US Legal News - JURIST http://jurist.law.pitt.edu/paperchase/ JURIST's weblog of legal news and resources worth thinking about, by Professor Bernard Hibbitts and law students at the University of Pittsburgh School of Law. 2010-03-10T10:42:00-05:00 en-US Keeping America in the Dark http://jurist.law.pitt.edu/forumy/2010/03/keeping-america-in-dark.php JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says a recent effort by a conservative advocacy website to besmirsch the reputations of current DOJ lawyers who previously represented detainees should not distract the US government from criminally prosecuting DOJ lawyers from the past administration who made torture possible....

I recently came across an effort by a group calling itself Keep America Safe to pressure DOJ lawyers who once represented detainees by outing them as the ?Al Qaeda 9?. This new twist smacks of the ?Cully? Stimson's effort in the last administration to ?pressure? law firms that had lawyers working pro bono for the defense on those cases. After an uproar, Stimson resigned.

Keep America Safe and its surrogates appear to be conducting a thinly veiled effort to question the patriotism of those lawyers who represented detainees in resisting violations of the Geneva Conventions and bringing to light, in FOIA requests and litigation, the torture in the prior administration.

This kind of chilling effect on dissent from outrageous policy is nothing new under the sun. Its natural impact is to attempt to intimidate both those who take on these cases and those who would hire such people after they take on these cases, especially those entering the government to serve the public trust. Too much ?controversy? about them.

A further twist is an open letter in ?support? of the lawyers, recently described here. Among the signatories are a laundry list of persons who in the prior administration?s time were strong advocates for torture (whatever the euphemism used at the time). Of course, the zen of this letter is to try to put the current DOJ lawyers who defended detainees on the same level as the former DOJ lawyers who advocated for torture and thus rehabilitate the former DOJ lawyers.

Sorry folks, even here in Toledo we can see that game and it will not work. The former DOJ lawyers clearly advocated for a crime to be committed (though the OPR report glaringly did not even look at that canon of ethics in any meaningful sense). The current DOJ lawyers advocated for the defense in adversarial proceedings. These are fundamentally different animals and no effort at equivalence should be allowed to succeed to keep Americans in the dark.

Look, my fellow Americans, you either resist torture or you acquiesce to it. There is no middle ground. If you are so fearful that you are willing to think torture is OK, then you are just joining a long line of Americans in our history who in moments of hysteria were willing to give up everything. If you are, like the top military JAG officers in that time, willing to see the detrimental consequences of torture for America and that a state crime was committed, then I would ask that you stand with people like me and seek the criminal prosecution of the DOJ lawyers from the past administration so we can wash our very dirty laundry here at home rather than in some court overseas in Spain.

I recognize the effort to get you to acquiesce to torture is sophisticated and relentless. That is what people who advocate for torture do to avoid a day of reckoning in court. And those who you do not see named are the high-level civilians who were pushing for torture in the NSC Principals, the White House, and Congress. These persons have a stake in Americans not being aware of what they really did and also in not having what they did ? whether Democrat or Republican ? brought out for the world to see. I would even wager that there are leaders or former leaders of other countries that helped us who do not want to see their efforts to support torture come out in the public.

But so what for the egos and reputations of these people? They besmirched their reputations by putting torture in place, by perverting our soldiers to do their bidding, and then letting the grunts at the bottom take the fall when the Abu Ghraib scandal erupted.

They are perfectly willing to instrumentalize anything, anything to prevent themselves from being prosecuted. Do not let yourself be kept in the dark. Ask for light to be brought in the cold brilliance of a court room. It may not be good politics for this or that administration, but it would be a good thing for America. When it comes out we will all know who was quiet and who took a stand against torture. And that is the choice each American has to make when the forces are attempting to spin the problem into something else so that we sweep this all under the rug.

This is not going under a rug. Not if I can help it.


Benjamin Davis is a professor at the University of Toledo College of Law
 2010-03-10T10:42:00-05:00 2010-03-10T10:42:00-05:00 Benjamin Davis of the University of Toledo College of Law says a recent effort by a conservative advocacy website to besmirsch the reputations of current DOJ lawyers who previously represented detainees should not distract the US government from criminally prosecuting DOJ lawyers from the past administration who made torture possible....

I recently came across an effort by a group calling itself Keep America Safe to pressure DOJ lawyers who once represented detainees by outing them as the ?Al Qaeda 9?. This new twist smacks of the ?Cully? Stimson's effort in the last administration to ?pressure? law firms that had lawyers working pro bono for the defense on those cases. After an uproar, Stimson resigned.

Keep America Safe and its surrogates appear to be conducting a thinly veiled effort to question the patriotism of those lawyers who represented detainees in resisting violations of the Geneva Conventions and bringing to light, in FOIA requests and litigation, the torture in the prior administration.

This kind of chilling effect on dissent from outrageous policy is nothing new under the sun. Its natural impact is to attempt to intimidate both those who take on these cases and those who would hire such people after they take on these cases, especially those entering the government to serve the public trust. Too much ?controversy? about them.

A further twist is an open letter in ?support? of the lawyers, recently described here. Among the signatories are a laundry list of persons who in the prior administration?s time were strong advocates for torture (whatever the euphemism used at the time). Of course, the zen of this letter is to try to put the current DOJ lawyers who defended detainees on the same level as the former DOJ lawyers who advocated for torture and thus rehabilitate the former DOJ lawyers.

Sorry folks, even here in Toledo we can see that game and it will not work. The former DOJ lawyers clearly advocated for a crime to be committed (though the OPR report glaringly did not even look at that canon of ethics in any meaningful sense). The current DOJ lawyers advocated for the defense in adversarial proceedings. These are fundamentally different animals and no effort at equivalence should be allowed to succeed to keep Americans in the dark.

Look, my fellow Americans, you either resist torture or you acquiesce to it. There is no middle ground. If you are so fearful that you are willing to think torture is OK, then you are just joining a long line of Americans in our history who in moments of hysteria were willing to give up everything. If you are, like the top military JAG officers in that time, willing to see the detrimental consequences of torture for America and that a state crime was committed, then I would ask that you stand with people like me and seek the criminal prosecution of the DOJ lawyers from the past administration so we can wash our very dirty laundry here at home rather than in some court overseas in Spain.

I recognize the effort to get you to acquiesce to torture is sophisticated and relentless. That is what people who advocate for torture do to avoid a day of reckoning in court. And those who you do not see named are the high-level civilians who were pushing for torture in the NSC Principals, the White House, and Congress. These persons have a stake in Americans not being aware of what they really did and also in not having what they did ? whether Democrat or Republican ? brought out for the world to see. I would even wager that there are leaders or former leaders of other countries that helped us who do not want to see their efforts to support torture come out in the public.

But so what for the egos and reputations of these people? They besmirched their reputations by putting torture in place, by perverting our soldiers to do their bidding, and then letting the grunts at the bottom take the fall when the Abu Ghraib scandal erupted.

They are perfectly willing to instrumentalize anything, anything to prevent themselves from being prosecuted. Do not let yourself be kept in the dark. Ask for light to be brought in the cold brilliance of a court room. It may not be good politics for this or that administration, but it would be a good thing for America. When it comes out we will all know who was quiet and who took a stand against torture. And that is the choice each American has to make when the forces are attempting to spin the problem into something else so that we sweep this all under the rug.

This is not going under a rug. Not if I can help it.


Benjamin Davis is a professor at the University of Toledo College of Law
]]> Japanese Whaling: When Diplomacy Fails, Call the ICJ http://jurist.law.pitt.edu/forumy/2010/03/japanese-whaling-when-diplomacy-fails.php JURIST Guest Columnist Don Rothwell of Australian National University College of Law says that in the context of unpromising diplomatic negotiations between Japan and Australia with regard to Japanese whaling in the Southern Ocean area, the Australian government will likely be left with no choice but to file suit against Japan in the International Court of Justice....

After more than 20 years of diplomatic confrontation over Japan?s Southern Ocean whaling program, Australia has finally set a deadline for the Japanese to cease all whaling by the start of the 2010-11 whaling season or otherwise prepare to front up to the International Court of Justice (ICJ). Australia?s position was outlined by Prime Minister Kevin Rudd when on 19 February he stated on national television that ?what we?re putting to the Japanese is to take where they are now, which is the slaughter of some hundreds of whales each year and reduce that to zero. If we don?t get that as a diplomatic agreement ? we?ll be going to the International Court of Justice.? Rudd set the deadline for a Japanese reduction of the whale catch to zero by November 2010, just before the start of the annual Japanese Southern Ocean whaling season.

How has it come to this? To a degree, the seeds for the current dispute were sown in 1977 when the Liberal Coalition Government of Malcom Fraser took the then courageous step of banning all commercial whaling in Australian waters. Australia then commenced an international campaign alongside other conservation minded countries to halt commercial whaling and found success in the International Whaling Commission which endorsed a moratorium on commercial whaling that took effect in 1985-86. In response Japan commenced its first scientific whaling program in the Southern Ocean ? known as JARPA ? which ran until 2005 and which focused on an annual take of between 300-450 minke whales. For the 2005-06 Antarctic season, Japan announced it was commencing JARPA II which effectively doubled the annual take of whales to 950 including minke whales and a small number of threatened and endangered fin and humpback whales. JAPRA II became operational from the 2007-08 season and whilst the take of humpbacks was suspended as a result of diplomatic intervention by the US, hunting for minke and fin whales has continued.

Maintaining the moratorium on commercial whaling has virtually became a bipartisan article of faith for Australian governments since 1986, and while Iceland and Norway have sought to avoid the ban, Japan has come under particular scrutiny because its Southern Ocean whaling is effectively seen as being in Australia?s backyard. The declaration of an Australian Whale Sanctuary, which prohibits whaling out to 200 miles from the mainland, offshore islands, and the Australian Antarctic Territory, has given the issue further prominence. Notwithstanding a 2008 Australian Federal Court ruling that Japan?s actions were illegal under Australian law, the Japanese have defied the court orders insisting that as they do not recognize Australia?s Antarctic claim, they are not bound to respect Australian law. The Rudd government, not wanting to risk a challenge to Australian sovereignty over Antarctica, has not actively pursued enforcement of these court orders.

In response to these developments, the International Fund for Animal Welfare (IFAW) commissioned several legal advices which were provided first to the Howard and then to the Rudd government outlining international legal arguments which could be mounted to halt the Japanese whaling program. At the core of these legal opinions was that Japan?s interpretation of the 1946 International Convention for the Regulation of Whaling allowing for ?special permit? scientific research whaling was an abuse of right and inconsistent with Article 8 of the Convention. If the ICJ option was pursued it was recommended that Australia first seek provisional measures to immediately halt the Japanese hunt until such time as the court rules on the merits.

The election of the Rudd Labor government in November 2007 brought great expectations that Australia would pursue these legal options; however, diplomatic options were initially favored. Mindful perhaps of the implications for the future of the International Whaling Commission, Australia brought forward an ambitious reform agenda seeking to place significant constraints on the unilateral special permit Japanese whaling program. At the 2008 IWC meeting this agenda gained traction, but since then has become bogged down in endless diplomatic wrangling. A March 2010 IWC inter-sessional meeting planned for Florida may provide some indication as to where this reform agenda is heading, but Prime Minister Rudd?s recent comments suggest the Australian government has had enough of Japan?s failure to engage in this process in good faith. Given the nature of IWC politics and procedure, the June 2010 IWC annual meeting in Morocco looms as the decisive moment for assessing whether a diplomatic breakthrough is possible.

Japan?s Foreign Minister, Katsuya Okada, recently visited Australia for bilateral talks. There was a polite agreement-to-disagree over whaling and a commitment from both governments to try and ensure that the whaling dispute would not derail what are otherwise excellent bilateral relations. Okada said that Japan seeks ?a diplomatic solution to this issue through understanding of culture and position of each party?. However, these statements fail to appreciate that Japan?s actions on whaling run counter to the spirit of a global moratorium on commercial whaling, and its JARPA II program has only heightened suspicions that Japan is actually engaging in a form of commercial and not scientific whaling. It is beginning to look increasingly likely that Australia will finally call Japan?s bluff and politely say ?see you in court.?


Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. In November 2006 he chaired the Report of the Sydney Panel of Independent International Legal Experts on Japan?s Special Permit (?Scientific?) Whaling Under International Law, and in November 2008 chaired the Canberra Panel addressing the same issue.
2010-03-03T09:38:00-05:00 2010-03-10T10:42:00-05:00 Don Rothwell of Australian National University College of Law says that in the context of unpromising diplomatic negotiations between Japan and Australia with regard to Japanese whaling in the Southern Ocean area, the Australian government will likely be left with no choice but to file suit against Japan in the International Court of Justice....

After more than 20 years of diplomatic confrontation over Japan?s Southern Ocean whaling program, Australia has finally set a deadline for the Japanese to cease all whaling by the start of the 2010-11 whaling season or otherwise prepare to front up to the International Court of Justice (ICJ). Australia?s position was outlined by Prime Minister Kevin Rudd when on 19 February he stated on national television that ?what we?re putting to the Japanese is to take where they are now, which is the slaughter of some hundreds of whales each year and reduce that to zero. If we don?t get that as a diplomatic agreement ? we?ll be going to the International Court of Justice.? Rudd set the deadline for a Japanese reduction of the whale catch to zero by November 2010, just before the start of the annual Japanese Southern Ocean whaling season.

How has it come to this? To a degree, the seeds for the current dispute were sown in 1977 when the Liberal Coalition Government of Malcom Fraser took the then courageous step of banning all commercial whaling in Australian waters. Australia then commenced an international campaign alongside other conservation minded countries to halt commercial whaling and found success in the International Whaling Commission which endorsed a moratorium on commercial whaling that took effect in 1985-86. In response Japan commenced its first scientific whaling program in the Southern Ocean ? known as JARPA ? which ran until 2005 and which focused on an annual take of between 300-450 minke whales. For the 2005-06 Antarctic season, Japan announced it was commencing JARPA II which effectively doubled the annual take of whales to 950 including minke whales and a small number of threatened and endangered fin and humpback whales. JAPRA II became operational from the 2007-08 season and whilst the take of humpbacks was suspended as a result of diplomatic intervention by the US, hunting for minke and fin whales has continued.

Maintaining the moratorium on commercial whaling has virtually became a bipartisan article of faith for Australian governments since 1986, and while Iceland and Norway have sought to avoid the ban, Japan has come under particular scrutiny because its Southern Ocean whaling is effectively seen as being in Australia?s backyard. The declaration of an Australian Whale Sanctuary, which prohibits whaling out to 200 miles from the mainland, offshore islands, and the Australian Antarctic Territory, has given the issue further prominence. Notwithstanding a 2008 Australian Federal Court ruling that Japan?s actions were illegal under Australian law, the Japanese have defied the court orders insisting that as they do not recognize Australia?s Antarctic claim, they are not bound to respect Australian law. The Rudd government, not wanting to risk a challenge to Australian sovereignty over Antarctica, has not actively pursued enforcement of these court orders.

In response to these developments, the International Fund for Animal Welfare (IFAW) commissioned several legal advices which were provided first to the Howard and then to the Rudd government outlining international legal arguments which could be mounted to halt the Japanese whaling program. At the core of these legal opinions was that Japan?s interpretation of the 1946 International Convention for the Regulation of Whaling allowing for ?special permit? scientific research whaling was an abuse of right and inconsistent with Article 8 of the Convention. If the ICJ option was pursued it was recommended that Australia first seek provisional measures to immediately halt the Japanese hunt until such time as the court rules on the merits.

The election of the Rudd Labor government in November 2007 brought great expectations that Australia would pursue these legal options; however, diplomatic options were initially favored. Mindful perhaps of the implications for the future of the International Whaling Commission, Australia brought forward an ambitious reform agenda seeking to place significant constraints on the unilateral special permit Japanese whaling program. At the 2008 IWC meeting this agenda gained traction, but since then has become bogged down in endless diplomatic wrangling. A March 2010 IWC inter-sessional meeting planned for Florida may provide some indication as to where this reform agenda is heading, but Prime Minister Rudd?s recent comments suggest the Australian government has had enough of Japan?s failure to engage in this process in good faith. Given the nature of IWC politics and procedure, the June 2010 IWC annual meeting in Morocco looms as the decisive moment for assessing whether a diplomatic breakthrough is possible.

Japan?s Foreign Minister, Katsuya Okada, recently visited Australia for bilateral talks. There was a polite agreement-to-disagree over whaling and a commitment from both governments to try and ensure that the whaling dispute would not derail what are otherwise excellent bilateral relations. Okada said that Japan seeks ?a diplomatic solution to this issue through understanding of culture and position of each party?. However, these statements fail to appreciate that Japan?s actions on whaling run counter to the spirit of a global moratorium on commercial whaling, and its JARPA II program has only heightened suspicions that Japan is actually engaging in a form of commercial and not scientific whaling. It is beginning to look increasingly likely that Australia will finally call Japan?s bluff and politely say ?see you in court.?


Donald R. Rothwell is Professor of International Law at the ANU College of Law, Australian National University. In November 2006 he chaired the Report of the Sydney Panel of Independent International Legal Experts on Japan?s Special Permit (?Scientific?) Whaling Under International Law, and in November 2008 chaired the Canberra Panel addressing the same issue.
]]> Learning from Toyota's Troubles - Where's the Board? http://jurist.law.pitt.edu/forumy/2010/02/learning-from-toyotas-troubles-wheres.php JURIST Guest Columnist Bruce Aronson of Creighton University School of Law says that Japanese automobile manufacturer Toyota's current safety crisis - now the subject of Congressional hearings - should prompt the company to address its seriously flawed system of governance more than just its public image....

The next phase in Toyota?s crisis will be the appearance of the President of Toyota Motor Corporation, Akio Toyoda, before the House Committee on Oversight and Government Reform on February 24th.

His message will likely reflect an opinion he published in the Washington Post on February 9th entitled ?Toyota?s Plan to Repair its Public Image.?

In it he outlines a number of steps he is taking to address Toyota?s current crisis, including internal and external reviews of operations and quality controls, more vigorous investigation of consumer complaints, more effective internal sharing of information, and better communications with regulators.

Conspicuously absent from this list of worthy measures is any mention of the role of the board of directors in corporate governance. The structure and function of a typical Japanese corporate board reinforces the penchant for corporate secrecy in Japan, which is often cited as a cause of Toyota?s problems.

In both the United States and Japan, the board of directors has a legally mandated function to ensure a corporation?s compliance with law. In both countries, case law provides that directors have a duty of oversight?as part of their fiduciary duties owed to the corporation and its shareholders?to establish and monitor an information and reporting system designed to ensure such compliance. In the United States the duty of oversight in Delaware stems from the well-known Caremark decision, while in Japan it results from a shareholder derivative suit related to the $1.1 billion trading loss scandal in Daiwa Bank?s New York branch in 1995 (see my law review article analyzing this case and its impact in Japan). Statutes in both countries also provide for broader systems of internal controls. In this case Toyota?s systems failed badly.

In Japan the legal duty of oversight often clashes with the traditional structure of Japanese boards?large, hierarchical boards in which directors are all insiders and retain ?line? management responsibilities. As a result, any problem can appear to be limited to the director(s) ?in charge? of a particular area despite the common fiduciary duty owed by each director.

The Toyota case is particularly interesting because Toyota has been held out in Japan as the prime example of the strength of this ?traditional? system of Japanese corporate governance. This system relies on competition in product markets, team production alliances with suppliers, and ?main banks? to monitor the performance of corporate management, as opposed to ?Western? approaches such as independent directors and a market for corporate control.

A ?Western? approach appeared in Japan in 2002 as part of an ongoing debate on reform of corporate governance following Japan?s ?lost decade? of the 1990s. An amendment to Japan?s corporate law at that time provided Japanese companies with an option to replace their German-inspired, traditional positions of representative director (a director chosen by the board to represent the corporation, much like a president) and internal corporate auditor (elected by shareholders to monitor directors? performance) with an ?American-style? system of executive officers and board committees with independent directors. Not many Japanese companies have adopted this new system, although the number is slowly increasing.

Until recently the Japanese often contrasted the success of Toyota, the champion of traditional Japanese governance, with the poor performance of Sony, which adopted the ?American-style? board committee system and now has a foreigner as its CEO. This popular comparison was always somewhat exaggerated. For example, in 2003 Toyota modified its system through the introduction of ?non-board managing officers? and a reduction in the number of directors on its board (from over 40 to 29). However, even today every area of the company is represented by a senior manager on the board of directors and there are no outside directors. Given Toyota?s current problems and its prominence, it will be interesting to see if other Japanese companies will now reconsider this traditional system and incorporate a greater element of independent monitoring of management.

This is not to suggest that the apparent downfall of Toyota condemns the entire system of Japanese corporate governance. Every system has its corporate scandals. The result of scandals such as Enron in the United States has been an even greater emphasis on independent directors in the Sarbanes-Oxley Act and elsewhere. Such measures were not effective in preventing new scandals, such as those accompanying the financial crisis of 2008. For example, one oft-cited weakness at Citigroup was the board?s lack of industry expertise and experience, and its resulting inability to monitor traders? risk management practices concerning complex financial products.

Nevertheless, Toyota?s response to its current troubles is striking because it has maintained its rather narrow emphasis on manufacturing quality and production issues in the face of a full-fledged crisis. A problem of this magnitude is not simply a matter of a technical fix or of repairing Toyota?s public image. There were also significant flaws in Toyota?s governance system. Perhaps Mr. Toyoda and his colleagues should also consider a plan for a greater role of the board of directors, compliance with law, and corporate governance issues within ?the Toyota Way.?

The House Oversight Committee might even be interested in hearing about it.



Bruce Aronson is Associate Professor at Creighton University School of Law and was formerly a practicing attorney who represented Japanese clients.
 2010-02-23T07:13:00-05:00 2010-03-10T10:42:00-05:00 Bruce Aronson of Creighton University School of Law says that Japanese automobile manufacturer Toyota's current safety crisis - now the subject of Congressional hearings - should prompt the company to address its seriously flawed system of governance more than just its public image....

The next phase in Toyota?s crisis will be the appearance of the President of Toyota Motor Corporation, Akio Toyoda, before the House Committee on Oversight and Government Reform on February 24th.

His message will likely reflect an opinion he published in the Washington Post on February 9th entitled ?Toyota?s Plan to Repair its Public Image.?

In it he outlines a number of steps he is taking to address Toyota?s current crisis, including internal and external reviews of operations and quality controls, more vigorous investigation of consumer complaints, more effective internal sharing of information, and better communications with regulators.

Conspicuously absent from this list of worthy measures is any mention of the role of the board of directors in corporate governance. The structure and function of a typical Japanese corporate board reinforces the penchant for corporate secrecy in Japan, which is often cited as a cause of Toyota?s problems.

In both the United States and Japan, the board of directors has a legally mandated function to ensure a corporation?s compliance with law. In both countries, case law provides that directors have a duty of oversight?as part of their fiduciary duties owed to the corporation and its shareholders?to establish and monitor an information and reporting system designed to ensure such compliance. In the United States the duty of oversight in Delaware stems from the well-known Caremark decision, while in Japan it results from a shareholder derivative suit related to the $1.1 billion trading loss scandal in Daiwa Bank?s New York branch in 1995 (see my law review article analyzing this case and its impact in Japan). Statutes in both countries also provide for broader systems of internal controls. In this case Toyota?s systems failed badly.

In Japan the legal duty of oversight often clashes with the traditional structure of Japanese boards?large, hierarchical boards in which directors are all insiders and retain ?line? management responsibilities. As a result, any problem can appear to be limited to the director(s) ?in charge? of a particular area despite the common fiduciary duty owed by each director.

The Toyota case is particularly interesting because Toyota has been held out in Japan as the prime example of the strength of this ?traditional? system of Japanese corporate governance. This system relies on competition in product markets, team production alliances with suppliers, and ?main banks? to monitor the performance of corporate management, as opposed to ?Western? approaches such as independent directors and a market for corporate control.

A ?Western? approach appeared in Japan in 2002 as part of an ongoing debate on reform of corporate governance following Japan?s ?lost decade? of the 1990s. An amendment to Japan?s corporate law at that time provided Japanese companies with an option to replace their German-inspired, traditional positions of representative director (a director chosen by the board to represent the corporation, much like a president) and internal corporate auditor (elected by shareholders to monitor directors? performance) with an ?American-style? system of executive officers and board committees with independent directors. Not many Japanese companies have adopted this new system, although the number is slowly increasing.

Until recently the Japanese often contrasted the success of Toyota, the champion of traditional Japanese governance, with the poor performance of Sony, which adopted the ?American-style? board committee system and now has a foreigner as its CEO. This popular comparison was always somewhat exaggerated. For example, in 2003 Toyota modified its system through the introduction of ?non-board managing officers? and a reduction in the number of directors on its board (from over 40 to 29). However, even today every area of the company is represented by a senior manager on the board of directors and there are no outside directors. Given Toyota?s current problems and its prominence, it will be interesting to see if other Japanese companies will now reconsider this traditional system and incorporate a greater element of independent monitoring of management.

This is not to suggest that the apparent downfall of Toyota condemns the entire system of Japanese corporate governance. Every system has its corporate scandals. The result of scandals such as Enron in the United States has been an even greater emphasis on independent directors in the Sarbanes-Oxley Act and elsewhere. Such measures were not effective in preventing new scandals, such as those accompanying the financial crisis of 2008. For example, one oft-cited weakness at Citigroup was the board?s lack of industry expertise and experience, and its resulting inability to monitor traders? risk management practices concerning complex financial products.

Nevertheless, Toyota?s response to its current troubles is striking because it has maintained its rather narrow emphasis on manufacturing quality and production issues in the face of a full-fledged crisis. A problem of this magnitude is not simply a matter of a technical fix or of repairing Toyota?s public image. There were also significant flaws in Toyota?s governance system. Perhaps Mr. Toyoda and his colleagues should also consider a plan for a greater role of the board of directors, compliance with law, and corporate governance issues within ?the Toyota Way.?

The House Oversight Committee might even be interested in hearing about it.



Bruce Aronson is Associate Professor at Creighton University School of Law and was formerly a practicing attorney who represented Japanese clients.
]]> SCOTUS Memo: Challenging the 'Material Support' Laws http://jurist.law.pitt.edu/forumy/2010/02/scotus-memo-challenging-material.php JURIST Special Guest Columnists Sharon Bradford Franklin, senior counsel at the Constitution Project, and Karen Bloom, legal fellow with the Constitution Project, say that the US Supreme Court's decision in the upcoming Holder v. Humanitarian Law Project case challenging the constitutionality of laws prohibiting ?material support? to terrorist groups may have serious implications for our First Amendment protections....

Would you consider any of the following to be criminal acts: advocating non-violent means of resolving conflicts, teaching English, educating a group about its humanitarian obligations, or providing legal services?

They might be, if the U.S. Supreme Court upholds the current form of federal laws prohibiting ?material support? to terrorist groups. On February 23rd, the Court is scheduled to hear oral argument in Holder v. Humanitarian Law Project, a case which challenges the constitutionality of certain provisions of these laws. Under those provisions, it is a criminal act to provide services, training, expert advice or assistance, or personnel to groups the government has designated as ?terrorist.?

Although the material support statutes provide an important counter-terrorism tool, the existing law is so broad that the government has essentially maintained that all acts in support of designated organizations further their terrorist ends and are impermissible. As such, even humanitarian organizations? attempts to convince the designated groups to abandon violent tactics in pursuit of peace could be found to violate the laws.

In addition to being vague and over-broad, the ?material support? laws also run afoul of the First Amendment because they restrict association rights and discriminate between types of speech. For example, providing religious materials (even if they are intended to further terrorist activity) is exempted from the prohibitions, but all provision of political aid (even if it is designed to counter-terrorism and promote peace) is prohibited.

The district court and Court of Appeals that heard this case on its way to the Supreme Court recognized the constitutional problems with the ?material support? laws. Both courts ruled that parts of the ?material support? laws are unconstitutional in certain contexts because they could cover activities protected by the First Amendment.

Nevertheless, the government maintains that the broad prohibition is necessary to its counter-terrorism efforts. Without question, cutting off support for terrorist activity is an essential part of the U.S.?s counter-terrorism strategy. Our government must have the tools needed to apprehend and punish those who work to facilitate and enable acts of terrorism, not just terrorist leaders. However, in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms.

Moreover, criminalizing even attempts to discourage the terrorist activities of designated groups not only violates the Constitution, but is counter-productive. Outlawing the very advocacy that is most likely to neutralize the threat of groups designated as ?terrorist? undermines, rather than advancing, our counter-terrorism objectives.

To address these issues, late last year the Constitution Project?s bipartisan Liberty and Security Committee proposed a series of reforms to the ?material support? laws that would better tailor them to our counter-terrorism objectives and would ensure that they do not violate fundamental constitutional rights. The consensus recommendations of this Committee, which is composed of prominent policy experts, former government officials, and legal scholars from across the political spectrum, are contained in its report, Reforming the Material Support Laws: Constitutional Concerns Presented by Prohibitions on Material Support to ?Terrorist Organizations.?

The Committee, among other proposals, called on Congress to (1) provide that pure speech may be punished only if it intended to further illegal conduct, and (2) exempt from the definition of ?material support? humanitarian aid items such as medical services, civilian public health services and?if provided to noncombatants?food, water, clothing and shelter. Based upon this report, the Constitution Project filed an amicus brief in the Supreme Court in the Humanitarian Law Project case, arguing that the challenged provisions of the material support statute chill free speech and association in violation of the First Amendment.

The Committee?s proposals would go a long way toward making clear that counter-terrorism initiatives must not overstep constitutional restrictions and to ensure that the ?material support? laws do not infringe on First Amendment rights. As the Constitution Project urged in its amicus brief, the Court should strike down the challenged provisions as unconstitutional. And hopefully Congress will soon revisit and revise the ?material support? laws to address the remaining constitutional flaws not at issue in the Humanitarian Law Project case.

Sharon Bradford Franklin is senior counsel at the Constitution Project in Washington DC. Karen Bloom is a legal fellow with the Project.
 2010-02-22T12:37:00-05:00 2010-03-10T10:42:00-05:00 Constitution Project, and Karen Bloom, legal fellow with the Constitution Project, say that the US Supreme Court's decision in the upcoming Holder v. Humanitarian Law Project case challenging the constitutionality of laws prohibiting ?material support? to terrorist groups may have serious implications for our First Amendment protections....

Would you consider any of the following to be criminal acts: advocating non-violent means of resolving conflicts, teaching English, educating a group about its humanitarian obligations, or providing legal services?

They might be, if the U.S. Supreme Court upholds the current form of federal laws prohibiting ?material support? to terrorist groups. On February 23rd, the Court is scheduled to hear oral argument in Holder v. Humanitarian Law Project, a case which challenges the constitutionality of certain provisions of these laws. Under those provisions, it is a criminal act to provide services, training, expert advice or assistance, or personnel to groups the government has designated as ?terrorist.?

Although the material support statutes provide an important counter-terrorism tool, the existing law is so broad that the government has essentially maintained that all acts in support of designated organizations further their terrorist ends and are impermissible. As such, even humanitarian organizations? attempts to convince the designated groups to abandon violent tactics in pursuit of peace could be found to violate the laws.

In addition to being vague and over-broad, the ?material support? laws also run afoul of the First Amendment because they restrict association rights and discriminate between types of speech. For example, providing religious materials (even if they are intended to further terrorist activity) is exempted from the prohibitions, but all provision of political aid (even if it is designed to counter-terrorism and promote peace) is prohibited.

The district court and Court of Appeals that heard this case on its way to the Supreme Court recognized the constitutional problems with the ?material support? laws. Both courts ruled that parts of the ?material support? laws are unconstitutional in certain contexts because they could cover activities protected by the First Amendment.

Nevertheless, the government maintains that the broad prohibition is necessary to its counter-terrorism efforts. Without question, cutting off support for terrorist activity is an essential part of the U.S.?s counter-terrorism strategy. Our government must have the tools needed to apprehend and punish those who work to facilitate and enable acts of terrorism, not just terrorist leaders. However, in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms.

Moreover, criminalizing even attempts to discourage the terrorist activities of designated groups not only violates the Constitution, but is counter-productive. Outlawing the very advocacy that is most likely to neutralize the threat of groups designated as ?terrorist? undermines, rather than advancing, our counter-terrorism objectives.

To address these issues, late last year the Constitution Project?s bipartisan Liberty and Security Committee proposed a series of reforms to the ?material support? laws that would better tailor them to our counter-terrorism objectives and would ensure that they do not violate fundamental constitutional rights. The consensus recommendations of this Committee, which is composed of prominent policy experts, former government officials, and legal scholars from across the political spectrum, are contained in its report, Reforming the Material Support Laws: Constitutional Concerns Presented by Prohibitions on Material Support to ?Terrorist Organizations.?

The Committee, among other proposals, called on Congress to (1) provide that pure speech may be punished only if it intended to further illegal conduct, and (2) exempt from the definition of ?material support? humanitarian aid items such as medical services, civilian public health services and?if provided to noncombatants?food, water, clothing and shelter. Based upon this report, the Constitution Project filed an amicus brief in the Supreme Court in the Humanitarian Law Project case, arguing that the challenged provisions of the material support statute chill free speech and association in violation of the First Amendment.

The Committee?s proposals would go a long way toward making clear that counter-terrorism initiatives must not overstep constitutional restrictions and to ensure that the ?material support? laws do not infringe on First Amendment rights. As the Constitution Project urged in its amicus brief, the Court should strike down the challenged provisions as unconstitutional. And hopefully Congress will soon revisit and revise the ?material support? laws to address the remaining constitutional flaws not at issue in the Humanitarian Law Project case.

Sharon Bradford Franklin is senior counsel at the Constitution Project in Washington DC. Karen Bloom is a legal fellow with the Project.
]]> The Yoo/Bybee Report: Let a Jury Decide http://jurist.law.pitt.edu/forumy/2010/02/yoobybee-report-let-jury-decide.php JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law says that the guilt or innocence of "enhanced interrogation" memo writers John Yoo and Jay Bybee should be determined in state or federal court by a jury of their peers, rather than under the forgiving gaze of the Office of Professional Responsibility....

The long awaited Office of Professional Responsibility (OPR) report on Jay Bybee and John Yoo was released yesterday. In the long cover memo, the US Department of Justice (DOJ) reviewer went to great lengths to explain his decision not to support the intentional misconduct (for Yoo) and misconduct (for Bybee) recommendations of the OPR and not to make a referral to the Bar Associations. At the same time, he leaves the matter up to the Bar Associations to decide whether they should take up the matter.

As happens, I was recently at a National Security Court conference held here at the University of Toledo College of Law at which torture was brought up and discussed. We were favored with the presence of Mr. John Rizzo, former Acting General Counsel of the CIA who just retired after 34 years of service. When questioned on the repeated water-boarding of Khalid Sheik Mohammed, Mr. Rizzo presented the matter (I am paraphrasing) as being one where the people in the agency said that they thought they needed to do these things and that it may be morally wrong but this was the situation.

I spoke from the floor saying that the problem was that some smart lawyers were made to reinterpret various laws and treaties and that based on this we got into this huge mess, and now some people are trying to deal with that by creating a new national security court as a new solution to the mess that has been created. This is an old game with the United States government. Sometimes it is followed by an apology 50 years later or so. I suggested the following plan of action: 1) criminally prosecute the torturers; 2) bring all of these cases we want to try in Article III courts which provide us with transparency; and 3) after we clean that up- look at what we need to do to change. I was met with the view that this is an old argument and that we should move beyond that.

I am just a citizen and I am exercising my little bit of sovereignty in a representational democracy ? something I like to call ?The Sparkle of Sovereignty.? I am even writing a book about that idea.

My view is that a wide variety of groups of concerned American citizens exercising their respective sparkles of sovereignty should refer the OPR report immediately to the relevant bar associations to determine whether there were ethical violations by Yoo and Bybee.

Beyond that, here is a radical concept for all these DOJ types: let a jury decide. I trust in twelve American jurors weighing the evidence competently presented by a US Attorney, and Yoo and Bybee being represented by competent defense attorneys in 1) an Article III court based on a federal prosecution by a special prosecutor or a state prosecutor pursuant to a federal officer removal act proceeding from state court or 2) in a state court to be able to examine whether these persons have the requisite mens rea and actus reus to have violated federal law and/or state law with regard to torture.

I think it is important in our system of separation of powers and federalism to provide the double security to the protection of the rights of the people so cherished by James Madison in the Federalist Papers. Madison wrote:

?In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.?

Federalist No. 51 (James Madison)

Within the federal government, it appears clear that DOJ officials tend to have a terrible time handling the pressure as they move up the hierarchy. As one person quoted in the report says, ?we freaked out.? As an American citizen, I do not want the people who are subject to the public trust ?freaking out? like some fifth grader. During 9/11 I was teaching a class and while there were lots of students who ?freaked out,? one of the hallmarks of that class during the attack was a former Navy man who was an older fellow who said that the first thing we have to do is go back to first principles of who we are. That, I would submit, is the kind of thinking we need to embrace. Not panic and hubris.

There is an effort in the OPR report to create space for what I will call the misfeasance at the top/malfeasance at the bottom game that I noted in my article Refluat Stercus. The passive voice of ?mistakes were made? ? a litany from former people at the top of the Executive and Legislative ? is one example of this game. Grunts at Abu Ghraib get court-martialed and the higher ups are just seen to have made ?errors of judgment?.

I would like a grand jury of American citizens to hear all the evidence and decide whether to issue an indictment. I would like, if such an indictment is issued, for these defendants and plenty of material witnesses (such as John Rizzo who is named in the OPR report at key junctures) to be heard under oath in a public court providing the kind of record of their statements that helps give meaning to important trials such as Nuremberg. And I would like a jury of their peers to decide on the innocence or guilt of these people?not just the lawyers?so we can have a decision that gives clear guidance as to whether these acts amounted to a crime. Why? So that the next time someone ?freaks out? because someone attacks us, when asked to do this kind of OLC memo, they will see a clear US precedent that says as clearly as possible what is a crime under our law. If that conviction fails, it also provides an opportunity to Congress to see whether it should amend out statutes to better capture torture. And, it would provide for those who have entered into international obligations with the United States an opportunity to see whether we are trying to extract ourselves from our international obligations in our compound republic in the manner that our jurisdiction to enforce, prescribe, and adjudicate is put together.

Also, under the doctrine of complementarity, it reduces the possibility of similar cases happening about Americans being brought in other countries. I suspect that even as we speak the OPR report has been sent to the Spanish prosecutor prosecuting the U.S. lawyers who helped orchestrate the torture by the United States. Let?s clean our very dirty laundry at home.

I think this is important because it is clear that whatever the administration, there is a clear manifest need for a criminal prosecution to help the high-level civilians and generals of our government in the past, now and in the future understand that ?word games? of reinterpretation on something as serious as torture ? will get you into a jail cell. Especially now that we know that we were lied to about some detainees committing suicide down at Gitmo ? they were murdered per Scott Horton?s article out yesterday in Harper?s. Enough is enough.


Benjamin Davis is a professor at the University of Toledo College of Law
 2010-02-21T04:03:00-05:00 2010-03-10T10:42:00-05:00 Benjamin Davis of the University of Toledo College of Law says that the guilt or innocence of "enhanced interrogation" memo writers John Yoo and Jay Bybee should be determined in state or federal court by a jury of their peers, rather than under the forgiving gaze of the Office of Professional Responsibility....

The long awaited Office of Professional Responsibility (OPR) report on Jay Bybee and John Yoo was released yesterday. In the long cover memo, the US Department of Justice (DOJ) reviewer went to great lengths to explain his decision not to support the intentional misconduct (for Yoo) and misconduct (for Bybee) recommendations of the OPR and not to make a referral to the Bar Associations. At the same time, he leaves the matter up to the Bar Associations to decide whether they should take up the matter.

As happens, I was recently at a National Security Court conference held here at the University of Toledo College of Law at which torture was brought up and discussed. We were favored with the presence of Mr. John Rizzo, former Acting General Counsel of the CIA who just retired after 34 years of service. When questioned on the repeated water-boarding of Khalid Sheik Mohammed, Mr. Rizzo presented the matter (I am paraphrasing) as being one where the people in the agency said that they thought they needed to do these things and that it may be morally wrong but this was the situation.

I spoke from the floor saying that the problem was that some smart lawyers were made to reinterpret various laws and treaties and that based on this we got into this huge mess, and now some people are trying to deal with that by creating a new national security court as a new solution to the mess that has been created. This is an old game with the United States government. Sometimes it is followed by an apology 50 years later or so. I suggested the following plan of action: 1) criminally prosecute the torturers; 2) bring all of these cases we want to try in Article III courts which provide us with transparency; and 3) after we clean that up- look at what we need to do to change. I was met with the view that this is an old argument and that we should move beyond that.

I am just a citizen and I am exercising my little bit of sovereignty in a representational democracy ? something I like to call ?The Sparkle of Sovereignty.? I am even writing a book about that idea.

My view is that a wide variety of groups of concerned American citizens exercising their respective sparkles of sovereignty should refer the OPR report immediately to the relevant bar associations to determine whether there were ethical violations by Yoo and Bybee.

Beyond that, here is a radical concept for all these DOJ types: let a jury decide. I trust in twelve American jurors weighing the evidence competently presented by a US Attorney, and Yoo and Bybee being represented by competent defense attorneys in 1) an Article III court based on a federal prosecution by a special prosecutor or a state prosecutor pursuant to a federal officer removal act proceeding from state court or 2) in a state court to be able to examine whether these persons have the requisite mens rea and actus reus to have violated federal law and/or state law with regard to torture.

I think it is important in our system of separation of powers and federalism to provide the double security to the protection of the rights of the people so cherished by James Madison in the Federalist Papers. Madison wrote:

?In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.?

Federalist No. 51 (James Madison)

Within the federal government, it appears clear that DOJ officials tend to have a terrible time handling the pressure as they move up the hierarchy. As one person quoted in the report says, ?we freaked out.? As an American citizen, I do not want the people who are subject to the public trust ?freaking out? like some fifth grader. During 9/11 I was teaching a class and while there were lots of students who ?freaked out,? one of the hallmarks of that class during the attack was a former Navy man who was an older fellow who said that the first thing we have to do is go back to first principles of who we are. That, I would submit, is the kind of thinking we need to embrace. Not panic and hubris.

There is an effort in the OPR report to create space for what I will call the misfeasance at the top/malfeasance at the bottom game that I noted in my article Refluat Stercus. The passive voice of ?mistakes were made? ? a litany from former people at the top of the Executive and Legislative ? is one example of this game. Grunts at Abu Ghraib get court-martialed and the higher ups are just seen to have made ?errors of judgment?.

I would like a grand jury of American citizens to hear all the evidence and decide whether to issue an indictment. I would like, if such an indictment is issued, for these defendants and plenty of material witnesses (such as John Rizzo who is named in the OPR report at key junctures) to be heard under oath in a public court providing the kind of record of their statements that helps give meaning to important trials such as Nuremberg. And I would like a jury of their peers to decide on the innocence or guilt of these people?not just the lawyers?so we can have a decision that gives clear guidance as to whether these acts amounted to a crime. Why? So that the next time someone ?freaks out? because someone attacks us, when asked to do this kind of OLC memo, they will see a clear US precedent that says as clearly as possible what is a crime under our law. If that conviction fails, it also provides an opportunity to Congress to see whether it should amend out statutes to better capture torture. And, it would provide for those who have entered into international obligations with the United States an opportunity to see whether we are trying to extract ourselves from our international obligations in our compound republic in the manner that our jurisdiction to enforce, prescribe, and adjudicate is put together.

Also, under the doctrine of complementarity, it reduces the possibility of similar cases happening about Americans being brought in other countries. I suspect that even as we speak the OPR report has been sent to the Spanish prosecutor prosecuting the U.S. lawyers who helped orchestrate the torture by the United States. Let?s clean our very dirty laundry at home.

I think this is important because it is clear that whatever the administration, there is a clear manifest need for a criminal prosecution to help the high-level civilians and generals of our government in the past, now and in the future understand that ?word games? of reinterpretation on something as serious as torture ? will get you into a jail cell. Especially now that we know that we were lied to about some detainees committing suicide down at Gitmo ? they were murdered per Scott Horton?s article out yesterday in Harper?s. Enough is enough.


Benjamin Davis is a professor at the University of Toledo College of Law
]]> Pakistan: New 'Judges' Case' in the Making? http://jurist.law.pitt.edu/forumy/2010/02/pakistan-new-judges-case-in-making.php JURIST Guest Columnists Moeen Cheema of Australian National University College of Law and Shahzad Akbar, an advocate practicing at the Lahore High Court in Pakistan, say that since Pakistan President's Zardari's refusal to appoint judges to the Lahore High Court (LHC) seriously undermines the capacity of that key court to provide justice in human rights cases and is a matter of public importance, either the LHC or the country's Supreme Court may eventually direct the president to comply with the Supreme Court's recent holding in the "Judges' Case"....

The threat of an imminent ?clash" of the institutions of the state, the executive, and the judiciary appears to have materialized in Pakistan. The President, Asif Ali Zardari, and the Governor of Pakistan?s largest and most populous province of Punjab, Salmaan Taseer, are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court (LHC).

The president has refused Chief Justice Iftikhar Chaudhry's recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, popularly known as the Judges' Case, is being distorted and misquoted in order to justify the executive's refusal to appoint the judges.

In 1994, President Farooq Leghari, acting on the advice of Prime Minister Benzair Bhutto, appointed 20 judges to the LHC as well as acting chief justices to the LHC and the High Court of Sindh. This appointment of pro-government judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this context that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges' Case in 1996.

Article 177 of the Constitution states that: "The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice." In the Judges' Case the Supreme Court interpreted this provision to mean that while the president nominally has the power to appoint the chief justice of the Supreme Court, he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the President.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts "after consultation" with the Chief Justice of Pakistan, the Governor of the province and the Chief Justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the Governor. Again, it was held that the consultation with the chief justices is binding upon the President. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

As regards the appointment of the Chief Justices of the High Courts and the Supreme Court, it was held that the senior-most judge of that court has a legitimate expectation to be appointed to that position once it becomes vacant. However, the issue currently is very different from that taken up by the Supreme Court in the Judges' Case. Here the president's men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges' Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice, but it did not deal with the appointment of new judges to the Supreme Court, and it did not require the chief justices of the High Courts be elevated when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench examined the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments. Explaining the spirit of the Judges' Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority "is misconceived and travels beyond the parameters indicated in the Judges' Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court."

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words "the most senior of the other Judges" are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court's own words: "the absence of the words 'most senior' in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court."

Another argument which undermines the government's argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents of several such appointments to the Supreme Court.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and his opinion concerning the competence of an individual to serve as a judge is binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issues of seniority, suitability, and knowledge of law are areas which are to be judged by the chief justice.

In fairness, this is not the most suitable method in the world for making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Parliament if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historically the case, or the chief justice, as has been the situation after the Judges' Case. The latter is clearly preferable.

Given the weight of the precedents and the underlying principles, it should not surprise anyone when the Supreme Court quashes the notification of appointment to the Supreme Court issued by the President in contravention of Chief Justice Chaudhary?s advice. Furthermore, if the president and the governor are under the impression that they can stall the appointments of judges to the LHC indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is "a question of public importance with reference to the enforcement of any of the Fundamental Rights." Article 199(1)(c) empowers a High Court to "make an order giving such directions to any person or authority, including any government?as may be appropriate for the enforcement of any of the Fundamental Rights." Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court's direction.


Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.


Postscript: Contrary to Chief Justice Chaudhary's recommendation, President Asif Ali Zardari issued a notification on February 13 purporting to elevate Justice Khwaja Sharif (Chief Justice of Lahore High Court) as a judge of the Supreme Court and appointing Justice Saqib Nisar as Acting Chief Justice of Lahore High Court.However, both of the judges refused to accept the notification as valid. The Chief Justice of Pakistan, Iftikhar Chaudhary, immediately took suo moto notice of the palpably unconstitutional action of the President and constituted a 3-member bench that suspended the notifications. The government initially defended its actions but relented in the face of rising public pressure and criticism from the bar, opposition political parties, and the media. The government withdrew the notifications on February 17 and the Prime Minister agreed to make all judicial appointments in the Supreme Court and the High Courts according to the recommendations of the Chief Justice of Pakistan.
 2010-02-14T10:39:00-05:00 2010-03-10T10:42:00-05:00 Moeen Cheema of Australian National University College of Law and Shahzad Akbar, an advocate practicing at the Lahore High Court in Pakistan, say that since Pakistan President's Zardari's refusal to appoint judges to the Lahore High Court (LHC) seriously undermines the capacity of that key court to provide justice in human rights cases and is a matter of public importance, either the LHC or the country's Supreme Court may eventually direct the president to comply with the Supreme Court's recent holding in the "Judges' Case"....

The threat of an imminent ?clash" of the institutions of the state, the executive, and the judiciary appears to have materialized in Pakistan. The President, Asif Ali Zardari, and the Governor of Pakistan?s largest and most populous province of Punjab, Salmaan Taseer, are resisting the appointment of judges recommended by the chief justices of the Supreme Court and the Lahore High Court (LHC).

The president has refused Chief Justice Iftikhar Chaudhry's recommendation for the elevation of Justice Saqib Nisar, the second senior-most judge of the LHC, arguing that it is instead the current chief justice of the LHC who ought to be elevated to the Supreme Court. Until that issue is resolved, Governor Taseer appears determined to stall the appointment of judges against approximately 30 vacancies in the LHC on the recommendation of the current chief justice of the LHC. The historic judgment of the Supreme Court in the Al-jihad Trust Case, popularly known as the Judges' Case, is being distorted and misquoted in order to justify the executive's refusal to appoint the judges.

In 1994, President Farooq Leghari, acting on the advice of Prime Minister Benzair Bhutto, appointed 20 judges to the LHC as well as acting chief justices to the LHC and the High Court of Sindh. This appointment of pro-government judges was resented by all relevant stakeholders, including the Bar Councils around the country. It was in this context that petitions were filed and, finally, the issue was resolved in what we know popularly as the Judges' Case in 1996.

Article 177 of the Constitution states that: "The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the President after consultation with the Chief Justice." In the Judges' Case the Supreme Court interpreted this provision to mean that while the president nominally has the power to appoint the chief justice of the Supreme Court, he/she has no discretion in that matter and is obligated to appoint the senior-most judge in the Supreme Court to that post. The court also held that the consultation with the chief justice referred to in the constitutional provision is binding upon the President.

Likewise, Article 193 states that the president shall appoint the judges of the High Courts "after consultation" with the Chief Justice of Pakistan, the Governor of the province and the Chief Justice of the High Court of that province. In appointing the chief justices of the High Courts, the president shall only consult with the chief justice of the Supreme Court and the Governor. Again, it was held that the consultation with the chief justices is binding upon the President. If judicial independence is to be ensured, the executive ought to have no say in the choice of candidates for judicial positions.

As regards the appointment of the Chief Justices of the High Courts and the Supreme Court, it was held that the senior-most judge of that court has a legitimate expectation to be appointed to that position once it becomes vacant. However, the issue currently is very different from that taken up by the Supreme Court in the Judges' Case. Here the president's men are arguing that the senior-most judge of the High Court ought to be elevated to the Supreme Court. The Judges' Case laid down the principle of seniority for appointment of existing judges to the post of the chief justice, but it did not deal with the appointment of new judges to the Supreme Court, and it did not require the chief justices of the High Courts be elevated when a vacancy is created in the Supreme Court.

This specific issue was thoroughly discussed in the case of Supreme Court Bar Association through its President Hamid Khan vs. the Federation of Pakistan (2002) where, once again, a five-member bench examined the appointment of judges in the Supreme Court and the issue of seniority in the High Courts for such appointments. Explaining the spirit of the Judges' Case and subsequent precedents, the Supreme Court held that the contention that the chief justice of a High Court is entitled to be elevated to the Supreme Court due to seniority "is misconceived and travels beyond the parameters indicated in the Judges' Case. In our considered view, the scope of seniority and legitimate expectancy enunciated in those cases is restricted to the appointments of the Chief Justice of a High Court and the Chief Justice of Pakistan, and these issues neither apply nor can be extended to the appointment of Judges of the Supreme Court."

It was categorically stated that there is neither constitutional convention nor past practice to elevate the senior-most judges of a High Court to the Supreme Court. An interesting comparison was also drawn by the Supreme Court between Article 180 of the Constitution of Pakistan, which governs the appointments of acting chief justices of the Supreme Court and where the words "the most senior of the other Judges" are mentioned, and Article 177, which deals with the appointment of a Supreme Court judge and where such language is missing. In the Supreme Court's own words: "the absence of the words 'most senior' in Article 177 for appointment of Judges of the Supreme Court would show that the seniority of a Judge in the High Court is not a sine qua non for his appointment as a Judge of the Supreme Court."

Another argument which undermines the government's argument is that judges may be appointed directly from the bar and not from among the judges of the High Courts. Advocates with 15 years of practice and retired High Court judges may be appointed to the Supreme Court, and we have precedents of several such appointments to the Supreme Court.

The chief justice of the Supreme Court is the head of the judiciary and it is his prerogative to recommend judicial appointments according to the Constitution. His role in judicial appointment is central and his opinion concerning the competence of an individual to serve as a judge is binding upon the executive and the only reason that the executive may withhold an appointment recommended by him is where the governor or the president has adverse information concerning the character or conduct of a recommended candidate. The issues of seniority, suitability, and knowledge of law are areas which are to be judged by the chief justice.

In fairness, this is not the most suitable method in the world for making judicial appointments. For example, judicial appointments may be made upon the recommendation of an independent commission, as done in the UK, or after vetting by Parliament if the US model is followed. However, until the constitutional method for judicial appointments is changed there is a choice to be made between either granting the president a greater say in judicial appointments, as was historically the case, or the chief justice, as has been the situation after the Judges' Case. The latter is clearly preferable.

Given the weight of the precedents and the underlying principles, it should not surprise anyone when the Supreme Court quashes the notification of appointment to the Supreme Court issued by the President in contravention of Chief Justice Chaudhary?s advice. Furthermore, if the president and the governor are under the impression that they can stall the appointments of judges to the LHC indefinitely, they are mistaken. Article 184 empowers the Supreme Court to make an order of the same kind that the High Courts can issue pursuant to their writ jurisdiction if there is "a question of public importance with reference to the enforcement of any of the Fundamental Rights." Article 199(1)(c) empowers a High Court to "make an order giving such directions to any person or authority, including any government?as may be appropriate for the enforcement of any of the Fundamental Rights." Since the refusal to appoint judges to the LHC is seriously undermining the capacity of that court to provide justice in human rights cases and is a matter of public importance, either the LHC or the Supreme Court may eventually direct the president to comply with the Supreme Court's direction.


Moeen Cheema is an Associate Lecturer at the Australian National University's College of Law. Shahzad Akbar is an advocate practicing at the Lahore High Court and a visiting lecturer at the Islamic International University, Islamabad.


Postscript: Contrary to Chief Justice Chaudhary's recommendation, President Asif Ali Zardari issued a notification on February 13 purporting to elevate Justice Khwaja Sharif (Chief Justice of Lahore High Court) as a judge of the Supreme Court and appointing Justice Saqib Nisar as Acting Chief Justice of Lahore High Court.However, both of the judges refused to accept the notification as valid. The Chief Justice of Pakistan, Iftikhar Chaudhary, immediately took suo moto notice of the palpably unconstitutional action of the President and constituted a 3-member bench that suspended the notifications. The government initially defended its actions but relented in the face of rising public pressure and criticism from the bar, opposition political parties, and the media. The government withdrew the notifications on February 17 and the Prime Minister agreed to make all judicial appointments in the Supreme Court and the High Courts according to the recommendations of the Chief Justice of Pakistan.
]]> Torture as Foreign Policy: The Omar Khadr Decision http://jurist.law.pitt.edu/forumy/2010/02/torture-as-foreign-policy-omar-khadr.php JURIST Special Guest Columnist Gail Davidson, Executive Director of Lawyers Rights Watch Canada, says that the Supreme Court of Canada was simply wrong in taking the extraordinary step of denying Canadian Guantanamo detainee Omar Khadr the remedy ordered by the courts below ? the only remedy available ? based on the arbitrary power of the executive to conduct foreign affairs....

The decision of the Supreme Court of Canada in the Omar Khadr[1] case ? which implies that remedies to prevent torture and punish perpetrators are a privilege to be granted or withheld at the pleasure of the Prime Minister ? is wrong.

The Supreme Court of Canada confirmed that the government of Canada violated Omar Khadr?s rights under the Canadian Charter of Rights and Freedoms, that those violations continue, and that those violations contribute to his ongoing detention. The court was referring to the fact that officials from Canada?s Department of Foreign Affairs and International Trade (DFAIT) interrogated Omar Khadr at Guantanamo Bay and gave their interrogation records to Khadr?s U.S. captors after being told that U.S. officials had tortured Khadr (by severe sleep deprivation)[2] for three weeks to ?make him more amenable and willing to talk? to the Canadians and that he would be placed in isolation after the interrogation.

Ignoring the imperative international duties triggered by these appalling facts, the Supreme Court of Canada went on to rule it appropriate to leave ?it to the government to decide how best to respond??[3] The court set aside the 23 April 2009 order of the Federal Court of Canada ? confirmed by the Federal Court of Appeal on 14 August 2009 ? compelling the Prime Minister, the Minister of Foreign Affairs, the Commissioner of the RCMP, and the Director of CSIS to "?request that the United States return Mr. Khadr to Canada as soon as practicable."

The Federal Court order was in keeping with the decision made by the Canadian government in March 2009. In June 2008 the Committee struck to study the Omar Khadr case recommended to Parliament ??that the Government of Canada demand Omar Khadr?s release from U.S. custody at Guantanamo Bay to the custody of Canadian law enforcement officials as soon as practical.?[4] On 23 March 2009, Parliament voted by a majority to accept that recommendation, thereby directing the Prime Minister to act to secure Khadr?s release and repatriation.

In setting aside the lower court orders and overriding the will of Parliament, the court cited a need to respect the prerogative power of the executive to conduct foreign affairs, described as the ??arbitrary authority, which at any given time is legally left in the hand of the Crown??.

To arrive at this conclusion, the court relied on a text published in 1915: long before the prohibition of torture became a norm of jus cogens, a ?peremptory norm of general international law? from which no derogation is permitted; long before the ??use of torture?by state authorities?" had come to be regarded as an attack upon the international order[5]; long before the individual?s right to freedom from torture took precedence over the right of states to conduct their affairs free from interference by other states. Under current international law, the duties of states to enact and enforce effective remedies to prevent and punish torture are not subservient to any other domestic or international purpose or circumstance including ?comity? between states.

In taking the extraordinary step of denying Khadr the remedy ordered by the courts below ? the only remedy available ? based on the existence of an arbitrary power not supported by law, the Supreme Court of Canada was simply wrong. It was simply wrong for the court to conclude that characterizing a remedy for torture as a foreign affairs policy matter displaces the imperative legal duties under the Convention against Torture to take effective action. Prime Minister Harper cannot clothe himself with the power to do what is prohibited by international and Canadian law. By law, torture against a Canadian citizen must be remedied through investigation and prosecution of suspects. Obviously the victim ? in this case Khadr ? must be removed from the control of the perpetrators of crimes against him. Neither the Prime Minister nor ?government? has any ?residual? right to ?speak freely with a foreign state?[6] on the suspension or relaxation of the absolute prohibition against torture.[7] Torture can never be considered a legitimate act of state; neither can suspending or refusing remedies be legitimated as foreign policy.

The language used by the court to describe key facts and principles creates the erroneous impression that U.S. accusations against Omar Khadr are more serious than, and therefore take precedence over, the crimes the U.S. is known to have committed against him.

Here are examples of the misleading language used by the court in the Khadr judgment:

?frequent flyer program? is used to refer to the torture of Khadr by subjecting him to prolonged and severe sleep deprivation to enhance extraction of information by Canadian officials.

?trial? is used to refer to the military commissions process found by the U.S. Supreme Court to illegally violate the right to a fair trial by a ?regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.?

?war crimes? is used to describe charges against Khadr that have been challenged as illegitimate because they are: unknown to the laws of war; created after they are alleged to have been committed, for which reason prosecution is absolutely barred;[8] and inapplicable since as a child Khadr lacked the capacity to consent to involvement in war.

?the trial is proceeding? refers to a delay[9] of almost eight years - a delay that violates the right to be tried within a reasonable time under Canadian and U.S. law.[10] Were Khadr before a regularly constituted court, the prosecution would be stayed on the basis of that delay.

?government? is used to refer to Stephen Harper, the Commissioner of the RCMP, the Minister of Foreign Affairs and the Director of CSIS.[11]

?Mr. Khadr?s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated? refers to the most grave violations of Khadr?s rights to liberty[12]; due process[13]; freedom from torture and other cruel, inhuman and degrading treatment or punishment[14]; freedom from arbitrary imprisonment[15]; freedom from prosecution for ex post facto crimes; a fair trial; timely and confidential legal representation; determination of criminal charges by an impartial and independent tribunal; habeas corpus for determination of the legality of imprisonment and treatment during imprisonment; equality before the law and equal access to the protection of the law;[16] and, under the Convention on the Rights of the Child, to rehabilitation, education and re-integration into free society.

Finally, the Supreme Court of Canada decision in the Khadr case ignored the legal reality that without remedies there are no rights.[17] The Chief Justice of the Supreme Court of Canada has in the past observed that had freedom from torture and other basic rights been enforced, the Holocaust could not have occurred.[18]

By allowing the Prime Minister to refuse to take the actions required by law and approved by Parliament to stop violations of Omar Khadr?s rights, and by dubbing Mr. Harper?s inaction ?foreign affairs,? the Supreme Court of Canada has put the rights of us all at risk.


Gail Davidson is the founder and Executive Director of Lawyers Rights Watch Canada and the Chair and co-founder of Lawyers Against the War.



Notes

1. Prime Minister of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr, Supreme Court of Canada, January 29, 2010

2. Sleep deprivation used to extract information from a prisoner is torture according to a variety of authorities. UN experts, reviewing international law, confirmed in a 2006 report on Guantanamo Bay that sleep deprivation, even for several consecutive days, is torture. The U.S. Army Field Manual on Interrogation in force in 2004 listed sleep deprivation as a form of torture. The Canadian government publication, Torture & Abuse Awareness, lists the U.S. as one of the ten countries worldwide known to engage in torture and lists sleep deprivation as a form of torture.

3. ??in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K?s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.? Supra note 1 at para. 39.

4. OMAR KHADR Report of the Standing Committee on Foreign Affairs and International Development: Subcommittee on International Human Rights, June 2008, para. 3, page 6.

5. R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17, House of Lords. Lord Millet.

6. Supra, note 1 at para. 33.

7. Instruments that impose a mandatory duty to provide effective remedies against torture include the: Geneva Conventions; Rome Statute of the International Court; International Covenant on Civil and Criminal Rights; Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment; Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law; The Vienna Declaration and Programme of Action, articles 56 and 60; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

8. Freedom from ex post facto prosecutions is absolute and cannot be displaced by any authority under any
circumstances.

9. Factors contributing to the delay include: rulings by the U.S. Supreme Court that the military commissions are illegal; dismissal of the charges; non-disclosure by the prosecution; leaked documents indicating falsification of evidence by the U.S. military; the Pentagon sacking of the military ?Presiding Officer? in charge of the Khadr case; investigation of professional misconduct complaints against Khadr?s lead military attorney; a 120-day adjournment imposed by President Obama in January 2009 for a review the process; and a four month suspension imposed by the president in May 2009 to alter the military commissions.

10. The U.S. Constitution, art. VI, cl.2 guarantees a trial within a reasonable time, as does the Speedy Trial Act. In Canada this right is guaranteed by the Charter of Rights and Freedoms s. 11(b). The Supreme Court of Canada recently ruled that a two year delay violated Charter rights and that the appropriate remedy was to stay the prosecution. (R. v. Godin, 2009 SCC 26)

11. Supra note 4, a para. 3, page 6.

12. The right to liberty and not to be deprived thereof except in accordance with the principles of fundamental justice is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Universal Declaration of Human Rights.

13. Due Process rights, including rights to a lawyer, notice of charges and evidence, a fair trial before a competent and independent tribunal, habeas corpus, an appeal, the presumption of innocence are guaranteed by a number of Canadian statutes and international instruments binding on Canada, e.g., the Canadian Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; Third Geneva Convention; Crimes against Humanity and War Crimes Act; Convention on the Rights of the Child; Hague Conventions, Annex, art. 23(h).

14. Freedom from torture is a non-derogable right of all humankind that cannot be displaced by any circumstances, guaranteed by the Convention against Torture and Other Cruel and Inhuman Treatment or Punishment; the Criminal Code; the Crimes against Humanity and War Crimes Act; the Rome Statute of the International Court; the Geneva Conventions; the Convention on the Rights of the Child; and other laws binding on Canada and the U.S.

15. Freedom from arbitrary imprisonment is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the Third Geneva Convention; the Universal Declaration of Human Rights; and the Magna Carta.

16. Rights to equality before the law and equal access to protection by law and to legal remedies for the prevention and punishment of violations is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child

17. ?Our High Commissioner has reminded us that "Rights which are violated or ignored are rights in name only." It is in this spirit that we must abolish the culture of impunity. States that fail to prosecute human rights abusers are failing in their 'responsibility to protect'.? Canada?s International Human Rights Policy website (accessed 2 August 2005).

18. ?The most basic human rights are those guaranteed by the criminal law ? the right to life; to liberty; to freedom from arbitrary detention, abuse and torture?Rights, that had they been in place and in force, would have made impossible the atrocities of the holocaust.? The Right Honourable Beverley McLachlin P.C. Chief Justice of Canada, The Changing Face of International Criminal Law p.14.
 2010-02-11T00:29:00-05:00 2010-03-10T10:42:00-05:00 Lawyers Rights Watch Canada, says that the Supreme Court of Canada was simply wrong in taking the extraordinary step of denying Canadian Guantanamo detainee Omar Khadr the remedy ordered by the courts below ? the only remedy available ? based on the arbitrary power of the executive to conduct foreign affairs....

The decision of the Supreme Court of Canada in the Omar Khadr[1] case ? which implies that remedies to prevent torture and punish perpetrators are a privilege to be granted or withheld at the pleasure of the Prime Minister ? is wrong.

The Supreme Court of Canada confirmed that the government of Canada violated Omar Khadr?s rights under the Canadian Charter of Rights and Freedoms, that those violations continue, and that those violations contribute to his ongoing detention. The court was referring to the fact that officials from Canada?s Department of Foreign Affairs and International Trade (DFAIT) interrogated Omar Khadr at Guantanamo Bay and gave their interrogation records to Khadr?s U.S. captors after being told that U.S. officials had tortured Khadr (by severe sleep deprivation)[2] for three weeks to ?make him more amenable and willing to talk? to the Canadians and that he would be placed in isolation after the interrogation.

Ignoring the imperative international duties triggered by these appalling facts, the Supreme Court of Canada went on to rule it appropriate to leave ?it to the government to decide how best to respond??[3] The court set aside the 23 April 2009 order of the Federal Court of Canada ? confirmed by the Federal Court of Appeal on 14 August 2009 ? compelling the Prime Minister, the Minister of Foreign Affairs, the Commissioner of the RCMP, and the Director of CSIS to "?request that the United States return Mr. Khadr to Canada as soon as practicable."

The Federal Court order was in keeping with the decision made by the Canadian government in March 2009. In June 2008 the Committee struck to study the Omar Khadr case recommended to Parliament ??that the Government of Canada demand Omar Khadr?s release from U.S. custody at Guantanamo Bay to the custody of Canadian law enforcement officials as soon as practical.?[4] On 23 March 2009, Parliament voted by a majority to accept that recommendation, thereby directing the Prime Minister to act to secure Khadr?s release and repatriation.

In setting aside the lower court orders and overriding the will of Parliament, the court cited a need to respect the prerogative power of the executive to conduct foreign affairs, described as the ??arbitrary authority, which at any given time is legally left in the hand of the Crown??.

To arrive at this conclusion, the court relied on a text published in 1915: long before the prohibition of torture became a norm of jus cogens, a ?peremptory norm of general international law? from which no derogation is permitted; long before the ??use of torture?by state authorities?" had come to be regarded as an attack upon the international order[5]; long before the individual?s right to freedom from torture took precedence over the right of states to conduct their affairs free from interference by other states. Under current international law, the duties of states to enact and enforce effective remedies to prevent and punish torture are not subservient to any other domestic or international purpose or circumstance including ?comity? between states.

In taking the extraordinary step of denying Khadr the remedy ordered by the courts below ? the only remedy available ? based on the existence of an arbitrary power not supported by law, the Supreme Court of Canada was simply wrong. It was simply wrong for the court to conclude that characterizing a remedy for torture as a foreign affairs policy matter displaces the imperative legal duties under the Convention against Torture to take effective action. Prime Minister Harper cannot clothe himself with the power to do what is prohibited by international and Canadian law. By law, torture against a Canadian citizen must be remedied through investigation and prosecution of suspects. Obviously the victim ? in this case Khadr ? must be removed from the control of the perpetrators of crimes against him. Neither the Prime Minister nor ?government? has any ?residual? right to ?speak freely with a foreign state?[6] on the suspension or relaxation of the absolute prohibition against torture.[7] Torture can never be considered a legitimate act of state; neither can suspending or refusing remedies be legitimated as foreign policy.

The language used by the court to describe key facts and principles creates the erroneous impression that U.S. accusations against Omar Khadr are more serious than, and therefore take precedence over, the crimes the U.S. is known to have committed against him.

Here are examples of the misleading language used by the court in the Khadr judgment:

?frequent flyer program? is used to refer to the torture of Khadr by subjecting him to prolonged and severe sleep deprivation to enhance extraction of information by Canadian officials.

?trial? is used to refer to the military commissions process found by the U.S. Supreme Court to illegally violate the right to a fair trial by a ?regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.?

?war crimes? is used to describe charges against Khadr that have been challenged as illegitimate because they are: unknown to the laws of war; created after they are alleged to have been committed, for which reason prosecution is absolutely barred;[8] and inapplicable since as a child Khadr lacked the capacity to consent to involvement in war.

?the trial is proceeding? refers to a delay[9] of almost eight years - a delay that violates the right to be tried within a reasonable time under Canadian and U.S. law.[10] Were Khadr before a regularly constituted court, the prosecution would be stayed on the basis of that delay.

?government? is used to refer to Stephen Harper, the Commissioner of the RCMP, the Minister of Foreign Affairs and the Director of CSIS.[11]

?Mr. Khadr?s rights under s. 7 of the Canadian Charter of Rights and Freedoms were violated? refers to the most grave violations of Khadr?s rights to liberty[12]; due process[13]; freedom from torture and other cruel, inhuman and degrading treatment or punishment[14]; freedom from arbitrary imprisonment[15]; freedom from prosecution for ex post facto crimes; a fair trial; timely and confidential legal representation; determination of criminal charges by an impartial and independent tribunal; habeas corpus for determination of the legality of imprisonment and treatment during imprisonment; equality before the law and equal access to the protection of the law;[16] and, under the Convention on the Rights of the Child, to rehabilitation, education and re-integration into free society.

Finally, the Supreme Court of Canada decision in the Khadr case ignored the legal reality that without remedies there are no rights.[17] The Chief Justice of the Supreme Court of Canada has in the past observed that had freedom from torture and other basic rights been enforced, the Holocaust could not have occurred.[18]

By allowing the Prime Minister to refuse to take the actions required by law and approved by Parliament to stop violations of Omar Khadr?s rights, and by dubbing Mr. Harper?s inaction ?foreign affairs,? the Supreme Court of Canada has put the rights of us all at risk.


Gail Davidson is the founder and Executive Director of Lawyers Rights Watch Canada and the Chair and co-founder of Lawyers Against the War.



Notes

1. Prime Minister of Canada, Minister of Foreign Affairs, Director of the Canadian Security Intelligence Service and Commissioner of the Royal Canadian Mounted Police v. Omar Ahmed Khadr, Supreme Court of Canada, January 29, 2010

2. Sleep deprivation used to extract information from a prisoner is torture according to a variety of authorities. UN experts, reviewing international law, confirmed in a 2006 report on Guantanamo Bay that sleep deprivation, even for several consecutive days, is torture. The U.S. Army Field Manual on Interrogation in force in 2004 listed sleep deprivation as a form of torture. The Canadian government publication, Torture & Abuse Awareness, lists the U.S. as one of the ten countries worldwide known to engage in torture and lists sleep deprivation as a form of torture.

3. ??in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record. The appropriate remedy in this case is to declare that K?s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.? Supra note 1 at para. 39.

4. OMAR KHADR Report of the Standing Committee on Foreign Affairs and International Development: Subcommittee on International Human Rights, June 2008, para. 3, page 6.

5. R v. Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; R v. Evans and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet, [1999] UKHL 17, House of Lords. Lord Millet.

6. Supra, note 1 at para. 33.

7. Instruments that impose a mandatory duty to provide effective remedies against torture include the: Geneva Conventions; Rome Statute of the International Court; International Covenant on Civil and Criminal Rights; Convention against Torture and other Cruel, Inhuman or Degrading Punishment or Treatment; Basic Principles and Guidelines on the Right to Remedy and Reparations for Victims of Violations of International Human Rights and Serious Violations of International Humanitarian Law; The Vienna Declaration and Programme of Action, articles 56 and 60; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

8. Freedom from ex post facto prosecutions is absolute and cannot be displaced by any authority under any
circumstances.

9. Factors contributing to the delay include: rulings by the U.S. Supreme Court that the military commissions are illegal; dismissal of the charges; non-disclosure by the prosecution; leaked documents indicating falsification of evidence by the U.S. military; the Pentagon sacking of the military ?Presiding Officer? in charge of the Khadr case; investigation of professional misconduct complaints against Khadr?s lead military attorney; a 120-day adjournment imposed by President Obama in January 2009 for a review the process; and a four month suspension imposed by the president in May 2009 to alter the military commissions.

10. The U.S. Constitution, art. VI, cl.2 guarantees a trial within a reasonable time, as does the Speedy Trial Act. In Canada this right is guaranteed by the Charter of Rights and Freedoms s. 11(b). The Supreme Court of Canada recently ruled that a two year delay violated Charter rights and that the appropriate remedy was to stay the prosecution. (R. v. Godin, 2009 SCC 26)

11. Supra note 4, a para. 3, page 6.

12. The right to liberty and not to be deprived thereof except in accordance with the principles of fundamental justice is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Universal Declaration of Human Rights.

13. Due Process rights, including rights to a lawyer, notice of charges and evidence, a fair trial before a competent and independent tribunal, habeas corpus, an appeal, the presumption of innocence are guaranteed by a number of Canadian statutes and international instruments binding on Canada, e.g., the Canadian Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; Third Geneva Convention; Crimes against Humanity and War Crimes Act; Convention on the Rights of the Child; Hague Conventions, Annex, art. 23(h).

14. Freedom from torture is a non-derogable right of all humankind that cannot be displaced by any circumstances, guaranteed by the Convention against Torture and Other Cruel and Inhuman Treatment or Punishment; the Criminal Code; the Crimes against Humanity and War Crimes Act; the Rome Statute of the International Court; the Geneva Conventions; the Convention on the Rights of the Child; and other laws binding on Canada and the U.S.

15. Freedom from arbitrary imprisonment is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the Third Geneva Convention; the Universal Declaration of Human Rights; and the Magna Carta.

16. Rights to equality before the law and equal access to protection by law and to legal remedies for the prevention and punishment of violations is guaranteed by the Charter of Rights and Freedoms; the International Covenant on Civil and Political Rights; and the Convention on the Rights of the Child

17. ?Our High Commissioner has reminded us that "Rights which are violated or ignored are rights in name only." It is in this spirit that we must abolish the culture of impunity. States that fail to prosecute human rights abusers are failing in their 'responsibility to protect'.? Canada?s International Human Rights Policy website (accessed 2 August 2005).

18. ?The most basic human rights are those guaranteed by the criminal law ? the right to life; to liberty; to freedom from arbitrary detention, abuse and torture?Rights, that had they been in place and in force, would have made impossible the atrocities of the holocaust.? The Right Honourable Beverley McLachlin P.C. Chief Justice of Canada, The Changing Face of International Criminal Law p.14.
]]> A Solomonic Judgment on Elections in Iraq http://jurist.law.pitt.edu/forumy/2010/02/solomonic-judgment-on-elections-in-iraq.php JURIST Guest Columnist Chibli Mallat, professor of law at the University of Utah and Saint Joseph's University, Lebanon, says that for the sake of stability in Iraq's upcoming elections, it's imperative that all parties respect the Iraqi judiciary's recent decision on candidate eligibility....

It took the US Supreme Court 180 pages to issue the controversial ? and by most accounts, poor ? Citizens United decision which equated corporations with individual human beings and which threw overboard a carefully crafted bipartisan law meant to reduce the power of money in US elections.

In its ?Abd al-Amir decision of February 3, 2010, it took the Iraqi Cassation Chamber ten lines to bring hope to an endangered electoral process in Iraq. It was published on February 4 on the Higher Judicial Council's website, and is available here in English.

I have argued that last month's Citizens United decision repeated the ill-bent precedent of the infamous Bush v. Gore decision of December 2000 in the sense that the judges appeared to act as mere political agents for the parties of the presidents who appointed each of them. At great cost to the judiciary's credibility, both cases split down the middle politically, with 5 Republicans against 4 Democrats. Hence the finesse, in contrast, of the Iraqi judiciary's ?Abd al-Amir decision.

In an occasionally endearing ruling about the risk of being a judge in a country like Iraq, the Cassation Chamber admitted the appeals lodged by some 500 candidates on the basis of their exclusion from the electoral lists. That exclusion was decreed by the Accountability and Justice Committee on account of the candidates' organic ties with the previous Baath regime. The Court declared that it did not have time to examine the appeals, and that while candidates had a constitutional right to run for elections, the Court could cancel the results in case of success if the 'democratic credentials' required by the anti-Baath law had not been met.

At the origins of the electoral turmoil in Iraq was the precedent created by the botched Afghani presidential election, which saw the rigging of the election of incumbent president Hamid Karzai go unpunished.

Challenges to the stability of the electoral system in Iraq started with the late approval of the electoral law on November 8, 2009. From the start, this appeared to be a harbinger of fishy dealings because it left candidates with little time to establish their tactics and coalition strategy. Then Tareq al-Hashimi ? one of the three members of the Iraqi Presidency Council ? unreasonably vetoed the law on November 18, pushing the date beyond the January deadline requested by an earlier ruling of the Federal Supreme Court. In a country with deep national and sectarian divisions, this was perceived as a Sunni ploy ? Hashimi being Sunni. The unease was continued by rumblings of the president of the Kurdish region, Mas'ud Barzani, who threatened that same week to boycott the elections if certain Kurdish demands were not met. This was perceived as a Kurdish ploy. As soon as the date was finalized in the wake of a last-minute compromise between Hashimi and the Kurds, the crisis of the excluded candidates was set by the decision of the Accountability and Justice Commission on 19 January 2010. Since almost one-sixth of the candidates were excluded, the crisis became national. This was perceived as a Shi'i ploy.

At the heart of the last crisis lie two conflicting basic principles: the candidate's freedom to run, and the public's right to be shielded from self-styled advocates of the Baath system.

The Court rendered nothing less than a Solomonic judgment. Tempers run high in elections, and Iraq is no exception. The Accountability and Justice Commission certainly erred in delaying the examination of candidates' credentials until so late in the day, and disqualified too many people for its decision not to appear excessive so close to the elections.

On the other hand, in a country where some politicians continue to boast about a ruthless 'resistance' which continues to kill dozens of innocent civilians at a time when American troops are anxious to leave the country, there is a legitimate question as to whether some of the unrepentant Baathists should be allowed to use what they decry as "US-imposed democracy" to run for elections. By holding that their democratic credentials might still be examined after the elections, because it simply did not have the time to thoroughly and professionally examine every file, the Cassation Chamber achieved a Pyrrhic victory that saves the elections, but only if its writ is widely accepted in the country.

It should be. The Seven-member court was appointed by the Higher Judicial Council on the request of Parliament in order to give the candidates banned by the Commission the right to see their appeals adjudicated in a court of law. The judges simply did not have time to examine several hundred cases, nor did the law allow them to accept candidates who supported or who continue to support the members or advocates of the former regime, which was rightly described by Tony Blair as "monstrous" in his recent appearance before the Chilcot commission. Candidates whose rights to run were reinstated should take the decision seriously and should avoid triumphalism during the campaign. Similarly, all factions in Iraq must abandon posturing and must run a decent campaign which has for all intents and purposes fully started, while the brutal bombings meant to derail them continue and intensify.

When the ill-advised decision Bush v. Gore was issued, losing candidate Al Gore expressed impressive democratic poise when he stated on December 13, 2000: "Now the U.S. Supreme Court has spoken." In a far better decision, Iraq should be shielded from further uncertainties created by suspicious candidates and parties who should now accept that the Iraqi Court has spoken. The Iraqi judiciary gave Iraqis a respite which will only take effect if its decision is appreciated for its extraordinary humane and legal quality.


Chibli Mallat is professor of law at the University of Utah and Saint Joseph's University, Lebanon. He is the author of numerous studies on Iraq, including three books, The Renewal of Islamic Law (Cambridge 1993), Dalil al-Dustur al-?Iraqi (?Guide to the Iraqi Constitution?, Baghdad 2009) and Iraq: Guide to Law and Policy, which has just appeared at Aspen. He is a regular JURIST columnist and edits the Lebanese Daily Star law page.
 2010-02-08T06:51:00-05:00 2010-03-10T10:42:00-05:00 Chibli Mallat, professor of law at the University of Utah and Saint Joseph's University, Lebanon, says that for the sake of stability in Iraq's upcoming elections, it's imperative that all parties respect the Iraqi judiciary's recent decision on candidate eligibility....

It took the US Supreme Court 180 pages to issue the controversial ? and by most accounts, poor ? Citizens United decision which equated corporations with individual human beings and which threw overboard a carefully crafted bipartisan law meant to reduce the power of money in US elections.

In its ?Abd al-Amir decision of February 3, 2010, it took the Iraqi Cassation Chamber ten lines to bring hope to an endangered electoral process in Iraq. It was published on February 4 on the Higher Judicial Council's website, and is available here in English.

I have argued that last month's Citizens United decision repeated the ill-bent precedent of the infamous Bush v. Gore decision of December 2000 in the sense that the judges appeared to act as mere political agents for the parties of the presidents who appointed each of them. At great cost to the judiciary's credibility, both cases split down the middle politically, with 5 Republicans against 4 Democrats. Hence the finesse, in contrast, of the Iraqi judiciary's ?Abd al-Amir decision.

In an occasionally endearing ruling about the risk of being a judge in a country like Iraq, the Cassation Chamber admitted the appeals lodged by some 500 candidates on the basis of their exclusion from the electoral lists. That exclusion was decreed by the Accountability and Justice Committee on account of the candidates' organic ties with the previous Baath regime. The Court declared that it did not have time to examine the appeals, and that while candidates had a constitutional right to run for elections, the Court could cancel the results in case of success if the 'democratic credentials' required by the anti-Baath law had not been met.

At the origins of the electoral turmoil in Iraq was the precedent created by the botched Afghani presidential election, which saw the rigging of the election of incumbent president Hamid Karzai go unpunished.

Challenges to the stability of the electoral system in Iraq started with the late approval of the electoral law on November 8, 2009. From the start, this appeared to be a harbinger of fishy dealings because it left candidates with little time to establish their tactics and coalition strategy. Then Tareq al-Hashimi ? one of the three members of the Iraqi Presidency Council ? unreasonably vetoed the law on November 18, pushing the date beyond the January deadline requested by an earlier ruling of the Federal Supreme Court. In a country with deep national and sectarian divisions, this was perceived as a Sunni ploy ? Hashimi being Sunni. The unease was continued by rumblings of the president of the Kurdish region, Mas'ud Barzani, who threatened that same week to boycott the elections if certain Kurdish demands were not met. This was perceived as a Kurdish ploy. As soon as the date was finalized in the wake of a last-minute compromise between Hashimi and the Kurds, the crisis of the excluded candidates was set by the decision of the Accountability and Justice Commission on 19 January 2010. Since almost one-sixth of the candidates were excluded, the crisis became national. This was perceived as a Shi'i ploy.

At the heart of the last crisis lie two conflicting basic principles: the candidate's freedom to run, and the public's right to be shielded from self-styled advocates of the Baath system.

The Court rendered nothing less than a Solomonic judgment. Tempers run high in elections, and Iraq is no exception. The Accountability and Justice Commission certainly erred in delaying the examination of candidates' credentials until so late in the day, and disqualified too many people for its decision not to appear excessive so close to the elections.

On the other hand, in a country where some politicians continue to boast about a ruthless 'resistance' which continues to kill dozens of innocent civilians at a time when American troops are anxious to leave the country, there is a legitimate question as to whether some of the unrepentant Baathists should be allowed to use what they decry as "US-imposed democracy" to run for elections. By holding that their democratic credentials might still be examined after the elections, because it simply did not have the time to thoroughly and professionally examine every file, the Cassation Chamber achieved a Pyrrhic victory that saves the elections, but only if its writ is widely accepted in the country.

It should be. The Seven-member court was appointed by the Higher Judicial Council on the request of Parliament in order to give the candidates banned by the Commission the right to see their appeals adjudicated in a court of law. The judges simply did not have time to examine several hundred cases, nor did the law allow them to accept candidates who supported or who continue to support the members or advocates of the former regime, which was rightly described by Tony Blair as "monstrous" in his recent appearance before the Chilcot commission. Candidates whose rights to run were reinstated should take the decision seriously and should avoid triumphalism during the campaign. Similarly, all factions in Iraq must abandon posturing and must run a decent campaign which has for all intents and purposes fully started, while the brutal bombings meant to derail them continue and intensify.

When the ill-advised decision Bush v. Gore was issued, losing candidate Al Gore expressed impressive democratic poise when he stated on December 13, 2000: "Now the U.S. Supreme Court has spoken." In a far better decision, Iraq should be shielded from further uncertainties created by suspicious candidates and parties who should now accept that the Iraqi Court has spoken. The Iraqi judiciary gave Iraqis a respite which will only take effect if its decision is appreciated for its extraordinary humane and legal quality.


Chibli Mallat is professor of law at the University of Utah and Saint Joseph's University, Lebanon. He is the author of numerous studies on Iraq, including three books, The Renewal of Islamic Law (Cambridge 1993), Dalil al-Dustur al-?Iraqi (?Guide to the Iraqi Constitution?, Baghdad 2009) and Iraq: Guide to Law and Policy, which has just appeared at Aspen. He is a regular JURIST columnist and edits the Lebanese Daily Star law page.
]]> Constructive Criticism: Presidential Opposition to Supreme Court Rulings http://jurist.law.pitt.edu/forumy/2010/02/constructive-criticism-presidential.php JURIST Guest Columnist William G. Ross of Cumberland School of Law, Samford University, says that although a president should naturally be careful to avoid demonstrating disrespect for the Supreme Court, the remarks President Obama recently made about the Court's decision in Citizens United v. Federal Election Commission during the State of the Union address did not in any way derogate judicial independence or encourage any defiance of the Court?s decision....

President Obama?s pungent criticism of a very recent and highly controversial U.S. Supreme Court decision during his State of the Union address last week raises important questions about the proper manner in which a president should express objections to the Court?s decisions. Many Americans, including many Democrats, believe that Obama?s remarks about the Court?s five-to-four January 21 decision invalidating certain limitations on corporate spending in political campaigns were disrespectful to the Court and insensitive to the doctrines of judicial independence and separation of powers, particularly since the Justices were present at the State of the Union address. Considered in context, however, Obama?s remarks were not improper, although they might have been somewhat imprudent.

First, it is important to point out that Obama criticized only one judicial decision, Citizens United v. Federal Election Commission. He did not attack the Court itself or impugn the good faith or motives of any individual justice. Although he objected to the manner in which the Court exercised its power of judicial review in a particular case, he did not express any objection to the Court?s power of judicial review or even remotely imply that he supported any kind of curtailment of the Court?s institutional powers. In contrast with earlier periods of American history, when controversial Supreme Court opinions often provoked calls for abridgment or abolition of the power of judicial review, the adverse reaction to Citizens United has not generated any assault on the Court itself.

To the extent that Obama believes that Citizens United could have baneful consequences for the integrity of American democracy, he appropriately used the ?bully pulpit? of a State of the Union address to warn about the decision?s deleterious impact and to call for measures to counteract it. Obama is hardly alone, for his dismay over Citizens United is shared by countless Americans and by many members of Congress, who are trying to formulate legislation that will overcome or at least ameliorate its effects. Indeed, one of the harshest criticisms of the decision originated on the Court itself. Justice Stevens, in a dissent joined by Justices Ginsberg, Breyer, and Sotomayor, warned that the decision ?will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.?

Moreover, Obama?s remarks about Citizens United, which displayed a forthrightness that many of his liberal critics found refreshing, were far from intemperate. Here is what Obama actually said:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests ? including foreign corporations ? to spend without limit in our elections. Well, I don?t think American elections should be bankrolled by America?s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that?s why I?d urge Democrats and Republicans to pass a bill that helps corrects some of these problems.
Despite the widespread commentary about Obama?s remarks about Citizens United in his State of the Union address, Obama?s far more trenchant remarks on the day on which the Court announced Citizens United have attracted little notice or criticism. In this statement, Obama declared that ?With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.? Obama may have felt that he needed to tone down his remarks for the highly formal occasion of the State of the Union address, particularly because the Supreme Court justices were present.

Obama?s words arguably were more moderate than many passages of Stevens?s dissenting opinion. In addition to his warning about ?corporate domination of the political process,? Stevens disparaged the Court?s opinion as ?a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.?

Although some critics of Obama?s speech contend that Obama lied about the Court?s decision insofar as he alleged that it could permit foreign corporations to bankroll American elections, many lawyers and scholars believe that the decision could have exactly this effect even though the decision technically addressed only a provision of the Bipartisan Campaign Reform Act of 2002 that concerned domestic corporations and even though the decision did not overturn restrictions on direct campaign contributions. The danger of foreign influence would appear to be particularly significant since even many ?domestic? corporations actually are owned mostly or largely by foreign interests. Indeed, in his dissent Stevens warned that the decision ?would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.? While one might disagree with Obama?s statement about foreign corporations--as did Justice Samuel Alito, who indignantly mouthed ?not true? when Obama made this allegation?-it is not fair to say that Obama lied. It also is unfair for some of Obama?s critics to claim that he lied by alleging that Citizens United reversed a century of precedent. Although the decision technically rejected precedents dating back no farther than 1990, Justice Stevens explained in his dissent that ?[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).? If Obama lied, then so did Stevens and the three other dissenters.

There is likewise little basis for objecting to Obama?s criticism of even one individual decision on the basis that any presidential criticism of a judicial decision tends to discredit the Court and hinder the enforcement of its decisions. Obama?s criticism of Citizens United does not create such a danger, although this kind of a threat could arise in other types of cases. Since the Court--as Alexander Hamilton famously pointed out in No. 78 of The Federalist--has neither the power of the purse nor the power of the sword, it is dependent upon the goodwill of the executive and legislative branches of the federal and state governments and of the American people for the enforcement of its decisions. A president therefore should be particularly careful about criticizing any decision that could encounter widespread defiance.

For example, enforcement of the Supreme Court?s controversial decisions during the 1960s expanding the procedural rights of criminal defendants depended upon compliance by countless police officers and state judges. Although there is no indication that Lyndon Johnson opposed these decisions, any criticism by him of decisions such as Miranda v. Arizona (1966) while he was president could have encouraged law enforcement officials to ignore, evade, or even defy the Supreme Court?s rulings. Similarly, the Supreme Court?s widely unpopular decision barring prayer in public school, Engel v. Vitale (1962), required compliance by tens of thousands of schools and hundreds of thousands of teachers. The decision was difficult to enforce, and at least some schools ignore it even today. President Kennedy was wise to publicly urge respect for the decision, explaining to its opponents that there was an ?easy remedy? insofar as ?we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of our children.? Likewise, the Supreme Court?s principal school desegregation decision, Brown v. Education (1954), required the goodwill of countless parents and compliance by a wide array of school boards, state legislators, and governors. President Eisenhower, who had severe misgivings about Brown, has been criticized for making public endorsements of the decision that were so lukewarm and ambiguous that they may have discouraged compliance. Efforts to compel public officials to comply with Brown often required costly and protracted litigation by civil rights groups that had difficulty financing such litigation. Similarly, the costs of efforts to enforce Engel or the Court?s criminal procedure decisions would have had to have been borne in many cases by under-financed religious minorities or impoverished criminal defendants.

In stark contrast to these earlier cases, Citizens United is not a decision that the Supreme Court should have any difficulty enforcing. The Federal Elections Commission is the only agency that could directly frustrate the Court?s decision, and any attempt by the Commission to try to enjoin the types of activity permitted by the Court?s decision would attract widespread public attention and provoke litigation by well financed corporations.

Finally, complaints about Obama?s criticism of Citizens United are misplaced to the extent that they underestimate the extent to which previous presidents have criticized the Court and its decisions. Although presidents usually have been circumspect about making public comments concerning Supreme Court decisions, presidential criticism of such decisions has been far from unknown. In 1989, for example, President George Bush advocated a constitutional amendment to overturn the Court?s decision in Texas v. Johnson, which nullified a state statute that criminalized flag burning. Although Bush signed a federal statute to criminalize flag burning, he continued to express preference for a constitutional amendment. When the Court two years later invalidated a similar federal law in United States v. Eichman, Bush immediately advocated another constitutional amendment.

Presidential criticism of the Court?s decisions probably would be even more common if presidents had not so often agreed with the outcome of decisions or had not believed that criticism could offend important blocs of voters. Franklin D. Roosevelt, for example, generally refrained from criticism of the Court after the Court during 1935 and 1936 nullified several of his New Deal measures because he feared that such criticism could backfire. In a press conference in 1935, he complained that the Court?s decisions were relics of the ?horse and buggy definition of interstate commerce,? but he otherwise was silent until early in 1937, when his Court-packing proposal and his harsh remarks about the Court inspired widespread disapproval that culminated in congressional rejection of his plan to add up to six justices to the Court.

Although Obama?s criticism of Citizens United in his State of the Union address probably is the strongest statement that a president ever has made about a recent Supreme Court decision in any State of the Union speech, other presidents have used the State of Union to make points about judicial decisions. As recently as 2004, President Bush tacitly criticized the Supreme Judicial Court of Massachusetts?s recent decision on same-sex marriage, alleging that ?activist judges have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.? Bush implied that he supported a constitutional amendment to overturn the decision. Although President Reagan never mentioned Roe v. Wade by name or directly criticized the Supreme Court in his State of the Union addresses, he impliedly criticized Roe in his 1984 and 1986 addresses. In his 1988 State of the Union speech, Reagan advocated a constitutional amendment to allow prayer in public schools, but he did not specifically refer to Engel v. Vitale or any other Court?s school prayer decisions. In 1922, President Harding called for an amendment to restrict child labor which would have had the effect of overturning the Court?s decisions in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture (1922), although Harding did not mention these decisions or the Court by name.

Until Obama?s speech last week, perhaps the most piquant remark concerning the U.S. Supreme Court in any State of the Union message was made by Franklin D. Roosevelt in January 1937, only a few weeks before he announced his infamous Court-packing proposal. Roosevelt expressed hope that ?we can meet new national needs with new laws consistent with an historic constitutional framework clearly intended to receive liberal and not narrow interpretation.? Implying that he opposed constitutional amendments but would work for some other method to ensure judicial approval of economic regulatory legislation, Roosevelt declared that ?[t]he vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it,? and that ?[m]eans must be found to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the world.? The Justices were absent from this State Union address, even though Roosevelt had expected them to attend. Secretary of the Interior Harold L. Ickes speculated in his diary that they stayed away because they had "received a tip as to the contents of the message".

Theodore Roosevelt, however, holds the record for criticism of courts in State of the Union addresses. In his 1906 and 1908 State of the Union addresses, Roosevelt made extensive and stinging remarks about state and federal judges who invalidated economic regulatory legislation and who issued injunctions against the legitimate activities of labor unions. In his 1908 address, Roosevelt declared that ?[j]udges of this stamp do lasting harm by their decisions because they convince poor men in need of protection that the courts of the land are profoundly ignorant of and out of sympathy with their needs.? Similarly, in his 1906 address, Roosevelt complained about ?flagrant wrongs committed by judges in connection with disputes.? In both addresses, in which Roosevelt devoted thousands of words to discussing judicial issues, Roosevelt professed strong respect for the majority of state and federal judges and for judicial independence, but he warned that the continuation of strong judicial institutions required a wise exercise of judicial power that elevated the rule of law over special interests.

Roosevelt did not make these remarks in front of any judges because State of the Union addresses were not delivered in person between 1801 and 1913. Much of the criticism of Obama?s remarks last week are based not on what he said but on where he said it. Many critics of Obama?s remarks about Citizens United complain that Obama was unfair to the Court to the extent that the justices had no immediate way to respond, other than in the ill-advised manner used by Alito. But while extrajudicial comments by judges about their own decisions are inappropriate, there are plenty of lawyers, journalists, scholars, and pundits who can defend the Court?s opinions. Although a president naturally should be careful to avoid demonstrating any disrespect for the Court, particularly when the justices are present, Obama?s remarks in his State of the Union address were limited to only one case and did not in any way derogate judicial independence or encourage any defiance of the Court?s decision. Indeed, such measured criticism of the Court can actually enhance public respect for the judiciary. As Theodore Roosevelt observed in his 1906 State of the Union address, ?just and temperate criticism? of the judiciary helps to prevent ?that intemperate antagonism towards the judiciary which...if it became widespread among the people...would constitute a dire menace to the Republic.?


William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include several studies of political controversies involving the U.S. Supreme Court. His website is williamgeorgeross.com.
 2010-02-02T11:50:00-05:00 2010-03-10T10:42:00-05:00 William G. Ross of Cumberland School of Law, Samford University, says that although a president should naturally be careful to avoid demonstrating disrespect for the Supreme Court, the remarks President Obama recently made about the Court's decision in Citizens United v. Federal Election Commission during the State of the Union address did not in any way derogate judicial independence or encourage any defiance of the Court?s decision....

President Obama?s pungent criticism of a very recent and highly controversial U.S. Supreme Court decision during his State of the Union address last week raises important questions about the proper manner in which a president should express objections to the Court?s decisions. Many Americans, including many Democrats, believe that Obama?s remarks about the Court?s five-to-four January 21 decision invalidating certain limitations on corporate spending in political campaigns were disrespectful to the Court and insensitive to the doctrines of judicial independence and separation of powers, particularly since the Justices were present at the State of the Union address. Considered in context, however, Obama?s remarks were not improper, although they might have been somewhat imprudent.

First, it is important to point out that Obama criticized only one judicial decision, Citizens United v. Federal Election Commission. He did not attack the Court itself or impugn the good faith or motives of any individual justice. Although he objected to the manner in which the Court exercised its power of judicial review in a particular case, he did not express any objection to the Court?s power of judicial review or even remotely imply that he supported any kind of curtailment of the Court?s institutional powers. In contrast with earlier periods of American history, when controversial Supreme Court opinions often provoked calls for abridgment or abolition of the power of judicial review, the adverse reaction to Citizens United has not generated any assault on the Court itself.

To the extent that Obama believes that Citizens United could have baneful consequences for the integrity of American democracy, he appropriately used the ?bully pulpit? of a State of the Union address to warn about the decision?s deleterious impact and to call for measures to counteract it. Obama is hardly alone, for his dismay over Citizens United is shared by countless Americans and by many members of Congress, who are trying to formulate legislation that will overcome or at least ameliorate its effects. Indeed, one of the harshest criticisms of the decision originated on the Court itself. Justice Stevens, in a dissent joined by Justices Ginsberg, Breyer, and Sotomayor, warned that the decision ?will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.?

Moreover, Obama?s remarks about Citizens United, which displayed a forthrightness that many of his liberal critics found refreshing, were far from intemperate. Here is what Obama actually said:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests ? including foreign corporations ? to spend without limit in our elections. Well, I don?t think American elections should be bankrolled by America?s most powerful interests, and worse, by foreign entities. They should be decided by the American people, and that?s why I?d urge Democrats and Republicans to pass a bill that helps corrects some of these problems.
Despite the widespread commentary about Obama?s remarks about Citizens United in his State of the Union address, Obama?s far more trenchant remarks on the day on which the Court announced Citizens United have attracted little notice or criticism. In this statement, Obama declared that ?With its ruling today, the Supreme Court has given a green light to a new stampede of special interest money in our politics. It is a major victory for big oil, Wall Street banks, health insurance companies and the powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.? Obama may have felt that he needed to tone down his remarks for the highly formal occasion of the State of the Union address, particularly because the Supreme Court justices were present.

Obama?s words arguably were more moderate than many passages of Stevens?s dissenting opinion. In addition to his warning about ?corporate domination of the political process,? Stevens disparaged the Court?s opinion as ?a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.?

Although some critics of Obama?s speech contend that Obama lied about the Court?s decision insofar as he alleged that it could permit foreign corporations to bankroll American elections, many lawyers and scholars believe that the decision could have exactly this effect even though the decision technically addressed only a provision of the Bipartisan Campaign Reform Act of 2002 that concerned domestic corporations and even though the decision did not overturn restrictions on direct campaign contributions. The danger of foreign influence would appear to be particularly significant since even many ?domestic? corporations actually are owned mostly or largely by foreign interests. Indeed, in his dissent Stevens warned that the decision ?would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.? While one might disagree with Obama?s statement about foreign corporations--as did Justice Samuel Alito, who indignantly mouthed ?not true? when Obama made this allegation?-it is not fair to say that Obama lied. It also is unfair for some of Obama?s critics to claim that he lied by alleging that Citizens United reversed a century of precedent. Although the decision technically rejected precedents dating back no farther than 1990, Justice Stevens explained in his dissent that ?[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).? If Obama lied, then so did Stevens and the three other dissenters.

There is likewise little basis for objecting to Obama?s criticism of even one individual decision on the basis that any presidential criticism of a judicial decision tends to discredit the Court and hinder the enforcement of its decisions. Obama?s criticism of Citizens United does not create such a danger, although this kind of a threat could arise in other types of cases. Since the Court--as Alexander Hamilton famously pointed out in No. 78 of The Federalist--has neither the power of the purse nor the power of the sword, it is dependent upon the goodwill of the executive and legislative branches of the federal and state governments and of the American people for the enforcement of its decisions. A president therefore should be particularly careful about criticizing any decision that could encounter widespread defiance.

For example, enforcement of the Supreme Court?s controversial decisions during the 1960s expanding the procedural rights of criminal defendants depended upon compliance by countless police officers and state judges. Although there is no indication that Lyndon Johnson opposed these decisions, any criticism by him of decisions such as Miranda v. Arizona (1966) while he was president could have encouraged law enforcement officials to ignore, evade, or even defy the Supreme Court?s rulings. Similarly, the Supreme Court?s widely unpopular decision barring prayer in public school, Engel v. Vitale (1962), required compliance by tens of thousands of schools and hundreds of thousands of teachers. The decision was difficult to enforce, and at least some schools ignore it even today. President Kennedy was wise to publicly urge respect for the decision, explaining to its opponents that there was an ?easy remedy? insofar as ?we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of our children.? Likewise, the Supreme Court?s principal school desegregation decision, Brown v. Education (1954), required the goodwill of countless parents and compliance by a wide array of school boards, state legislators, and governors. President Eisenhower, who had severe misgivings about Brown, has been criticized for making public endorsements of the decision that were so lukewarm and ambiguous that they may have discouraged compliance. Efforts to compel public officials to comply with Brown often required costly and protracted litigation by civil rights groups that had difficulty financing such litigation. Similarly, the costs of efforts to enforce Engel or the Court?s criminal procedure decisions would have had to have been borne in many cases by under-financed religious minorities or impoverished criminal defendants.

In stark contrast to these earlier cases, Citizens United is not a decision that the Supreme Court should have any difficulty enforcing. The Federal Elections Commission is the only agency that could directly frustrate the Court?s decision, and any attempt by the Commission to try to enjoin the types of activity permitted by the Court?s decision would attract widespread public attention and provoke litigation by well financed corporations.

Finally, complaints about Obama?s criticism of Citizens United are misplaced to the extent that they underestimate the extent to which previous presidents have criticized the Court and its decisions. Although presidents usually have been circumspect about making public comments concerning Supreme Court decisions, presidential criticism of such decisions has been far from unknown. In 1989, for example, President George Bush advocated a constitutional amendment to overturn the Court?s decision in Texas v. Johnson, which nullified a state statute that criminalized flag burning. Although Bush signed a federal statute to criminalize flag burning, he continued to express preference for a constitutional amendment. When the Court two years later invalidated a similar federal law in United States v. Eichman, Bush immediately advocated another constitutional amendment.

Presidential criticism of the Court?s decisions probably would be even more common if presidents had not so often agreed with the outcome of decisions or had not believed that criticism could offend important blocs of voters. Franklin D. Roosevelt, for example, generally refrained from criticism of the Court after the Court during 1935 and 1936 nullified several of his New Deal measures because he feared that such criticism could backfire. In a press conference in 1935, he complained that the Court?s decisions were relics of the ?horse and buggy definition of interstate commerce,? but he otherwise was silent until early in 1937, when his Court-packing proposal and his harsh remarks about the Court inspired widespread disapproval that culminated in congressional rejection of his plan to add up to six justices to the Court.

Although Obama?s criticism of Citizens United in his State of the Union address probably is the strongest statement that a president ever has made about a recent Supreme Court decision in any State of the Union speech, other presidents have used the State of Union to make points about judicial decisions. As recently as 2004, President Bush tacitly criticized the Supreme Judicial Court of Massachusetts?s recent decision on same-sex marriage, alleging that ?activist judges have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.? Bush implied that he supported a constitutional amendment to overturn the decision. Although President Reagan never mentioned Roe v. Wade by name or directly criticized the Supreme Court in his State of the Union addresses, he impliedly criticized Roe in his 1984 and 1986 addresses. In his 1988 State of the Union speech, Reagan advocated a constitutional amendment to allow prayer in public schools, but he did not specifically refer to Engel v. Vitale or any other Court?s school prayer decisions. In 1922, President Harding called for an amendment to restrict child labor which would have had the effect of overturning the Court?s decisions in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture (1922), although Harding did not mention these decisions or the Court by name.

Until Obama?s speech last week, perhaps the most piquant remark concerning the U.S. Supreme Court in any State of the Union message was made by Franklin D. Roosevelt in January 1937, only a few weeks before he announced his infamous Court-packing proposal. Roosevelt expressed hope that ?we can meet new national needs with new laws consistent with an historic constitutional framework clearly intended to receive liberal and not narrow interpretation.? Implying that he opposed constitutional amendments but would work for some other method to ensure judicial approval of economic regulatory legislation, Roosevelt declared that ?[t]he vital need is not an alteration of our fundamental law, but an increasingly enlightened view with reference to it,? and that ?[m]eans must be found to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the world.? The Justices were absent from this State Union address, even though Roosevelt had expected them to attend. Secretary of the Interior Harold L. Ickes speculated in his diary that they stayed away because they had "received a tip as to the contents of the message".

Theodore Roosevelt, however, holds the record for criticism of courts in State of the Union addresses. In his 1906 and 1908 State of the Union addresses, Roosevelt made extensive and stinging remarks about state and federal judges who invalidated economic regulatory legislation and who issued injunctions against the legitimate activities of labor unions. In his 1908 address, Roosevelt declared that ?[j]udges of this stamp do lasting harm by their decisions because they convince poor men in need of protection that the courts of the land are profoundly ignorant of and out of sympathy with their needs.? Similarly, in his 1906 address, Roosevelt complained about ?flagrant wrongs committed by judges in connection with disputes.? In both addresses, in which Roosevelt devoted thousands of words to discussing judicial issues, Roosevelt professed strong respect for the majority of state and federal judges and for judicial independence, but he warned that the continuation of strong judicial institutions required a wise exercise of judicial power that elevated the rule of law over special interests.

Roosevelt did not make these remarks in front of any judges because State of the Union addresses were not delivered in person between 1801 and 1913. Much of the criticism of Obama?s remarks last week are based not on what he said but on where he said it. Many critics of Obama?s remarks about Citizens United complain that Obama was unfair to the Court to the extent that the justices had no immediate way to respond, other than in the ill-advised manner used by Alito. But while extrajudicial comments by judges about their own decisions are inappropriate, there are plenty of lawyers, journalists, scholars, and pundits who can defend the Court?s opinions. Although a president naturally should be careful to avoid demonstrating any disrespect for the Court, particularly when the justices are present, Obama?s remarks in his State of the Union address were limited to only one case and did not in any way derogate judicial independence or encourage any defiance of the Court?s decision. Indeed, such measured criticism of the Court can actually enhance public respect for the judiciary. As Theodore Roosevelt observed in his 1906 State of the Union address, ?just and temperate criticism? of the judiciary helps to prevent ?that intemperate antagonism towards the judiciary which...if it became widespread among the people...would constitute a dire menace to the Republic.?


William G. Ross is a professor of law at the Cumberland School of Law of Samford University. His publications include several studies of political controversies involving the U.S. Supreme Court. His website is williamgeorgeross.com.
]]> Good News About GTMO and Bagram http://jurist.law.pitt.edu/forumy/2010/02/good-news-about-gtmo-and-bagram.php JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says President Obama's inability to close the lawful Guantanamo prison is actually good news, but so is the Afghan government's agreement to take over the new Bagram detention facility by the end of 2010....

One of the key issues in the long running ?War on Terror? (as recently as January 7, 2010, President Obama acknowledged that the United States was in a ?War with Al-Qa?eda?) revolves around the detention of so-called al-Qa?eda and Taliban enemy combatants. With the 2006 release of the 14 ?high-value? al-Qa?eda detainees held by the CIA in ?undisclosed? locations, all enemy combatant detainees are currently held either at Bagram Air Force Base in Afghanistan (about 800) or the American run detention facility, Camp Delta, at Guantanamo Bay (GTMO), Cuba (about 200).

Under the rule of law associated with armed conflict, all al-Qa?eda and Taliban detainees are unlawful enemy combatants or "unprivileged enemy belligerents", as the recently passed 2009 Military Commissions Act labels them. As such, these individuals are not entitled to Miranda rights, nor are they entitled to the special protections associated with prisoners of war.

Under the law of war, the purpose of detaining these unprivileged enemy belligerents is to ensure that they do not return to join enemy forces and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorists? organizational infrastructure, financial network, communication system, weapon supply lines, and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy.

The first good news in the detention issue is that President Obama has not been able to fulfill his stern promise to close the detention facility at GTMO by January 2010, or sooner, because of the ?perception? that the United States is in some way acting outside of the rule of law. Of course, this reasoning is incorrect. In reality we are at ?War with Al-Qa?eda? and GTMO is therefore perfectly lawful. Indeed, closing GTMO would only provide a significant propaganda victory to our enemies, not a public relations victory.

In addition, during the first year of the Obama Administration, few seemed the least bit curious about where we were sending al-Qa?eda detainees if not to GTMO. In fact, they were and are being sent to join the hundreds and hundreds of al-Qa?eda and Taliban unprivileged enemy belligerents at Bagram, Air Force Base. The same legal authority that allows the United States to lawfully detain al-Qa?eda and Taliban fighters at GTMO is used at Bagram. In other words, if President Obama believes that we need to apologize for GITMO and close it down, then we certainly need to apologize for the far larger detention facility at Bagram and close it down.

To be sure, this double standard has not been lost on detainees at Bagram. In the past year, at least four separate lawsuits were filed in the federal district court in Washington DC by individuals captured outside Afghanistan seeking, among other things, the right of habeas review of their status as ?enemy combatants.? When the cases were consolidated, the Obama Administration strongly argued that the four were not entitled to habeas review because they were in fact enemy combatants and lawfully detained under the applicable law of war and Congress?s 2001 Authorization for Use of Military Force (AUMF). Unfortunately for the United States, in each case (except for a detainee who was a citizen of Afghanistan), the federal court ruled against the Obama Administration. Relying on Boumediene v. Bush (2008), the federal district court held that the Constitution guarantees habeas rights to Bagram detainees.

Clearly, the granting of habeas to unprivileged enemy belligerents in far off Afghanistan poses serious difficulties for the Obama Administration, but this matter may well be overcome by the second piece of good news associated with detention issues. In early January 2010, the Afghan Defense Ministry announced that it had agreed to take over the new 60-million-dollar (US funded) Bagram detention facility by the end of 2010. This means that the Afghan government would be solely responsible for detaining and prosecuting all detainees. If this comes to pass, the United States may be able to close a significant chapter in dealing with the vast majority of the unprivileged enemy belligerents captured in the War on Terror. Good news indeed.

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary?s University School of Law, San Antonio, Texas. He has served as an expert advisor to the government on the military commissions? process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces. He recently testified before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts hearing entitled: ?What Went Wrong, Torture and the Office of the Legal Counsel in the Bush Administration,? in Washington, DC.
 2010-02-01T02:39:00-05:00 2010-03-10T10:42:00-05:00 Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General's Corps, says President Obama's inability to close the lawful Guantanamo prison is actually good news, but so is the Afghan government's agreement to take over the new Bagram detention facility by the end of 2010....

One of the key issues in the long running ?War on Terror? (as recently as January 7, 2010, President Obama acknowledged that the United States was in a ?War with Al-Qa?eda?) revolves around the detention of so-called al-Qa?eda and Taliban enemy combatants. With the 2006 release of the 14 ?high-value? al-Qa?eda detainees held by the CIA in ?undisclosed? locations, all enemy combatant detainees are currently held either at Bagram Air Force Base in Afghanistan (about 800) or the American run detention facility, Camp Delta, at Guantanamo Bay (GTMO), Cuba (about 200).

Under the rule of law associated with armed conflict, all al-Qa?eda and Taliban detainees are unlawful enemy combatants or "unprivileged enemy belligerents", as the recently passed 2009 Military Commissions Act labels them. As such, these individuals are not entitled to Miranda rights, nor are they entitled to the special protections associated with prisoners of war.

Under the law of war, the purpose of detaining these unprivileged enemy belligerents is to ensure that they do not return to join enemy forces and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorists? organizational infrastructure, financial network, communication system, weapon supply lines, and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy.

The first good news in the detention issue is that President Obama has not been able to fulfill his stern promise to close the detention facility at GTMO by January 2010, or sooner, because of the ?perception? that the United States is in some way acting outside of the rule of law. Of course, this reasoning is incorrect. In reality we are at ?War with Al-Qa?eda? and GTMO is therefore perfectly lawful. Indeed, closing GTMO would only provide a significant propaganda victory to our enemies, not a public relations victory.

In addition, during the first year of the Obama Administration, few seemed the least bit curious about where we were sending al-Qa?eda detainees if not to GTMO. In fact, they were and are being sent to join the hundreds and hundreds of al-Qa?eda and Taliban unprivileged enemy belligerents at Bagram, Air Force Base. The same legal authority that allows the United States to lawfully detain al-Qa?eda and Taliban fighters at GTMO is used at Bagram. In other words, if President Obama believes that we need to apologize for GITMO and close it down, then we certainly need to apologize for the far larger detention facility at Bagram and close it down.

To be sure, this double standard has not been lost on detainees at Bagram. In the past year, at least four separate lawsuits were filed in the federal district court in Washington DC by individuals captured outside Afghanistan seeking, among other things, the right of habeas review of their status as ?enemy combatants.? When the cases were consolidated, the Obama Administration strongly argued that the four were not entitled to habeas review because they were in fact enemy combatants and lawfully detained under the applicable law of war and Congress?s 2001 Authorization for Use of Military Force (AUMF). Unfortunately for the United States, in each case (except for a detainee who was a citizen of Afghanistan), the federal court ruled against the Obama Administration. Relying on Boumediene v. Bush (2008), the federal district court held that the Constitution guarantees habeas rights to Bagram detainees.

Clearly, the granting of habeas to unprivileged enemy belligerents in far off Afghanistan poses serious difficulties for the Obama Administration, but this matter may well be overcome by the second piece of good news associated with detention issues. In early January 2010, the Afghan Defense Ministry announced that it had agreed to take over the new 60-million-dollar (US funded) Bagram detention facility by the end of 2010. This means that the Afghan government would be solely responsible for detaining and prosecuting all detainees. If this comes to pass, the United States may be able to close a significant chapter in dealing with the vast majority of the unprivileged enemy belligerents captured in the War on Terror. Good news indeed.

Jeffrey F. Addicott [Lt. Col. (ret.) US Army] is a Distinguished Professor of Law and the director of the Center for Terrorism Law at St. Mary?s University School of Law, San Antonio, Texas. He has served as an expert advisor to the government on the military commissions? process. Addicott also served as the senior legal advisor to the U.S. Army Special Forces. He recently testified before the Senate Committee on the Judiciary, Subcommittee on Administrative Oversight and the Courts hearing entitled: ?What Went Wrong, Torture and the Office of the Legal Counsel in the Bush Administration,? in Washington, DC.
]]>