Williams. The decision in Gonzales came down several years after the United States annexed Puerto Rico and the Philippines at the end of the war with Spain in 1898. Departing from its usual practice with respect to previous territories, Congress declined to offer U.S. citizenship to the native inhabitants of these new territories. But it did not treat them as foreigners, either. Instead, Congress invented a new status for them: they became “citizens of Porto Rico” and “citizens of the Philippines.” No one knew what these sui generis labels meant: were these people implicitly citizens of the United States? Were they aliens? It seemed like they were neither, but didn’t they have to be one or the other?

Before addressing these questions, the Supreme Court dealt with the status of the territories themselves: it decided that they were neither “foreign” nor “domestic”: instead, they were “foreign to the United States in a domestic sense,” or as they later came to be known, “unincorporated territories” (because they had been annexed, but not “incorporated” into the United States). But eventually, the question citizenship found its way to the Court too, in a dispute involving a Puerto Rican woman named Isabel González. González, who was pregnant at the time of the incident giving rise to her litigation, traveled to New York from Puerto Rico in August of 1903. She was detained at Ellis Island, where immigration officials denied her entry on the ground that she was an alien immigrant “likely to become a public charge.” But González soon found powerful allies, including the prominent international lawyer Frederic R. Coudert, Jr., who took her case to the Supreme Court, and won—sort of.

The Court held that, under the immigration laws in force at the time, González was not an alien, and therefore could not be denied entry into New York. At the same time, however, the Court stopped short of declaring that she was a U.S. citizen, declining to the reach the constitutional question altogether. As a result, even after the Court took up the question of the citizenship status of the inhabitants of the new island territories, their situation remained confusing, ambiguous, and contested. Neither citizens nor aliens, they came to be known as something in between: “noncitizen nationals.”

The story of González herself is one of the stories behind the case. Very little is known about the details of her life, but she did end up staying in New York and marrying the man we understand to be the father of her baby, with whom (as best the record shows) she had come to be reunited. Another story behind the case, about which we know more, is that of Federico Degetau y González (no relation to Isabel). Degetau too was Puerto Rican, but he had encountered no difficulty in moving to the mainland: he traveled to Washington, D.C., as Puerto Rico’s first “Resident Commissioner,” or nonvoting representative. Although he was generally welcomed there and treated in many ways as if he were a citizen, he nevertheless dedicated himself to the struggle to gain U.S. citizenship, not only for himself but for all Puerto Ricans.

Degetau was a lawyer, politician, writer, and statesman with a long history of struggling for equality for Puerto Ricans. He had been one of the leaders of the “autonomist” movement in the nineteenth century, a movement dedicated to obtaining greater self-government for Puerto Rico while it was still a Spanish colony. After the United States took sovereignty over the island, Degetau became an advocate of statehood, equal rights, and full citizenship for Puerto Rico and its people. One of his many contributions to this struggle was an amicus brief he filed in González’s case.

In his brief, Degetau drew on his knowledge of Spanish history to make arguments to the Court that they were unlikely to hear from the other lawyers (whether González’s lawyer Coudert or the Solicitor General, Henry M. Hoyt). Degetau pointed out to the Court that by denying U.S. citizenship to the native inhabitants of Puerto Rico, the United States had perpetuated a form of discrimination that Puerto Ricans had suffered under Spain: geographic discrimination, under which Spaniards born on the Iberian Peninsula had rights that Spaniards born in Puerto Rico did not. With this argument, Degetau hoped to shame the Court into rectifying the unacceptable situation in which Puerto Ricans found themselves—living on U.S. territory, subject to U.S. sovereignty, but denied U.S. citizenship and the rights it implies—by comparing U.S. imperial policy with the imperial policy of Spain, which after all was supposed to be the less “enlightened” empire. But as we have seen, the Court was not persuaded: it agreed that Puerto Ricans were not aliens, but it did not conclude that they were citizens.

The legal designation that emerged out of all of this—that of the “noncitizen national”—was the product of constitutional improvisation in the face of imperial exigency. Once embarked on an imperialist quest, the United States needed some way to annex territory without necessarily expanding the ranks of U.S. citizens (or promising statehood to annexed territory). Congress obliged by inventing a novel membership category—“citizen of” such-and-such annexed territory—and the Court followed suit by declaring these territories “not incorporated,” and by allowing the liminal citizenship status of their native inhabitants to persist. In doing so, the United States failed to live up to its promise to bring the “blessings of enlightened civilization” (as General Nelson Miles put it upon landing on Puerto Rico’s shores in 1898) to the new territories. Instead, as Degetau made clear to the Court, the United States perpetuated the geographical discrimination devised by the Spanish empire, adopting it into U.S. law.

For the affected colonial subjects, this turn of events proved to be a crushing disappointment. Indeed, even the eventual conferral of U.S. citizenship on Puerto Ricans in 1917 (three years after Degetau died) would prove to be a mixed blessing, for it was done by Congress without consulting them, and it did not change Puerto Rico’s status as an “unincorporated territory.”

As a legal historian (and a Puerto Rican), I seek to contribute to the continued struggle for equality for Puerto Rico by recovering the struggles of my compatriots in the past, and remembering that their experiences, too, form part of the constitutional history of American empire. These have been my goals in telling the story of the Gonzales case through the experience of Isabel González and the arguments of Federico Degetau.