Hotline tag:jurist.org,2010-04-01:/hotline//4 2013-05-10T17:09:39Z Movable Type 5.01 ITC Clears Apple Yet Again tag:jurist.org,2013:/hotline//4.49117 2013-05-10T16:30:00Z 2013-05-10T17:09:39Z Rodney Sweetland and Michael McManus, Duane Morris LLP Michael Muha JURIST Guest Columnists Rodney R. Sweetland, III and Michael G. McManus, both of Duane Morris, discuss the recent ITC decision in the Apple-Motorola patent dispute...


In a Section 337 case before the US International Trade Commission (ITC) with a tortuous history, the ITC has once again spared Apple from an exclusion order. Apple's record of success as a respondent at the ITC remains perfect, having succeeded in all nine cases it defended to conclusion.

Background

This case arose from Motorola's suit against Apple for direct and indirect infringement of method and apparatus claims of wireless communication systems technology. These included US Patent Nos. 6,272,333, 6,246,697, 5,636,223, 6,246,862, 5,359,317 and 7,751,826. Motorola accused the full panoply of Apple's product lines, including mobile phones, tablets, personal computing devices and other computer products.
Among Apple's affirmative defenses was unenforceability through unclean hands. The gravamen of Apple's unclean hands defense was the contention that Motorola failed to timely disclose one of the asserted patents to a European Standard Setting Organization (SSO), thereby inducing it to adopt a standard that practiced the Motorola patents. See, e.g., Hynix Semiconductor, Inc. v. Rambus, Inc. and Qualcomm Inc. v. Broadcom Corp..

Apple also pleaded purely RAND-related affirmative defenses in its answer to the complaint. The typical RAND (reasonable and non-discriminatory) defenses arise under the doctrines of contract, equitable estoppel, implied/actual license and waiver. Apple's answer intermingled the substance of these theories in the same individually designated affirmative defense.

For whatever tactical reason, Apple withdrew its purely RAND-based defenses during the case, memorializing that decision in a letter to counsel. It also withdrew its proposed expert on the issue of whether or not Motorola had made a RAND offer. The Office of Unfair Import Investigations (the Staff) withdrew from participation in the case specifically because the RAND-based defenses had been dropped.

Apple did, however, file RAND counterclaims against Apple late in the case. In the ITC, counterclaims are not tried with the case. Rather, under 19 U.S.C. § 1337(c), the respondent filing them must simultaneously remove the counterclaims to a US District Court for adjudication. Apple removed its RAND counterclaims to the Western District of Wisconsin.

First Initial Determination

Motorola terminated the investigation in part by withdrawing the '317 and '826 patents.

In his Initial Determination (ID), Administrative Law Judge (ALJ) David P. Shaw rejected Apple's unclean-hands defense. He found a violation of Section 337 as to the '697 patent and recommended an exclusion order for Apple's products, including its iconic iPhones and iPads. He found no violation as to the '223, '333 and '862 patents.

The Commission voted [PDF] to review the ALJ's ID. Several of the issues under review were typical: claim construction, validity, infringement and domestic industry. In addition, however, the Commission called for the parties to the investigation to brief certain RAND-related issues. It also invited comments on these issues from interested government agencies, the Staff and any other interested parties.

The Commission requested briefing on the theories in law, equity and public interest (19 U.S.C. § 337(d)(1)) that might preclude issuance of an exclusion order under various factual scenarios. These permutations included [PDF]: where the record lacks evidence to support a RAND-based affirmative defense (e.g., equitable estoppel, implied license, waiver, etc.); whether the mere existence of a RAND obligation precludes issuance of an exclusion order; where a patent owner refused to offer a license to a named respondent in a Section 337 proceeding; where a patent owner has refused to offer a license on a RAND-obligated patent to some other entity, regardless of whether that entity is a named respondent in a Section 337 proceeding; where a patent owner has refused to negotiate a license on RAND terms with a named respondent; where a patent owner has refused to negotiate a license on RAND terms with some other entity, regardless of whether that entity is a named respondent; and where a patent owner who has offered a RAND license that the named respondent in a proceeding has rejected. The Commission also asked the parties to address whether Apple waived its RAND defenses.

Public Interest Submissions and Arguments

Under 19 U.S.C. § 1337, there is an exception for Section 337 remedies where the ITC, after considering the public health and welfare, competitive conditions in the US economy, the production of like or directly competitive articles in the US, and US. consumers, finds that infringing articles should not be excluded. These are often referred to as the "public interest factors." The ITC seeks input on public interest factor considerations before a case is instituted and after the ALJ issues the ID.

The Staff raised three arguments in response to the Commission's invitation for public interest submissions. First, it opined that Apple waived its RAND defenses. Second, it stated that the mere existence of a RAND obligation does not preclude relief at the ITC. To hold otherwise would undermine the ITC's ability to protect domestic industries from unfair acts by foreign importers. Third, the Staff noted that whether a particular RAND commitment, or breach thereof, bars relief in any particular ITC case will depend on the facts and circumstances in the case, including the products and industries.

The response to the Commission's invitation for comments was substantial, generating the greatest interest in an ITC case over the past five years. Certain Baseband Processor Chips and Chipsets, Inv. No. 337-TA-543 generated such a high degree of interest that the ITC held a public Commission hearing, the first in a Section 337 case in recent history. Several major companies weighed in. Some, including Hewlett-Packard, Microsoft and Verizon, were against the availability of an exclusion order in virtually any RAND scenario, arguing that it is against the public interest. Other comments from Ericsson, Nokia, RIM, Samsung and others were more nuanced; they argued that the availability of an exclusion order should depend on the facts and circumstances of the RAND obligations and facts of the case. One company, Qualcomm, opined that exclusion orders generally should be available. Three trade associations — the Association for Competitive Technology, Business Software Alliance and Retail Industry Leaders Association — voiced their opinions that exclusion orders should generally not be available. Conversely, Innovation Alliance said that they should.

Commentary was not restricted to those with commercial interests. The Federal Trade Commission was against the availability of exclusion orders where there was a RAND obligation except in extreme and unusual cases, positing that otherwise there would be a significant risk of patent hold-up types of anticompetitive behavior by the patentee. 19 Economics and Law Professors signed a letter largely against the availability of an exclusion order. Moreover, six US Senators — Conryn, Hoever, Kohl, Lee and Risch — also spoke out essentially against the relief afforded by an exclusion order where there were RAND commitments.

The parties adopted predictably parochial positions. Apple asserted that it had not waived its RAND arguments because there is a substantive difference between an affirmative defense during the case before the ALJ, and a public interest statement to the Commission under 19 U.S.C. § 1337(d)(1). It then argued in favor of a per se rule precluding exclusion orders where there was a RAND commitment, irrespective of sufficiency of evidence for affirmative defenses.

Motorola argued that precluding exclusion orders would create disincentives to licensing and would chill standard-setting participation. It also pointed out that Congress amended § 1337 in 1988 to eliminate the injury requirement, reasoning that whether or not one may be adequately compensated by money damages is not relevant in a Section 337 case. eBay Inc. v. MercExchange, L.L.C. does not apply at the ITC for precisely that reason. Accordingly, Apple's attempt to circumscribe the availability of an exclusion order where there are RAND obligations would impermissibly reintroduce the injury requirement.

Commission's Remand, Remand and Final Determination

After having ignited a firestorm of interest, the Commission completely ignored [PDF] the public interest statements it solicited, leaving for another day the viability of RAND defenses at the ITC. The Commission reversed the finding of a violation as to the '697 patent, affirmed findings of no violation as to the '333 and '223 patents. The Commission remanded the finding of no violation of the '862 having reversed the ALJ's finding that it was invalid as indefinite.

Upon remand, the ALJ found the '862 patent infringed, but invalid as anticipated. Having voted to review the Remand Initial Determination, the Commission held that the '862 is invalid as obvious (reversing the ALJ's finding of anticipation).

Conclusion

Some ITC commentators have observed an apparent hesitancy on the part of the Commission to issue an exclusion order covering Apple's products. Whether this is coincidence remains to be seen. The ITC is under considerable political pressure, having been the subject of three Congressional hearings in the past year to which it was not even invited. Excluding a flourishing American brand such as the iPhone could evoke a political backlash against the ITC, resulting in modifications to its enabling statute.

Public interest and RAND defenses as applied to Apple are set for determination by the ITC on May 31, 2013. In Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers, 337-TA-794, the Commission has asked for briefing on these issues. Perhaps this will be the case in which the Commission finally clarifies whether public interest and RAND defenses place the products of certain US companies beyond relief at the ITC.

Rodney R. Sweetland, III and Michael G. McManus are co-chairs of the ITC Section 337 practice of Duane Morris LLP and partners in its Washington, D.C. office.

Suggested citation: Rodney R. Sweetland, III and Michael G. McManus, ITC Clears Apple Yet Again, JURIST - Hotline, May 9, 2013, http://jurist.org/hotline/2013/05/sweetland-mcmanus-ITC-clears-Apple.php.

This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org
]]> Arms Trade Treaty Shows Remarkable Progress tag:jurist.org,2013:/hotline//4.49083 2013-05-01T15:30:00Z 2013-05-01T15:35:12Z Clare da Silva, Amnesty International Sean Gallagher JURIST Guest Columnist Clare da Silva of Amnesty International argues that the new Arms Trade Treaty shows remarkable progress in the international regulation of arms transactions...

On April 2, 2013, the United Nations General Assembly voted overwhelmingly in favor of a global treaty that applies international legal standards to govern transfers of conventional weapons across borders. Of 193 member states, only three voted to reject the treaty: North Korea, Syria, and Iran.

Despite the huge margin, the adoption of an Arms Trade Treaty to regulate the international trade in conventional arms was far from a given. It took a series of shocking crises—including the wars in the Persian Gulf and in the former Yugoslavia, the 1994 Rwanda genocide, and conflicts in Africa's Great Lakes region, West Africa, Afghanistan, and in Central America—before the international community could no longer ignore the repercussions of untrammeled and irresponsible arms transfers, and began to move forward with attempts to control the global trade in conventional weapons.

Interested governments and nongovernmental organizations including Amnesty International worked for more than twenty years, seven of them under the aegis of the UN, to reach this historic climax. The goal was winning near-universal support for a treaty with the potential to save countless lives and revolutionize the 70 billion USD global trade in conventional weapons.

Understanding this watershed moment and what the treaty itself means requires a closer look at both the United Nations process and the substance of the treaty itself.

The process at the United Nations began in the UN's First Committee, rather than in the largely dysfunctional Conference on Disarmament. In 2006, seven co-authoring states, (Finland, Japan, Kenya, Argentina, Costa Rica, United Kingdom, Australia) kick-started the process by introducing a draft resolution that 153 states voted to adopt; 24 countries abstained, but only the US, under the Bush Administration, voted against the measure.

Fast-forward seven years, and it is clearly apparent that the General Assembly vote to adopt the final Arms Trade Treaty text largely reflected the same voting pattern: 155 states in favor, 23 abstentions, and 3 opposed. Clearly, those states that were committed at the beginning of the process to achieve a treaty on regulating the trade in conventional weapons remained so. The US reversed its position after the inauguration of President Barack Obama in January 2009. In the final vote on the treaty in April 2013, the US not only voted yes but also co-authored the resolution that brought the final treaty text to a vote in the General Assembly.

Another important procedural point is that the Arms Trade Treaty remained on the agenda of the General Assembly from the outset. Two conferences on the Arms Trade Treaty (July 2012 and March 2013) made it clear that the aim was to negotiate a treaty that would be accepted by consensus; but as the General Assembly remained seized of the issue throughout, it was always a possibility that a State or group of States could request a vote on a treaty text by Member States. And so in the end, the text adopted by the General Assembly was the same that would have been adopted unanimously by the negotiating conference but for the opposition of Syria, North Korea and Iran.

Negotiating on the basis of consensus ensured that a number of key exporters and importers of conventional arms participated actively in engineering the substance of the treaty's text. Keeping these key states engaged in the process was fundamental to finalizing a text that would have credibility and increase the probability that it would be widely ratified by parliaments and governments.

Treaties negotiated by all the countries of the world are always going to be complex and subject to often tedious processes of compromises and arm-twisting. The Arms Trade Treaty's negotiating process was no different and the final text is far from perfect.

But despite the compromises and what might be seen as shortcomings, the treaty itself is nothing short of remarkable.

This is significant because it is the first multilateral treaty in which states have agreed to be bound by international legal principles to regulate a variety of activities related to the international trade in conventional arms—including exports, imports, brokering, and transit shipments. International human rights and humanitarian law are at the top of the list of such criteria—something unthinkable even half a decade ago.

Article 6 of the treaty provides a clear standard for those instances when a transfer of conventional arms is absolutely prohibited. This article reflects existing international law by including prohibitions in cases when an international arms embargo is in place and where a transfer would violate a state's obligations under international agreements to which it is a party. But, importantly, it also extends existing international law by establishing an absolute prohibition of the transfer of conventional arms if a state party "has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party."

Article 7 requires a state party to conduct a rigorous risk assessment to determine whether a proposed export of conventional arms could be used to commit or facilitate serious violations of international humanitarian law or international human rights law, as well as acts of terrorism or transnational organized crime. Where there is an "overriding risk" of any of these outcomes, a state party shall not authorize the export. State parties are also required to take into account the possible risk of the conventional arms being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.

The treaty's definition of "conventional arms" is outlined in Article 2. This definition encompasses the major categories of conventional arms from the United Nations Register on Conventional Arms as well as small arms and light weapons. The inclusion of small arms and light weapons was something that the Peoples Republic of China and a number of other states resisted for many years; it was a significant victory to have them included in the array of arms whose trade is to be regulated. Although the categories of arms are extremely limited, the reality is that any state implementing the treaty in good faith will apply its obligations under the Arms Trade Treaty - especially under Articles 6 and 7 - to all items on their export control lists, which in practice is much more comprehensive that the categories of the Register.

The treaty sets out basic obligations on states parties to regulate their imports, the brokering activities within their jurisdiction, and the transit and transhipment of conventional weapons. Many of these obligations are ambiguous and left to governments to implement "as appropriate". But since the treaty can be amended and has many strong rules, it provides a firm foundation on which to construct an international system to curb the flow of arms to those persons who would commit atrocities, both in war and in peacetime. And because it builds upon and complements the existing obligations states have accepted under international law, it will become a fundamental part of the legitimate trade in conventional weapons and munitions in years to come.

The Arms Trade Treaty will be opened for signatures and ratification on June 3, 2013, at the United Nations General Assembly, and will enter into force shortly after it has been ratified by 50 states.

Clare da Silva is an independent legal consultant who provided legal and policy advice to Amnesty International on the Arms Trade Treaty for over seven years.

Suggested citation: Clare da Silva, Arms Trade Treaty Shows Remarkable Progress, JURIST - Hotline, May 1, 2013, http://jurist.org/hotline/2013/05/clare-da-silva-arms-trade.php

This article was prepared for publication by Sean Gallagher, the Section Head of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org
]]> How International Drone Policy Shapes Domestic Drone Use tag:jurist.org,2013:/hotline//4.48813 2013-04-15T17:45:00Z 2013-04-15T19:20:35Z Samar Warsi, Muslim Civil Liberties Union John Paul Regan JURIST Guest Columnist Samar Warsi of the Muslim Civil Liberties Union argues that the international drone policy sets the tone for domestic drone policy decisions...

For laws to be effective, they must have ascertainable limits.

Clear limits are determined by definitions contained within laws and the meanings we attribute to words within those definitions. If international law can be violated through manipulating key conflict definitions, constitutional parameters can be similarly manipulated to encroach on the civil liberties of Americans right here at home.

To think that the drone policy overseas has no impact on local policies is misguided, as the "permanent 'war on terror' sets precedents that slowly find their way to be used domestically for largely the same reasons they are deployed abroad."

When it comes to foreign policy, the entire drone narrative has been fraught with ambiguous language, making it difficult for the American public to pin down President Obama's policy. For example, a few weeks ago, the Obama Administration heeded the bi-partisan demand for more information and released a statement [PDF] saying that the president does not have the authority to kill "an American not engaged in combat on American soil." However, what does "not engaged in" truly mean?

Then there were the targeted killing "white papers" [PDF]; a thicket of flimsy and ill-defined terms intended to obfuscate any legal criticism of the president's actions. The document raised more questions than it answered: what does it mean to be a "senior" al Qaeda official? What constitutes "operational?" What is "imminent?" What establishes a "threat?" Who is considered a "high-level official" permitted to order the drone strike? What is the criterion for "feasible?"

An imminent threat used to be someone who represented a clear and present danger. Now it is someone who appears dangerous. The new "imminent threat" of violence does not require the US to have clear evidence that an attack on the US will take place in the immediate future. Impendency can be decided on the whim of the president. While every definition has parameters, those parameters are usually ascertainable. Here, the definition of impendency is so broad the limits are essentially meaningless.

Collateral damage used to be defined as anyone who was not a target — now it is only women and children. The narrowed definition of "collateral damage" renders "all military-age males in a strike zone as combatants ... unless there is explicit intelligence posthumously proving them innocent." In effect, we determine whether you were innocent after we kill you. There is justice, after all. In essence, there is a presumption of guilt attached to individuals in physical proximity of al Qaeda members. That the proximity could be due to a number of factors (rescue work, journalism, research and so on) other than involvement in terrorist activities seems to be an irrelevant detail to the administration.

There is a power in the use of such partisan language that tends "to embed itself in everyday discourse and, thus, appear natural, neutral and objective. There are "good guys" and "bad guys"; there is "us" versus "them." Who would not want to kill the "bad guys?" Undoubtedly, there are some individuals that should be killed — but, the sweeping and dangerous generalizations occurring at the highest government level make it difficult to tell whom.

The result is a fractured and ambiguous policy. A recently leaked White House document, acquired by McClatchy, reveals that "at least 265 of up to 482 people who the US intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaeda leaders but instead were 'assessed' as Afghan, Pakistani and unknown extremists."

Americans must demand concrete definitions which provide us with ascertainable limits of the international drone program. While the establishment of concrete definitions would not eradicate all inconsistencies in how the US deals with terror threats, it would be a step towards transparency. Details would give the drone program a legitimacy it currently lacks. It would allow us to retroactively analyze how accurate our defense programs are, assess and address policy concerns, truthfully research how our relationships with other countries are developing as a result of such programs and allow families who have been wronged to seek redress and compensation. Without any determinable guidelines, there can be neither objective evaluation nor progress.

Failing to ask for ascertainable limits of the international drone program sends one of two messages: 1) we are not paying attention to how the government is manipulating laws, or 2) we know, but we do not care. Either option sets the stage for the manipulation of laws at home. When it comes to the issue of domestic drones, the foreign drone policy sets the tone. In the context of criminal justice, specifically the "war on terror," the use of domestic drones can quickly strip away one's civil liberties under the guise of national security.

The Fourth Amendment safeguards the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" by the government. This means police need a warrant to search a person or their property, with a few exceptions. Whether government surveillance constitutes a "search" depends upon the reasonableness test set forth in Justice Harlan's concurrence in Katz v. US. The test considers whether the person has a subjective expectation of privacy in the area to be searched and whether society is prepared to deem that expectation reasonable. One's home always falls within the scope of protected areas under the Fourth Amendment.

One exception to the Fourth Amendment warrant requirement, explained in National Treasury Employees Union v. Von Rabb, is the "special needs" doctrine which requires the government to demonstrate that the government interest outweighs the intrusion. The "special needs" exception could give law enforcement a free pass to monitor specific homes when looking for domestic terror threats. Without written guidelines, law enforcement could justify any number of surveillance initiatives under the pretext of fighting the "war on terror." In addition, given the political and social stigmatization of Islam, the potential for misuse of the "special needs" exception to disproportionately target American Muslims is great. Last year's unlawful surveillance of Muslims throughout New York by the New York Police Department is evidence of this risk.

It is imperative to have clear and unambiguous written policies regarding the parameters of domestic drone use. As Noam Chomsky famously stated, we must engage in "intellectual self-defense" by staying informed. Specifically, we must scrutinize words, their meanings and their implications. Words create perceptions which form the basis for government policy, create narratives that contribute to public complacency and most importantly, dictate the scope of laws.

Samar Warsi is a Senior Volunteer Attorney for the Muslim Civil Liberties Union. She holds a BA in Political Science from McMaster University and graduated with a JD from the Oklahoma City University School of Law. She is admitted to practice in the state bar of Texas.

Suggested citation: Samar Warsi, How International Drone Plicy Shapes Domestic Drone Use, JURIST - Hotline, Apr. 15, 2013, http://jurist.org/hotline/2013/04/samar-warsi-drone-policy.php.

This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org
 ]]> US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality tag:jurist.org,2013:/hotline//4.48574 2013-04-02T18:20:00Z 2013-04-30T16:41:06Z Robert McNamara, Institute for Justice Michael Muha JURIST Guest Columnist Robert McNamara, an attorney for the Institute for Justice, argues that the standard of review that the US Supreme Court ultimately uses in deciding US v. Windsor should not be perceived as the determinative element in that case's eventual outcome...

When the US Supreme Court heard oral arguments [PDF] on March 27, 2013, in US v. Windsor, a challenge to the federal Defense of Marriage Act (DOMA), a substantial amount of energy was devoted not to the complex question of DOMA's constitutionality, but to the simple issue of what standard of review the Court would use in evaluating DOMA. Arguing for the administration of US President Barack Obama, Solicitor General Donald Verrilli urged the Court to apply "heightened" scrutiny. Arguing in defense of DOMA for the Bipartisan Legal Advocacy Group (BLAG), Paul Clement insisted the Court could only apply "rational basis" review. Then, Roberta Kaplan, who represents the actual plaintiffs in the case, noted that the Court could strike DOMA down under any standard of review. However, the unmistakable focus of her argument was the process by which the Court would conduct its analysis, rather than what that analysis would show.

As Justice Ruth Bader Ginsburg observed near the end of the argument, though, this focus is based on an unspoken — and false — assumption: that the only way citizens can ever prevail against the government is if they benefit from heightened scrutiny. But we know this not to be true. We know that citizens can prevail against the government without heightened because citizens do prevail. Once we reject the false assumption that heightened scrutiny is the only path to victory against government litigants, the analysis in Windsor becomes dramatically simpler.

Of course, this unspoken assumption about heightened scrutiny is unsurprising, if only because it is the same assumption held by a seemingly huge swath of lawyers. "Strict scrutiny" is seen as code for "the government always loses," whereas "rational basis review" is seen as code for "the government always wins." Thus, the parties' approach is understandable: if the level of scrutiny determines the outcome, it makes sense to expend energy on arguing the level of scrutiny.

The problem with this approach is that it does not accurately describe how the rational basis test works in fact. It is, of course, a truism that the rational basis test is extremely deferential to government, and any consitutional-law student worth her salt can point to sweeping dicta about how the test requires courts to avoid questioning "the wisdom, fairness, or logic of legislative choices" (as stated in FCC v. Beach Communications) and requires a plaintiff to "negative every conceivable basis" for a challenged law (as stated in as stated in Heller v. Doe). Such dicta undeniably exists; the problem with it is that it cannot be squared with the Court's actual decisions in rational basis cases.

As described, the rational basis test embodied by this sweeping dicta imposes a literally impossible burden. A savvy attorney (or a savvy judge) will always be able to conceive of a rationale that isn't specifically "negative[d]" by a plaintiff's evidence. If that is how the test works, we should expect every single claim to fail, every single time.

And yet they do not. In fact, rational basis plaintiffs have succeeded, again and again. They have succeeded in famous court decisions, like Lawrence v. Texas or Romer v. Evans, and they have succeeded in cases that many people have never heard of, like Williams v. Vermont (which dealt with automobile taxes) and Zobel v. Williams (which dealt with how Alaska distributed the funds from the state's oil revenues). Of the more than 100 cases since 1970 in which the Supreme Court has applied the rational basis test to answer a question, the Court has answered that question in the plaintiffs' favor more than 20 times.

This alone tells us that characterizing the rational basis test as one where "the government always wins" is false. The test described in this sweeping dicta simply can't be squared with the many cases in which the Court has applied the test and found the government wanting. If that description is false — and it is — only one question remains: why do plaintiffs win rational basis cases?

The answer is clear: plaintiffs win these cases because, despite the sweeping commentary about how deferential the rational basis test is, the Court does not actually treat the test as a requirement that it abandon its basic judicial function. The Court looks to see whether a purported rational basis for a law can be squared with the real facts in the record. It looks to see whether there is a logical connection between what the government says its ends are and what the government is actually doing. It looks to see whether the government's ends are legitimate, and whether the government can actually be believed to be pursuing its stated ends (as opposed to other, illegitimate purposes). It is true, of course, that the Court is deferential when it applies the rational basis test, but it is not absent. It still demands both truth and logic from government litigants — and when one of the two does not support a challenged law, that law falls.

This simple insight — that the rational basis test, in practice, is a test and not simply an excuse to rule in favor of the government — has significant implications for the Court's decision in Windsor. The crux of the plaintiff's argument in the case is that the government's stated objectives cannot be believed — that, as a matter of fact, it is implausible to believe that the federal government is achieving a legitimate federal purpose by refusing to recognize state-sanctioned same-sex marriages. This is a question that the Court can answer, and one it can answer without resort to abstract inquiries about the "level" of scrutiny it is allowed to apply. It can simply look at the facts and determine whether the government's asserted interests can be squared with the evidence of what the government is actually doing. It can, in a word, judge.

The advantage to this approach is two-fold. First, it allows the Court to avoid the heightened-scrutiny question altogether. After decades of experimentation, the Court's attempt to fit the realities of American government into strict "tiers" of scrutiny has yielded a jurisprudence that is, at best, inconsistent and difficult to justify on principle. More through historical accident than consistent analysis, some characteristics (like whether one's parents were married) yield higher levels of judicial protection, while others (like one's level of educational attainment or simply one's level of political influence) do not. Delving back into the tiered-scrutiny thicket to decide whether one more subgroup of Americans is (or is not) entitled to meaningful judicial review is unlikely to improve matters.

Second — and, for millions of Americans whose constitutional rights deserve equal protection, perhaps more importantly — this allows the Court to once and for all reject its most expansive dicta about the rational basis test and reaffirm a simple truth: the US Constitution requires judges to look at facts in all cases. There exists no standard of review under which the Court may simply disregard logic. There exists no standard under which the Court may disregard facts, nor one under which the Court will allow itself to be lied to about a law's real purposes or effects. Finally rejecting the aforementioned dicta and explicitly embracing an articulation of the rational basis test that accurately explains all of the Court's rational basis decisions (the ones where the government wins and the many where the government loses) will not just clarify the Court's jurisprudence. It will also be a bedrock victory for real judicial engagement by reassuring judges in lower courts that they are allowed to do their jobs — to look at evidence with their eyes open and their minds engaged — in all cases.

Nothing could be simpler. But, for litigants across the country, nothing could be more important.

Robert McNamara serves as an attorney with the Institute for Justice. He joined the Institute in August 2006 and litigates constitutional cases protecting First Amendment rights, property rights, economic liberties and other individual liberties in both federal and state courts.

Suggested citation: Robert McNamara, US v. Windsor: Rational Basis Review Should Not Preclude Unconstitutionality, JURIST - Hotline, Apr. 2, 2013, http://jurist.org/hotline/2013/03/robert-mcnamara-rational-basis-windsor.php

This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org
]]> The Evolving Nature of Universal Jurisdiction in Rwanda tag:jurist.org,2013:/hotline//4.48411 2013-03-28T14:30:00Z 2013-03-28T01:26:07Z Eric Leonard, Shenandoah University Michael Muha JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, argues that the ongoing pursuit of justice 19 years after the Rwandan genocide is a positive step for international criminal justice that should be praised, not dismissed...

Around this time 19 years ago, two crucial events occurred in the tiny African nation-state of Rwanda. First, Human Rights Watch (HRW) posted a report [PDF] that detailed the continued arming of militias in Rwanda. This document, "Arming Rwanda," paints a clear picture of the situation on the ground and the possible consequences of illegally importing arms to Rwanda. Second, the UN general overseeing the peacekeeping operation in Rwanda, Romeo Dallaire, had his request to raid the arms cache denied by the UN. The result, as we are now well-aware, was a rapid decline into one of history's most horrific genocides. Beginning on April 6, 1994 and continuing for one hundred days after, genocide claimed the lives of at least 800,000 people in Rwanda.

Today, Rwandans still cope with the aftermath of this egregious act. Recently, a Rwandan accused of complicity in the genocide was arrested in France, showing the conflict's continued effects. This also initiates discussion of how best to judicially cope with such situations, since the response to Rwanda was and remains multifaceted. Such an approach may represent the future of international criminal justice and the culmination in the battle to end impunity.

On a globalized level, the UN Security Council (UNSC) established the International Criminal Tribunal for Rwanda (ICTR) in 1994. Having completed 72 cases, with one still in progress, the ICTR has been successful. However, it has not been void of criticism, as nine accused individuals remain at large. As the work of the court comes to a close, I am sure that a more detailed assessment of its work will occur. Presently, it appears that the court's mandate was fulfilled — albeit in a limited number of cases — and a piece of the "justice puzzle" has been put into place.

Along with these international justice efforts, there was also a robust domestic response. Rwandans took justice into their own hands — a necessity given the sheer magnitude of the crimes and the number of alleged perpetrators. One of the more interesting methods in use are the gacaca courts. These localized forums of justice are more communal and less judicial. Their purpose focuses more on restorative justice than retribution, with an emphasis on healing the community through the proceedings. They are seen as a necessary means of bringing realistic justice in the wake of the 1994 genocide.

A third method of pursuing justice in Rwanda derives from universal jurisdiction: the concept of prosecution by a state that has no direct territorial or personal relation to a case. In other words, the crime being prosecuted under universal jurisdiction is not committed on the territory of the prosecuting state, nor is the perpetrator or victim a national of the state. One such prosecution was the 2001 trial of the "Butare Four" in Belgium. On June 8, 2001, the Assize Court of Brussels found Alphonse Higaniro, Vincent Ntezimana, Sister Gertrude (Consolata Mukangano) and Sister Maria Kisito (Julienne Mukabutera) guilty of crimes committed during the 1994 Rwandan genocide. Although all of the accused were residing in Belgium at the time of their arrest, none of the Butare Four were Belgian citizens, none of the victims were Belgian citizens and none of the crimes were committed on Belgian soil. The trial and prosecution of the Butare Four appears to be a case of pure universal jurisdiction — one of the few in human rights' legal history.

However, this is just one example of many cases in which universal jurisdiction has been cited as legal justification for prosecuting Rwandan citizens outside of Rwanda and the ICTR. The most recent occurred on February 14, 2013 in Norway, where the Oslo District Court found Sadi Bugingo guilty of complicity in the premeditated killings of at least 2,000 people — most of them Tutsi citizens.

Enter the current case of France and its relationship to the 1994 genocide. The case under discussion involves the arrest and possible extradition of Rwandan citizen Innocent Musabyimana. Such extradition is not unprecedented; other cases pending in French courts indicate that the French government is willing to prosecute Rwandan citizens. However, Musabyimana would be the first Rwandan citizen that France actually prosecutes. Despite these developments, the Collectif des Parties Civiles pour le Rwanda (CPCR), an association that pursues genocide suspects living in France, insists that this marks only a small step in the effort to prosecute genocidaires living in France.

Skepticism aside, these cases encapsulate the many means of achieving global justice and the necessary cooperation in the struggle to end impunity. France's arrest of these Rwandans, as well as their possible extradition, reinforces both the international nature of the crimes committed and France's increasing desire to assist Rwanda in its quest for justice. Given the somewhat cold relationship that these two countries have had since the 1994 genocide, this is a very positive diplomatic step. The situation also reveals the ever-evolving nature of addressing human rights violations on an international level, which should not be disregarded. International criminal justice is making strides in a variety of ways, and this should be applauded, rather than constantly criticized.

Eric Leonard is the Henkel Family Chair in International Affairs at Shenandoah University. His primary areas of expertise are global politics, foreign policy, human rights, humanitarian law and political philosophy. He has published several articles and is the author of The Onset of Global Governance: International Relations Theory and the International Criminal Court.

Suggested citation: Eric Leonard, The Evolving Nature of Universal Jurisdiction in Rwanda, JURIST - Hotline, Mar. 28, 2013, http://jurist.org/hotline/2013/03/eric-leonard-rwanda-justice.php

This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org
]]> 'Too Little Justice': Misdemeanor Defendants in the US tag:jurist.org,2013:/hotline//4.48430 2013-03-22T17:30:00Z 2013-03-22T18:10:40Z Alba Morales, Human Rights Watch Stephanie Kogut JURIST Guest Columnist Alba Morales, a researcher with Human Rights Watch, argues that indigent defendants are not receiving proper instructions regarding their right to counsel, a problem leading to uneducated plea bargains...

The day's business in the Midland County Court Court-at-Law #2 in Midland, Texas, begins promptly at 9 a.m. every day. Judge Marvin L. Moore addresses the crowded courtroom, as well as some defendants who are "attending" via videoconference from jail. He rattles off the defendants' rights at what seems like an auctioneer's pace ("You have the right to a trial, to be represented by an attorney at trial, to cross-examine witnesses..."), dispenses a few admonitions ("a DUI can cost you your license if you are under 21," if you are not a citizen "a plea can result in deportation") and concludes with a quick primer on court procedure — all inside of four minutes.

Moore calls the first case. A prosecutor informs the defendant of the charges against him. The defendant confers with one of the half-dozen prosecutors in the courtroom, then enters a plea of guilty. It's 9:05 a.m.

This pace rarely lags as the day wears on, and the routine varies little: the judge delivers his rapid-fire recitation; charges are read; defendant huddles with prosecutors to negotiate a plea deal; defendant pleads guilty. In fact, of the 50 defendants who appeared before the judge on this particular Thursday in February on charges ranging from shoplifting to assault, 36 entered pleas of guilty or no contest.

Not a single defendant received a single word of defense advice (there are no defense attorneys in the courtroom, only prosecutors). Nor does Moore explain to defendants that they have the right to be appointed an attorney if they cannot afford one. And yet, every defendant who entered a plea that day gave up fundamental rights, was exposed to a possible term of imprisonment and, in many instances, received a criminal conviction. A misdemeanor conviction, which can carry a sentence ranging from a fine to a year in jail, can have far-reaching consequences that range from making people ineligible to hold certain jobs to affecting eligibility for student loans, public housing and food stamps.

Fifty years ago this month, the US Supreme Court ruled in the landmark case of Gideon v. Wainwright that defendants charged with a felony have a constitutional right to counsel in criminal trials, even if they cannot afford one themselves. Nine years after Gideon, the Supreme Court expanded that right to misdemeanor cases in which defendants face possible jail time.

I went to Midland because I had heard that poor people in this West Texas county, particularly those charged with misdemeanors, have a very difficult time enjoying their right to counsel. The numbers appear to bear this out: in Midland in 2012, defendants were appointed counsel in slightly more than 6 percent of misdemeanor cases, compared with almost 40 percent in the state of Texas as a whole. While nobody tracks nationwide data on the appointment of counsel, a 1996 survey of inmates in local jails [PDF] around the country found that over a quarter of misdemeanor defendants did not have an attorney. Thus, Midland represents one of the worst cases of an already bad situation nationwide.

It is unclear why so few Midland defendants receive any legal advice prior to pleading guilty. Like most criminal courts in the country, the Midland court seems to prize efficiency. One private defense attorney I spoke with said that this emphasis on efficiency was certainly part of the attitude in Midland. He said that a defendant really had to push to get assigned counsel, and it was not something that judges agreed to easily or took the time to explain. Also, like most counties in Texas, Midland lacks a public defender office (only 91 of Texas' 254 counties have public defenders).

This failure to protect the right to counsel runs counter to both the US Constitution and international human rights law. In 1992, the US became party to the International Covenant on Civil and Political Rights (ICCPR), which requires a defendant "to have legal assistance assigned to him, in any case where the interests of justice so require[.]"

While the UN Human Rights Committee — the international expert body empowered to interpret this treaty — has mostly applied the ICCPR in the context of serious crimes, in one instance the committee did address the absence of counsel in a minor crime. It found that a defendant who had received ample due process protections, including access to his case file, and months to prepare his case, did not need assigned counsel. (It is relevant to note that the Committee described him as the operator of a "business firm" — perhaps indicating a lack of indigency).

None of the defendants I met in Texas had similar due process protections. The
European Court of Human Rights has recognized the importance of the right to appointed counsel for the poor even in non-criminal cases, such as divorce proceedings. While the interests at stake during divorce are certainly important, the possibility of incarceration and criminal sanctions faced by misdemeanor defendants are at least as important.

The process I saw in Midland did not comport with these international standards, sacrificing "the interests of justice" and fair procedure to efficiency. Indeed, many of the defendants I spoke to on my visit were so perplexed by the rapid-fire procedures they were subjected to that they seemed to have little-to-no understanding of what was going on.

One defendant who had just pleaded guilty to misdemeanor assault seemed baffled by what had just transpired. When I asked him why he did not insist on a lawyer, he told me that the prosecutor who had handled his plea agreement warned him that if he chose to retain legal representation, she would insist on the maximum penalty (a year in jail) rather than the $750 fine she was offering him under the plea agreement. "I can't do a year," he said. Another man told me from the county jail, where he had already spent a month incarcerated, that he entered a guilty plea to driving while intoxicated because he was afraid he would lose his job and be unable to pay child support if he were jailed any longer. He was unaware that he had a right to assigned counsel.

Misdemeanor pleas are serious. They often result in defendants spending some time in jail and can have serious collateral consequences, such as deportation. Perhaps not every case requires appointment of counsel, but minimum improvements can be made in Texas and across the US, such as establishing clearer procedures to inform defendants of their rights and affirming a stronger commitment to increasing attorney appointment rates, including in misdemeanor cases.

By some estimates [PDF], ten times as many misdemeanors as felonies are prosecuted in US courts. In 2012, Midland County prosecuted more than twice as many misdemeanor charges as felony charges. Texas as a whole has improved its indigent defense following the passage of the Fair Defense Act in 2001 [PDF], which provided additional funding and oversight for indigent defense services, but the majority of Texans charged with misdemeanors still plead guilty without the benefit of the advice of counsel.

Fifty years after Gideon and its progeny, and two decades after the US became party
to the applicable international treaty, the failure to make better progress is glaring. A justice system that denies fundamental rights to most of the people who come before it is handing down too little justice.

Alba Morales is a US researcher at Human Rights Watch. Follow her on twitter @AlbaHRW.

Suggested citation: Alba Morales, 'Too Little Justice': Misdemeanor Defendants in the US, JURIST - Hotline, March 22, 2013, http://jurist.org/hotline/2013/03/alba-morales-misdemeanor-defense.php

This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org
]]> The Government is Using al Bahlul v. US to Maintain the Political Status Quo tag:jurist.org,2013:/hotline//4.48296 2013-03-21T18:05:00Z 2013-04-07T18:04:30Z Shane Kadidal, Center for Constitutional Rights John Paul Regan JURIST Guest Columnist Shane Kadidal of the Center for Constitutional Rights argues that even if the government's petition for en banc review of al Bahlul v. US fails, it will nonetheless succeed in maintaining the political status quo of the Obama administration...

There are, basically, only two ways to leave Guantanamo today: in a coffin, or by pleading guilty in a military commission and serving out your sentence. Since this gives most detainees a shared incentive with the military prosecutors to arrange for plea-bargained convictions, it might surprise readers to hear that hardly any cases are moving forward in the commissions today. That is largely because of two rulings from the US Court of Appeals for the District of Columbia Circuit, Hamdan v. US (Hamdan II) and al Bahlul v. US. Those opinions reversed convictions for providing material support for terrorism (Hamdan II) and conspiracy (Bahlul) in the military commissions created by Congress in the Military Commissions Act of 2006 [PDF] (MCA).

The Hamdan II court held that a material support prosecution under the 2006 statute for conduct that took place before 2006 would raise serious constitutional questions under the ex post facto clause prohibiting the government from retroactively criminalizing actions. Hamdan was detained, like nearly every Guantanamo detainee, well before 2006. Rather than deciding the constitutional question, the Hamdan II panel avoided the issue by basing their ruling on statutory grounds: Congress, the Court said, did not intend to retroactively criminalize anything that was not already a crime under the customary international law of war. Since material support was not an acknowledged crime under the international law of war (something even the government conceded), Hamdan's conviction had to be overturned.

The government did not appeal, perhaps in part because Hamdan had already been released, having served out his sentence. Eventually, though, stories surfaced claiming a deep rift between the US Department of Justice (DOJ) (which supposedly wanted to appeal) and the military prosecutors (who, apparently, thought the DC Circuit was correct).

A second opportunity arose when Ali al Bahlul's appeal came to the circuit court. Al Bahlul had been sentenced to life on conspiracy charges related to his role as a propagandist for al Qaeda. The government filed a curious brief [PDF] on appeal, noting that if Hamdan II were correct, then al Bahlul's conspiracy conviction must fall as well, since the Hamdan II panel decision was precedent binding all subsequent panels in the DC Circuit. Conspiracy, like material support, was also concededly not a violation of the international law of war. However, the government reserved the right to seek reconsideration of whether the Hamdan II panel was correct before the full DC Circuit, sitting en banc, and, perhaps, subsequently before the US Supreme Court as well.

The panel in al Bahlul's appeal ultimately vacated his conviction. The impact of the decisions in Hamdan II and al Bahlul, should they stand, will be great: according to my informal count, material support or conspiracy have been included as charges in 28 of the 30 charge sheets filed in the military commissions since the MCA passed. Remove those generic offenses and it becomes increasingly difficult for the relatively non-culpable mass of detainees, not cleared for release by the Obama administration, to find something plausible to plead guilty to. Without something to plead guilty to, these detainees will simply sit indefinitely in detention, as it has become practically impossible [PDF] to win release through habeas corpus. Furthermore, the politics of bringing detainees to the US for trial have foreclosed federal criminal courts as a possible option.

What is the government seeking to appeal in its petition [PDF] for en banc review in al Bahlul? Curiously, it's not the notion that conspiracy was a recognized war crime under international law. As with material support, the government does not even argue that conspiracy is an international war crime. Instead, the en banc petition argues that the Hamdan II panel was wrong to look exclusively to the international law of war. Instead, the DOJ claims there are domestic precedents for prosecuting conspiracy in military commissions, mostly during the US Civil War. While the petition states this "traditional practice is especially clear regarding conspiracy," one imagines there is no such early precedent for the relatively recent concept of material support. Perhaps, this provides intellectual consistency to the DOJ's decision to pursue en banc review in al Bahlul but not in Hamdan II.

The question at issue is whether the courts should decide whether conspiracy was an established war crime under the customary international law of war, or whether it is enough to simply find that conspiracy was established as a war crime under the "domestic common law" of war — the past practices of only American military commissions. The Hamdan II panel gave only the briefest treatment to this question of international and domestic law because it thought the question conclusively decided in favor of international law by the Supreme Court in Hamdan v. Rumsfeld (Hamdan I).

The issue certainly appeals to those in Congress who oppose all attempts by American courts to apply anything calling itself "international" law. Will it appeal to anyone in a black robe? For insight we need to turn to the distasteful business of counting votes. On the DC Circuit, we know that Judges Kavanaugh, Ginsburg and Sentelle — the panelists in Hamdan II — will not agree with the government. Justice Douglas Ginsburg was a senior judge when the panel sat and Sentelle has since taken senior status, removing him from the en banc voting pool. Their opinion will certainly carry weight with their colleagues. Judges Randolph and Silberman, who have written many vituperative opinions in Guantanamo cases since Boumediene, also have senior status and will not vote. Of the six remaining active-duty judges, two are liberals (Tatel, Rogers) and one a moderate Democrat (Garland). The DOJ would need to win one of their votes to get to an en banc hearing. This seems unlikely.

It is worth noting that there are four vacancies on the court at the current time. However, all four are likely to remain open for some time. President Barack Obama has made only two nominations, one of whom (Caitlin Halligan) was successfully filibustered earlier this month. The Democrats are apparently unwilling to push back against the stonewalling, content to see what happens with the other nominee, Sri Srinivasan — a lawyer in President George W. Bush's solicitor general's office who appeared in many national security cases — rather than pushing a full complement of four nominees before the Senate. Even if Srinivasan could make it onto the bench in time, a 4-4 split would not be enough to give the government en banc review — a flat-out majority is required.

What about the Supreme Court? Hamdan had an appeal go there already, in a case challenging the military commissions Bush created by executive order. In that 2006 decision, Hamdan I, the Court overturned the commissions system because it was not authorized by statute. Congress responded by passing the MCA which created the current commissions system. There was an additional issue that the Court almost decided — whether conspiracy was a traditional war crime triable by commission. Four of the eight justices voting in Hamdan I (there was one recusal, Chief Justice John Roberts) held that conspiracy was not a crime recognized under the relevant common law of war: common law of war offenses needed to have "clear and unequivocal" precedent and the international precedent was not there — most pointedly at Nuremburg. Even as to domestic past practice, the Court said that "[t]he crime of 'conspiracy' has rarely if ever been tried as such in this country by any law-of-war military commission not exercising some other form of jurisdiction" such as that originating with military governance of an area under martial law.

Why, then, try to push the same issue before the Court now? Well, those four justices were Justices John Paul Stevens, David Souter, Stephen Breyer and Ginsburg and the former two are no longer on the Court. Their replacements — like every new justice since Stevens joined the court in 1975, except Ginsburg — have been more conservative than those they replaced. Nonetheless, it still seems unlikely that Justices Sonia Sotomayor or Elena Kagan will endorse the DOJ's position.

That leaves Justice Anthony Kennedy. His concurrence in Hamdan I, the deciding fifth vote, found it premature to reach the issue of whether conspiracy was an offense under the common law of war. Writing only for himself in Part III of his concurrence in Hamdan I, he reserved the issue. Earlier in his opinion, Kennedy noted that the "law of war ... derives from 'rules and precepts of the law of nations'; it is the body of international law governing armed conflict." That's hardly hopeful language for the government on the one issue on appeal in al Bahlul: whether international or domestic common law is the touchstone for determining whether conspiracy was a recognized war crime.

The only grounds for optimism for the government is that Kennedy, in refusing to reach the conspiracy issue, noted that "Congress may choose to provide further guidance" regarding the "validity of the conspiracy charge," and that "Congress, not the Court, is the branch in the better position" to make that determination. Perhaps the government is thinking Kennedy will find Congress' codification of conspiracy as an offense in the MCA (passed four months after the Hamdan I decision) adds weight to the government's position. Kennedy also said the task of establishing offenses left to Congress was a "sensitive task of establishing a principle not inconsistent with the national interest or international justice[,]" (emphasis added). Again, that hardly seems grounds to think Kennedy will find the "domestic common law of war" argument persuasive.

The government's appellate strategy is a long shot. It was certainly not forced by the need to keep al Bahlul in custody. Al Bahlul has shown no inclination to work with lawyers so far. Nothing in the public record would lead observers to expect that he would pursue a habeas petition. He seems to be facing life detention at Guantanamo whether or not his conviction stands.

The political status quo is furthered by taking such a long-shot appeal. By drawing this issue out through the appellate process, the administration will be able to continue asserting that commissions are a viable forum for trying Guantanamo detainees. Instead of bringing the political fight to the demagogues in Congress — and elsewhere — who opposed civilian court trials for Guantanamo detainees, the president can claim that he is waiting for the Supreme Court to change the Hamdan II ruling so that he can move cases forward offshore. Meanwhile, only the existing prosecutions of the 9/11 and Cole plotters will move forward — both cases involve charges other than material support and unadorned conspiracy — distracting from the fact that nothing is happening for the other 28 remaining detainees designated for prosecution. Maintaining the status quo has been the central principle of Obama's counterterrorism strategy. Unlikely as it is to succeed, the en banc petition in al Bahlul would fit that pattern.

Shane Kadidal is senior managing attorney of the Guantanamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a graduate of the Yale Law School and currently works as an adjunct professor at the University of Michigan Law School.

Suggested citation: Shane Kadidal The Government is Using al Bahlul v. US to Maintain the Political Status Quo, JURIST - Hotline, Mar. 21, 2013, http://jurist.org/hotline/2013/03/shane-kadidal-guantanamo-bahlul.php


This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

]]> Technological and Administrative Doubt: Kenya's 2013 Elections in Perspective tag:jurist.org,2013:/hotline//4.48318 2013-03-17T14:00:00Z 2013-04-22T16:35:13Z George Kegoro, International Commission of Jurists Clay Flaherty JURIST Guest Columnist George Kegoro of the International Commission of Jurists argues that the results of the 2013 presidential election in Kenya are unavoidably marred by technological failures and the shortcomings of the Independent Electoral and Boundaries Commissions...

Now that Kenya has completed the general elections for 2013, which ended with the declaration of Uhuru Kenyatta as the fourth president of Kenya, it is useful to reflect on the whole electoral process in perspective.

The country must be relieved that large-scale violence — a hallmark of the elections in 2007 and about which there was much fear — did not materialize this time round. However, there was still serious violence, most notably in the coastal regions of Kenya where alleged members of the Mombasa Republican Council (MRC) staged a series of daring attacks aimed at preventing voting. To their credit, the people of the coast bore the threat of violence with great stoicism and still voted in numbers. There is fear, however, that those numbers would have been larger if the violence had not happened.

In retrospect, the government must review its approach in tackling this group. It should be remembered that in July 2012, the High Court of Kenya gave a breath of legality to the MRC by lifting a ban that had been imposed on the group by the Kenyan government, which regarded it as an "organized criminal group." At the time, the MRC was not known to espouse violence as a means of achieving its secessionist agenda. The attacks last week have changed all that and it will now be difficult for the MRC to justify their continued right to legal protection. The attacks last week must lead to a re-appraisal of the group with a view towards bringing about an end to its activities.

The elections gave the Independent Electoral and Boundaries Commission (IEBC) its first chance to run an election. Formed only in 2010 in the place of the now-defunct Electoral Commission of Kenya, the IEBC has not had the opportunity to run elections before. While acknowledging that these elections were novel in many ways — as they gave rise to a situation in which the electorate was required to elect six offices in the place of the three traditional offices in Kenya — the IEBC did not meet the challenges particularly well. Two issues are worth noting in this regard.

Not unexpectedly, voting was very slow as there were many elections in one. This led to massive queues around the country, the worst of which were in urban centers, particularly Nairobi. The violent attacks in Mombasa also led to a delayed start of polling in the affected areas. The effect of these delays was that the IEBC had completed the voting and started the announcement of results in some areas, while Kenyans in other areas were still standing in slow-moving queues, waiting to vote. This is highly undesirable, as the announcements probably affected the electoral choices of those that were involved. Not surprisingly, one of the participating political parties complained about this reporting problem in the immediate aftermath of the election. With better planning, the IEBC could have minimized these delays. In the future there should be a reporting deadline before which the transmission of election results cannot begin so as to allow those that are still waiting to vote to do so without the influence of rolling results.

In these elections, the IEBC embraced technology to promote accountability. Without exception, all of that technology failed. Specifically, the biometric voter registration system (BVR) aimed at identifying voters and preventing ballot stuffing were scrapped by the IEBC in the run-up to the election. In most places, the failure of these systems were the result of the batteries of laptop computers running out of electricity — often within one hour of the start of the voting. Surely, it was foreseeable that computer batteries would need to be charged. IEBC's failure to prepare for this after the organization acquired the expensive BVR kits smacks of monumental incompetence. The IEBC must be held accountable.

As a result of this technological failure, there will always be a difficult-to-dispel suspicion surrounding the election results. The Kriegler Commission, which identified the problem of the 2007 elections, dealt with the issue of improbably high voter turnouts and recommended [PDF] reforms. Based on the performance of the IEBC, Kenya is still far from achieving reforms against ballot stuffing and related malpractices.

There was also a failure of the electronic results transmission system. In the face of this failure, the IEBC resorted to a manual tallying of results which has been criticized for its lack of transparency. In particular, the failure of the transmission system resulted in an inability on the part of the IEBC to declare results as and when they were available. Delayed declaration is regarded as prone to fraud. As part of this manual tabulation system, the IEBC used Form 36, which was used to collate polling-station-level election results. As a direct result of this failure, there will always be inherent doubt as to the integrity of these election results.

Throughout these elections the media and other sectors of society — perhaps nervous about the failed elections of 2007 — shunned stories portraying problems with the management of the elections, in general, and the shortcomings of the IEBC in particular. In truth, the presidential elections of 2013, like those of 2007, have been a failure. The similarity is that, like Mwai Kibaki in 2007, Kenyatta has acquired a massive mandate without a commensurate amount of popular legitimacy. The difference is that the failure in 2007 produced violence. Fresh memories of such post-election violence no doubt helped this time around.
The overall lesson from the 2013 elections is that Kenya is still a long way from carrying out credible national elections. In the coming months, these problems must be addressed; starting with an audit of the affairs of the IEBC including the expensive, but ultimately useless, gadgets acquired to run the elections.

George Kegoro is the Executive Director of the Kenyan Section of the International Commission of Jurists.

Suggested citation: George Kegoro, Technological and Administrative Doubt: Kenya's 2013 Elections in Perspective, JURIST - Hotline, Mar. 17, 2013, http://jurist.org/hotline/2013/03/george-kegoro-kenya-election.php.


This article was prepared for publication by the staff of JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org

]]> Michigan's So-Called 'Right to Work' Laws Face Legal Challenges tag:jurist.org,2013:/hotline//4.48119 2013-03-14T13:30:00Z 2013-03-14T00:42:24Z Karla Swift, Michigan State AFL-CIO Theresa Donovan JURIST Guest Columnist Karla Swift of the Michigan State AFL-CIO argues that the "right to work" laws enacted by the Michigan Legislature in 2012 are unconstitutional and were enacted in violation of Michigan's Open Meeting Act...

The Michigan State AFL-CIO is currently pursuing two separate litigation paths challenging the so-called "right to work" laws, which were rushed through the Michigan Legislature and hastily signed by Governor Rick Snyder in December 2012. We firmly believe that, one way or another, these unjust laws will be overturned.

As JURIST previously reported, the Michigan State AFL-CIO, together with the Change to Win Coalition and the Michigan State Building and Construction Trades Council, filed a lawsuit in US District Court for the Eastern District of Michigan challenging the constitutionality of Public Act 348 (PA 348) [PDF], the new right to work law covering private sector employers and workers.

PA 348 violates the Supremacy Clause of the US Constitution by imposing state regulation in an area that is preempted exclusively by the National Labor Relations Act (NLRA). Specifically, PA 348 violates the Supremacy Clause by invading federally preempted regulation of private sector labor management relations it at least the following respects:

  • It imposes penalties for violation, such as civil fines, criminal penalties, and a private right of action, which are not provided for under the NLRA;
  • It regulates an employee's right to "refrain from" organizing, bargaining and other concerted workplace activities;
  • It regulates conduct aimed at causing individuals to refrain or resign from union membership and union financial support;
  • It restricts union-administered employment referral and "hiring hall" arrangements;
  • It invalidates an entire collective bargaining agreement between an employer and workers if any provision violates 2012 PA 348.

These unconstitutional provisions are not severable from the rest of the law and, therefore, our lawsuit calls on the court to permanently enjoin Michigan from enforcing right to work in the private sector.

Our state's newly adopted right to work laws are also subject to challenge based on the unprecedented way in which they were enacted. The Michigan State AFL-CIO has joined with other union organizations, the American Civil Liberties Union (ACLU), legislators and journalists as plaintiffs in an action to challenge the new right to work laws on the grounds that they were passed in violation of Michigan's Open Meetings Act [PDF].

The case was filed in Ingham County Circuit Court and charges that government officials, in an unprecedented assault on democracy, deprived the public of their right to participate in and observe the legislative process, by locking citizens out of the Michigan State Capitol while crucial legislative action was taking place. Under Michigan's Open Meetings Act, citizens have a stake in seeing that our government conducts business in a democratic and transparent way. No laws should be passed while citizens are locked out of their Capitol building.

In addition to being illegal, the secretive conduct of the legislature was shameful. It's particularly disturbing that journalists were prevented from providing complete coverage of this historic lame duck session. The public has a right to know what their government is doing. These are the facts alleged in the complaint:

  • On Dec. 6, 2012, the Michigan Capitol doors were locked to prevent additional people from coming to witness or engage their legislators while the controversial right to work bills were being debated on the House and Senate floors.
  • The public, including some journalists, were locked out for more than four hours while legislators debated and voted on the bills.
  • While individuals already in the Capitol could stay, people waiting outside were not allowed to enter.
  • The galleries overlooking the House floor were intentionally packed with legislative staffers so that the public would not be allowed in.
  • The lockout at the Capitol merely added to the legislators' attempts to swiftly pass these bills with little public input. The bills were abruptly introduced during the last days of the lame-duck legislative session, already a period of diminished public accountability.
  • Rather than allowing the bills to go through the standard committee hearing process where the public would have been invited to comment, the right to work language was introduced for the first time on the House and Senate floors on the same day the bills were passed.
  • As further evidence of the desire to prevent the public from holding their government accountable, the lawsuit also notes the appropriations provision that was added to make the legislation referendum-proof under the Constitution of Michigan.

Like its private-sector counterpart, Public Act 349 (PA 349) — the so-called right-to-work amendment to the Public Employee Relations Act (PERA) [PDF] — was hastily enacted in a few days during the lame duck session in December 2012. Snyder and Attorney General Bill Schuette assert that PA 349 applies to Michigan's classified civil service, despite decades of case law reaffirming that the exclusive and plenary jurisdiction of the Michigan Supreme Court takes precedence over attempts by the legislature to regulate employment in the civil service. The application of PA 349 to the civil service not only would violate the Constitution of Michigan, it would exceed the legislature's powers and conflict with PERA itself.

In an attempt to short-circuit the normal judicial process for deciding such questions, the governor has requested an advisory opinion from the Michigan Supreme Court as to whether the application of PA 349 is constitutional. We believe that the question should be given full due process in the lower courts and, therefore, the Michigan State AFL-CIO has filed an amicus brief urging the court to reject the governor's request.

At the time this article was submitted, the Ingham County Circuit Court had dismissed the case against PA 349 on jurisdictional grounds; a similar suit was subsequently filed with the Michigan Court of Appeals. The Michigan Supreme Court has yet to respond to the governor's request for an advisory opinion.

Without intervention, right to work laws for both public and private sector workers will go into effect on March 27, 2013. In the event that these policies are enacted temporarily, the Michigan State AFL-CIO will continue to pursue all legal and political avenues available to have these unreasonable collective bargaining restrictions reversed. Working people will continue to organize, and the labor movement will overcome this obstacle.

Karla Swift is the President of the Michigan State AFL-CIO.

Suggested citation: Karla Swift, Michigan's So-Called 'Right to Work' Laws Face Legal Challenges, JURIST - Hotline, Mar. 13, 2013, http://jurist.org/hotline/2013/03/karla-swift-michigan-right-to-work.php


This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org

]]> ICC Must Strengthen Sexual Violence Protections tag:jurist.org,2013:/hotline//4.48070 2013-03-07T18:00:00Z 2013-04-03T02:27:57Z Chris Reis, University of Denver; Lynn Lawry, Brigham and Women's Hospital Theresa Donovan JURIST Guest Columnists Chen Reis of the University of Denver and Lynn Lawry (pictured) of Brigham and Women's Hospital argue that unified action must be taken by parties other than the International Criminal Court in order to provide adequate and sustainable support for victims of sexual crimes during and post-conflict...


The conflict in the Democratic Republic of Congo (DRC) has been marked by reports of human rights violations against civilians. Particular attention has been paid by media, activists and policy makers to the use of sexual violence by armed forces in the DRC as a "tactic of conflict." This form of violence has been associated with the government as well as those fighting against the regime of President Joseph Kabila.

A population-based study conducted in conflict-affected areas in eastern DRC in 2010 (North and South Kivu Provinces and Ituri district) documented nearly two decades of violations committed by all parties to the conflict against civilians. Many of the reported abuses, including widespread sexual violence, likely constitute international crimes that fall under the remit of the International Criminal Court (ICC).

Sexual violence as a "tactic of conflict" has gained attention in a number of key international fora and initiatives, with a particular focus on ending impunity for these crimes. In 2012, the UK announced a major initiative aimed at prevention of sexual violence in conflict. One particular focus of the initiative aims to improve investigations of sexual offenses in order to promote prosecutions. This topic of focus for Britain's presidency includes deployment of expert teams for investigation and evidence collection, as well as plans for new international protocols on the investigation and documentation of sexual violence in conflict.

The UN Office of the Special Representative of the Secretary General on Sexual Violence in Conflict (SRSG), now on its second mandate holder, has included a focus on ending impunity in its agenda as of its inception in 2010.

The UN Security Council (UNSC) has issued a number of resolutions specifically focused on sexual violence as part of their Women Peace and Security agenda, most recently establishing a monitoring and reporting mechanism to enable the naming and shaming of state and non-state armed forces found to be using sexual violence as a tactic of conflict. Lists of forces that use sexual violence as a tactic of armed conflict are issued in annual reports by the SRSG.

The ICC is also considered a critical forum for ending impunity for sexual violence. Most of the cases before the ICC include sexual violence crimes in the indictment (crimes against humanity and/or war crimes). These cases relate to violence in Uganda, DRC, Darfur, Central African Republic (CAR), Kenya and Cote d'Ivoire. The jurisprudence of the court is still to be established, however, as the only two decisions handed down thus far are in the cases of The Prosecutor v. Germain Katanga and The Prosecutor v. Thomas Lubanga Dyilo. The ICC has also not yet proven itself to be particularly well suited for trying cases of sexual violence.

The NGO Women's Initiatives for Gender Justice has written extensively about crimes of sexual violence and the ICC, and has issued annual "report cards" for the Court's handling of these crimes since 2005. In particular, they have documented [PDF] the difference between how gender-based crimes are treated by the ICC, in comparison to other crimes. When charges for gender-based crimes are actually brought, they are often dropped or re-characterized as other crimes. This occurs most often with charges that seek an arrest or a summons to appear.

One major challenge concerns the lack of clarity as to what constitutes linkage evidence proving a connection between rapes committed by members of various combatant groups and the high level individuals who are the target of ICC indictments.

Over the last six years, evidence for cases involving crimes against humanity relating to sexual violence brought before the ICC has been approached in new ways. The ICC is considering moving away from testimony evidence, and instead looking at other sources of data to clarify relevant details about these crimes. Working groups, expert panels and conferences have slowly defined what types of data may be useful for prosecutors and judges in these cases, and other international criminal tribunals have utilized this data successfully.

However, given the lack of clarity as to what the ICC judges will consider as linkage evidence for sexual violence, the development of investigation protocol aimed at international prosecutions may be premature. There are costs and risks for survivors associated with traditional evidence collection, especially in settings where access to services is limited. More support in the national systems is needed, as the ICC neither has the jurisdiction or capacity to handle all of these cases. UNSC Resolution 1820 [PDF] explicitly recognizes the need for various parties, such as UN member states and financial institutions, to assist in the development and strengthening of national judicial systems. This support will enable nations to provide sustainable assistance to victims of sexual violence in armed conflict and post-conflict situations, and must be done while simultaneously supporting international criminal processes.

Chen Reis is the Director of the Humanitarian Assistance Program for the University of Denver.

Lynn Lawry is the Director of the Initiative in Global Women's Health for Brigham and Women's Hospital and Harvard Medical School.

Suggested citation: Chen Reis and Lynn Lawry, Challenges for Justice in Democratic Republic of Congo for Human Rights Violations, JURIST - Hotline, Mar. 7, 2013, http://jurist.org/hotline/2013/03/reis-lawry-icc-sexual-violence.php

This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org
]]> Georgia's Cruel and Unusual Standard for Proving Mental Retardation tag:jurist.org,2013:/hotline//4.48011 2013-03-05T14:30:00Z 2013-03-18T21:57:43Z Terrica Ganzy, Southern Center for Human Rights Stephanie Kogut JURIST Guest Columnist Terrica Ganzy, Staff Attorney for the Southern Center for Human Rights, argues that Georgia's "beyond a reasonable doubt standard" for finding mental retardation in capital offenses is a nearly insurmountable standard...

The US Supreme Court has held that the Eighth Amendment's prohibition against cruel and unusual punishment bans the execution of persons who suffer from mental retardation in Atkins v. Virginia. Yet, Warren Lee Hill, a Georgia death row inmate who has twice proven to Georgia courts by a preponderance of the evidence that he suffers from mental retardation, was scheduled to be executed on Tuesday, February 19, 2013. However, the execution was stayed pending further review.

Georgia, unlike any other state in the nation, requires proof of mental retardation beyond a reasonable doubt. Beyond a reasonable doubt is an impossible standard to meet in the context of mental retardation. Mental retardation is generally defined as: (1) significant subaverage general intellectual functioning and (2) significant adaptive behavior deficits that (3) manifested before age 18. All three prongs must be met.

A problem arises when one considers that the measurement of IQ is subject to challenge based on "practice effect" (how many times the test has been administered to a particular person), "Flynn effect" (the age of the particular test being administered), the test's "standard error of measurement" (estimate of error used to interpret a test score), the effort put forth by the person taking the test and the qualifications of the person administering the test. All of these factors can obviously lead to doubt in the mind of a trier of fact.

Adaptive behavior assessment, perhaps even more so than IQ determination, also leaves plenty of room for doubt in the mind of an average trier of fact, because communication, social, and practical functioning ability, particularly in the context of mild mental retardation, does not neatly fit into black and white, either/or analysis. Persons who suffer from mild mental retardation (typically IQ scores of 55-70 according to the Diagnostic and Statistical Manual of Mental Disorders) are often capable of some basic, real world functioning. The concept that a person can suffer from mental retardation and still lead a seemingly "normal" life confounds the average lay person, because it cuts against what people think they know about persons who suffer from mental retardation. Many people do not know that there are levels of severity of mental retardation and often have stereotypical views of what persons who suffer from mental retardation can (or cannot) do and even how they look.

A 2008 study of juror decision-making in a capital case by Heather Pruss, Maria Sandys and Adam Trahan involving a defendant who claimed to suffer from mental retardation found that jurors often believe that persons who suffer from mental retardation are easy to detect because they look like they have an intellectual disability and exhibit child-like behavior. Jurors think: "Hill can drive a car, so he must not be mentally retarded," "Hill served in the military, so he must not be mentally retarded," "Hill committed murder, so he must not be mentally retarded," and so on. These stereotypical attitudes are deadly in Georgia, because inherent in them is doubt that a particular defendant suffers from mental retardation, and this doubt is based on a lack of understanding of the disability.

Assuming that a person who suffers from mental retardation would perform every task poorly is dangerous because persons who suffer from mental retardation may have strengths as well as weaknesses. For example, in clinical assessment of adaptive behavior deficits, the standard measurement is whether a person suffers from significant deficits in one of three categories of functioning: conceptual (e.g., language, reading, writing, money concepts, self-direction), social (e.g., interpersonal relationships, responsibility, self-esteem, gullibility, naiveté, following rules, obeying laws, avoiding victimization) and practical (e.g., cooking, cleaning, personal grooming, occupational skills). For example, a person could have deficits in conceptual functioning and exhibit few or no deficits in practical skills and social skills — and be clinically diagnosed as suffering from mental retardation.

Hill fits into this category of persons who suffer from mental retardation but have strengths that would lead the average person to doubt the existence of such disability. Hill has been determined to have an IQ of 70 and deficits in adaptive functioning that manifested before he turned 18 years old. His IQ of 70 is undisputed. School records, standardized test scores and testimony from his teachers indicate that Hill exhibited mental retardation throughout school and was socially promoted because there was no special education program at his school. Hill, however, served honorably in the United States Navy, drove a car, and, unfortunately, committed murder. Because of the things Hill was capable of doing, he was unable to prove his mental retardation by Georgia's "beyond a reasonable doubt" standard of proof. Certainly, evidence presented of his sub-average intellectual functioning and adaptive behavior deficits was repeatedly sufficient to prove his mental retardation by a preponderance of evidence. His abilities, however, created doubt not only in the minds of the triers of fact but also in the minds of testifying experts. That doubt is steadily marching Hill to the execution chamber.

However, in a dramatic turn of events in this case, the three experts who testified in 2000 on behalf of the state that Hill did not suffer from mental retardation — but, rather, borderline intellectual functioning — have now changed their opinions [PDF]. After re-evaluating the evidence in Hill's case, Dr. Thomas Sachy, Dr. Donald Harris and Dr. James Gary Carter now conclude that Hill suffers from mild mental retardation. They now conclude that Hill suffers from mental retardation specifically because they now better understand that strengths can co-occur with weaknesses in persons who suffer from mild mental retardation. In his recent affidavit, Harris attests:

We in the clinical community now better understand that persons with mild mental retardation are capable of such things as holding a job, working under close supervision, buying and driving a car, and so forth. It is precisely because significant deficits in cognition, judgment and impulse control can be masked by superficial functionality in cases of mild mental retardation that such persons may sometimes not be identified in court proceedings as being intellectually disabled. I believe this has happened in Hill's case.
Harris cites Hill's military service as an example of one of the reasons why he misdiagnosed Hill. Harris recalls initially viewing Hill's military service as evidence of high functioning that would be inconsistent with mental retardation. After recently reviewing Hill's record more fully — and in light of what he now knows about mental retardation — he now notes that the structured environment of the military allowed Hill to perform well at lower classifications. Although Hill was recommended for promotion within the military, he was never actually promoted because Hill's performance plummeted as the tasks became more challenging.

Hill's case is a prime example of why Georgia's beyond a reasonable doubt standard is cruel and unusual and must be eliminated. Three experts in the field of mental retardation diagnosis admit to giving too much weight to Hill's perceived abilities in determining that he did not meet the criteria for mental retardation. Based on the doubt of these three experts, who now admit that their doubts were based on a lack of sufficient time to review records in Hill's case and lack of understanding how certain of Hill's abilities were not inconsistent with a diagnosis of mental retardation, a man who clearly meets the definition of mental retardation is scheduled to be executed. In light of this new evidence, there can be no reasonable doubt that Hill is mentally retarded.

If Georgia decision-makers cannot make that finding, however, the Supreme Court of Georgia should uphold the intent of its 2002 decision in Atkins and strike down Georgia's requirement of proof of mental retardation beyond a reasonable doubt. Failing to do so will lead to the execution of Hill and other capital defendants who, in the words of former Georgia Supreme Court Justice Leah Ward Sears dissenting in the 2003 decision of Head v. Hill, are "in all probability mentally retarded ... more than likely mentally retarded ... and almost certainly mentally retarded."

Terrica Ganzy is a Staff Attorney with the Law Firm of the Southern Center for Human Rights and a member of the Board of Directors of Georgians for Alternatives to the Death Penalty (GFADP). She earned her B.A. from Tougaloo University in English and Humanities and graduated from the University of Virgina School of Law. She also holds an LL.M. from Temple University's Beasley School of Law.

Suggested citation: Terrica Ganzy, Georgia's Cruel and Unusual "Beyond a Reasonable Doubt Standard" for Proving Mental Retardation, JURIST - Hotline, Mar. 4, 2013. http://jurist.org/hotline/2013/02/terrica-ganzy-warren-hill.php.

The American Association of Intellectual and Developmental Disabilities (AAIDD) and other organizations now use the term "intellectual disabilities" in place of "mental retardation." The language of the Georgia statute and related case law discussed in this article use the term "mental retardation," as does the US Supreme Court decision of Atkins v. Virginia. For the sole purpose of avoiding confusion, the author has made a conscious decision to use the term "mental retardation" in this article.

This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org
]]> Kenya's Elections: Africa's Bellwether at a Crossroads tag:jurist.org,2013:/hotline//4.48118 2013-03-03T21:15:00Z 2013-04-04T18:13:16Z M. Patrick Yingling, Law Offices of M. Patrick Yingling John Paul Regan JURIST Guest Columnist M. Patrick Yingling, formerly of Kenya's Moi University School of Law, says that the fear of corruption and violence raises the stakes in Kenya's upcoming election higher than ever...

On March 4, 2013, Kenyans will go to the polls to elect the country's fourth president. The election is widely seen as Kenya's most important to date. The importance of the election, however, is not necessarily tied to which candidate wins the most votes. Rather, the importance of the election is tied to whether voting will lead to violence, and whether democracy will lead to anarchy.

This fear of violence is really the fear that history will repeat itself. The violence following the 2007 election was devastating for Africa's bellwether. In the lead-up to the presidential election, the opposition candidate, Raila Odinga, seemed destined to defeat the incumbent, Mwai Kibaki. As the regional constituency votes were tallied, this expectation appeared to become a reality. However, when the constituency votes were finally added to the national total, Kibaki had won by a narrow margin. In one district, the vote for the incumbent was first announced as 50,145 before being entered as 75,261 in the final tally. In another district, turnout was first shown at 115 percent, but was later changed to 85 percent.

Obvious electoral impropriety triggered the violence. Targeted ethnic violence escalated initially against the Kikuyu people, the community of which Kibaki is a member. The violence peaked with the killing of over 30 people in a church near the Rift Valley town of Eldoret on New Year's Day 2008. Some Kikuyu coalitions also engaged in retaliatory attacks against individuals supportive of Odinga — largely members of the Luo and Kalenjin communities — in the towns of Naivasha and Nakuru. After more than 1,000 deaths, peace was finally brokered in an agreement negotiated by former UN Secretary-General Kofi Annan. Odinga became Kenya's first prime minister, allowing Kibaki to stay in power as president.

As a result of the post-election violence, four Kenyans will stand trial before the International Criminal Court (ICC) in The Hague on charges of crimes against humanity. Two of those charged, Uhuru Kenyatta and William Ruto, are former political rivals who recently joined forces to run on the same ticket for president and vice-president, respectively. The latest polling data shows Kenyatta and Ruto in a close race with Odinga and his running-mate, Kalonzo Musyoka. Kibaki is barred from running for a third term under the Constitution of Kenya.

The post-election violence in 2007 and 2008 was fueled by tribalism, but it was also closely tied to government corruption. Since independence in 1963, Kenya has fought (and lost) many battles with corruption. Government officials have been able to divert public funds for private purposes with impunity, distributing resources discriminately based on tribal affiliation. Due to a lack of checks on government power, the election of 2007 was seen as a matter of life and death. The potential beneficiaries of power were driven to extremes.

In the aftermath of the post-election violence, Kenyans made real efforts to combat corruption. These efforts culminated in 2010 with the adoption of a new constitution. The revised Constitution of Kenya provides for greater checks on power, especially between the branches of government. Checks and balances are necessary to achieve reduced levels of corruption. However, they are not always sufficient. The effects of new restraints are not always immediate. According to Transparency International's Corruption Perceptions Index of 2012, Kenya is still perceived to be a highly corrupt country, occupying a rank of 139 out of 176, only a slight improvement from its rank of 154 in 2010.

Thus, Kenyans still have reason to believe those in government will abuse power. This means that the stakes for this election are high, as is the likelihood of violence. However, a repeat of 2007 is not a foregone conclusion. Although the potential for violence is real, peace may still prevail. In 2007, violence was triggered by the perception of electoral misconduct by the incumbent administration. In 2013, however, the incumbent is barred from seeking re-election. The president has also declined to endorse a candidate. Therefore, there is less of an incentive for electoral misconduct. The trigger for violence could remain un-pulled.

Another factor to take into account is that the post-election violence of 2007 and 2008 was a source of embarrassment for many Kenyans. The violence erased the country's status as a stable democracy in a conflict-prone neighborhood. The awareness of the set-back was obvious during country's first ever presidential debate last week, as the candidates spent a significant amount of time condemning tribalism, corruption, and violence.

Let us hope that the candidates mean what they say. The next few days will tell all.

M. Patrick Yingling was a Visiting Lecturer at Moi University School of Law in Eldoret, Kenya in 2011. He is a 2011 graduate of the University of Pittsburgh School of Law.

Suggested citation: M. Patrick Yingling, Kenya's Elections: Africa's Bellwether at a Crossroads, JURIST - Hotline, Mar. 3, 2013, http://jurist.org/hotline/2013/03/m-patrick-yingling-kenya-elections.php

This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

]]> Against an Intensity Test for Interstate Conflict tag:jurist.org,2013:/hotline//4.47796 2013-02-27T19:30:00Z 2013-02-27T19:32:53Z Charles Kels, Department of Homeland Security Michael Muha JURIST Guest Columnist Charles Kels of the US Air Force Reserve and the Department of Homeland Security argues that legal experts should think twice before diluting the clarity of international armed conflicts...

The law of armed conflict (LOAC) applies when the threshold of armed conflict is met. Since the 1949 Geneva Conventions, this triggering mechanism has been relatively straightforward in the case of discord among states, but considerably murkier when it comes to violence that involves non-state entities.

International v. Non-International Armed Conflicts

Common Article 2 of the Geneva Conventions establishes their application to both "cases of declared war or of any other armed conflict" between state parties, regardless of formal recognition by the governments involved. The Commentaries to the Conventions make clear that the general nature of this language was intended to deprive belligerent nations "of the pretexts they might in theory invoke for evasion of their obligations." Indeed, the omnibus term "armed conflict" was deliberately inserted to prevent the endless legal wrangling over the meaning of "war" from excusing noncompliance with the treaties.

Common Article 3 also employs the phrase "armed conflict," but does so in the negative, as pertaining to "armed conflict not of an international character." Jean Pictet noted [PDF] that the drafters "deliberately refrained from defining" such non-international armed conflicts (NIACs), at least in part due to a lack of consensus. Common Article 3 was revolutionary in making inroads into state sovereignty, necessitating sensitivity to the historical reluctance of governments "to impose international obligations on states in connection with their internal affairs." In order to allay fears that Geneva law would thenceforth regulate "any form of anarchy, rebellion, or even plain banditry," the Commentaries offered some "convenient criteria" for recognizing a NIAC, while also cautioning that they were "in no way obligatory."

Contemporary observers seemed unconcerned about any resulting ambiguity, given that the "mini-Convention" of Common Article 3 merely encapsulates the basic "rules of humanity which are recognized as essential by civilized nations." In this view, there was no incentive for responsible parties not to comply with Common Article 3, since its precepts actually derived their moral and legal force from standards of conduct long predating the Conventions.

However, this sense of confidence overlooked two subsequent developments. First, although the triggering provisions of the Geneva Conventions technically applied to those specific treaties alone, they have grown over the decades to define the threshold for the application of LOAC [PDF] more generally. If anything, this trend has been exacerbated as the customary international law of NIACs has come to approximate the rules governing interstate conflicts (IACs). Second, pinning down a definition for NIACs — although studiously avoided during the Conventions' negotiations — later became a matter of justiciability before international courts.

The Jurisprudence of NIACs

Rejecting a jurisdictional challenge in its inaugural Tadic case, the appeals chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) famously determined that "an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state." This decision simultaneously reiterated the bright line rule for recognizing an IAC and set criteria for classifying a NIAC.

Building on this definition, the ICTY trial chamber [PDF] developed a two-part test for NIACs, based upon "the intensity of the conflict and the organization of the parties to the conflict." The Tadic formulation was then codified in the Rome Statute establishing the jurisdiction of the International Criminal Court (ICC). The purpose of these definitional exercises was to delineate the parameters under which international judicial bodies could impose criminal liability on bad actors, but they have taken on a life of their own as the definitive statements on what "armed conflict" means. In so doing, the jurisprudence on NIACs has arguably frustrated the Geneva commentators' premise that Common Article 3 "should be applied as widely as possible."

NIAC Goes Global

The debate over NIACs took on heightened importance after 2001, when the US claimed to be engaged in a "global war on terrorism," and then later in an "armed conflict with al Qaeda, the Taliban, and associated forces." Whereas the traditional challenge to international law has been states' steadfast resistance to perceived erosion of their sovereignty — as manifested by the refusal of besieged governments to acknowledge the existence of a civil war — the world's lone superpower today invokes a transnational NIAC to justify an extensive architecture of targeted killings and indefinite detention.

Well-meaning scholars and advocates have responded to this claim by emphasizing the dual Tadic elements and insisting [PDF] that outside of "hot" conflict zones, the hostilities with al Qaeda and its associates do not rise to the level of armed conflict. For example, a committee of the International Law Association (ILA), comprised of a veritable all-star cast of legal experts from across the globe, produced a report on the "meaning of armed conflict" intended specifically to counter the US narrative of a "global war on terror." The upshot of this view is that the applicable legal regime governing US counter-terrorism activities is not LOAC but human rights law (HRL) — i.e., the law enforcement paradigm.

An Intensity Test for IACs?

In explicating the Tadic criteria of intensity and organization, the ILA report downplayed the distinction between IACs and NIACs, citing state practice that ostensibly exhibited an intensity threshold for armed conflict regardless of type. In the same way that NIACs are distinguished [PDF] "from less serious forms of violence, such as internal disturbances and tensions, riots, or acts of banditry," some scholars now seek to exclude "incidents, border clashes, and skirmishes" from the purview of IACs.

This approach contradicts the hard-and-fast rule advocated by Pictet that "any difference arising between two states and leading to the intervention of armed forces" constitutes an IAC, regardless of "how long the conflict lasts, or how much slaughter takes place." Indeed, it runs counter to a close reading of the Tadic appellate decision, which used the word "protracted" only in reference to internal conflicts.

Applying a NIAC-like intensity evaluation to IACs — beyond the "very low" [PDF] common sense bar that the interstate violence at issue be a function of hostility rather than simple mistake — deliberately erodes the "categorical" test [PDF] that now exists. By exchanging such clarity for the muddle of NIAC classification, the current trend risks encouraging precisely what the Geneva commentators hoped to avoid by divorcing the treaties' application from state pronouncements. The 1949 negotiators knew from whence they spoke: just a decade earlier, imperial Japan had termed its invasion of China a mere "incident" so as to eschew international law.

The movement to restrict the scope of IACs is symptomatic of an increasing discomfort among some international law circles with the legal framework of war. Such commentators tend to focus on the belligerent privileges afforded by LOAC to "kill without warning" and "detain without trial," rather than its concomitant responsibilities to mitigate suffering [PDF] to the extent practicable under circumstances unfathomable in peacetime. They understandably prefer the more humane regime afforded by HRL, whereby lethality is only condoned "when strictly unavoidable in order to protect life."

What this approach overlooks is the essential nature of LOAC, which was crafted not to legitimize violence but to regulate it once it broke out. It is undoubtedly a positive sign for humanity if the world is progressively more wary of the types of force authorized in war, but international law also cannot wish such violence away by neglecting to regulate it in practical terms. Doing so would be the equivalent of seeing an assailant coming towards you and putting your head down to disregard the impending disaster.

Hindering the reach of LOAC in the quintessential case of interstate strife turns Geneva law on its head and courts the lawlessness [PDF] inherent in a vacuum where the rules for everyday life are neither practicable nor enforceable. The perfect should not be permitted to act as the enemy of the good.

Major Charles Kels is an attorney for the Department of Homeland Security and a judge advocate in the Air Force Reserve. Opinions expressed in this commentary are those of the author alone and do not necessarily reflect those of the Departments of Homeland Security, Air Force or Defense.

Suggested citation: Charles Kels, Against an Intensity Test for Interstate Conflict, JURIST - Hotline, Feb. 27, 2013, http://jurist.org/hotline/2013/02/charles-kels-niac-definition.php


This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him/her at professionalcommentary@jurist.org

]]> A Bridge to Nowhere: Creating Natural Gas-Based Infrastructure tag:jurist.org,2013:/hotline//4.47707 2013-02-20T22:45:00Z 2013-02-20T22:47:04Z Joseph Minott and Jay Duffy, Clean Air Council John Paul Regan JURIST Guest Columnists Joseph Otis Minott and Jay Duffy of the Clean Air Council argue that rather than being a bridge to a renewable energy future, natural gas may not deliver promised climate benefits...


Many have advocated the transition from a coal-based to a natural gas-based energy infrastructure as a crucial advancement in avoiding the catastrophic effects of climate change. This rapid transfer from one fossil fuel source to another, spurred by the explosion of horizontal hydraulic fracturing, or "fracking," fails to account for the life-cycle and vast externalities of a natural gas energy system.

When most people think of fracking, they think about wells and tainted water. However, natural gas infrastructure is a complicated and often vast network containing pipelines that move natural gas from wells to compressor stations that pressurize the gas and processing plants that separate the gas from water and other components. Greenhouse gases and other air pollutants are emitted during every step, including extraction, transport and processing. This article focuses on examining the attempts of the US Environmental Protection Agency (EPA) to regulate greenhouse gases produced during the process of hydraulic fracturing.

Greenhouse gas emissions from natural gas operations result from vented emissions, fugitive emissions and combustion emissions that are released during the extraction process. Natural gas is primarily composed of methane. Therefore, methane is released throughout natural gas systems during normal venting as well as through fugitive — or unintentional — emissions. Fugitive emissions are particularly difficult to quantify because they are invisible, odorless and inaudible. Methane emissions are problematic from a climate change perspective because their global warming potential is 72 times that of carbon dioxide over a 20-year period. Finally, incomplete combustion of fuel within engines associated with natural gas facilities results in carbon dioxide and methane emissions.

Recent studies indicate that, on average, between 1 percent and 3.3 percent of the natural gas extracted by fracking is emitted into the air. One study found that if these rates rise above 2.6 percent, the climate impact of natural gas would be greater than coal. Another recent study found global warming will actually increase as we approach 2050 and the country is transitioning towards 50 percent natural gas power generation. Yet another study found that the transition to natural gas power generation would require 100 years or more to achieve a 25 percent reduction in global warming.

Despite the results of these studies, there has been little progress made to curb or regulate the emissions produced by the natural gas extraction process. However, the EPA has many regulatory tools which, if properly implemented, could lead to reductions in greenhouse gas emissions from fracking and other natural gas operations. These tools include the Greenhouse Gas Tailoring Rule [PDF], the Greenhouse Gas Reporting Rule and New Source Performance Standards.

In May 2010, the EPA finalized the Greenhouse Gas Tailoring Rule. Previously, a source of air pollution was considered a "major source" if it generated 100 tons per year (TPY) or more of a criteria pollutant. Due to the prevalence of greenhouse gases, the EPA "tailored" this rule. Beginning in January 2011, only those sources already considered major sources, with subsequent modifications to their facility increasing the emission of CO2 equivalent (CO2e) by 75,000 TPY or more, would be required to adopt best available control technology (BACT) for greenhouse gases. Beginning in July 2011, a facility could trigger major source status just by virtue of its greenhouse gas emissions. Any facility that emits 100,000 TPY or more of CO2e is required to obtain a Title V permit. A new facility emitting 100,000 TPY of CO2e or more must adopt BACT for greenhouse gases. An existing facility, even if it was not considered a major source, which undertakes a modification that increases greenhouse gas emissions by 75,000 TPY of CO2e and collectively emits over 100,000 TPY of CO2e &3151; including the modification — would also have to adopt BACT for greenhouse gases.

While most natural gas facilities in Pennsylvania, for example, have historically been considered minor sources of air pollution, the Greenhouse Gas Tailoring Rule has led to many qualifying for "major source status" due to their CO2e emissions. These early BACT determinations are critical in setting a strong precedent for tight greenhouse gas controls. The Natural Gas STAR Program, a voluntary EPA partnership which encourages natural gas companies to adopt technologies that improve efficiency and reduce methane emissions, provides a baseline for greenhouse gas BACT determinations. Initial greenhouse gas BACT determinations in Pennsylvania have called for proper operation and maintenance of natural gas-fired turbines for maximization of thermal efficiency, capture of dehydrator emissions and leak detection and repair programs.

In accordance with 40 CFR 98 subpart W, owners and operators of natural gas facilities emitting 25,000 tpy CO2e or more must report emissions to the EPA. Facilities began monitoring GHG emissions on January 1, 2011, and the first report was due September 28, 2012. Beginning in 2013, reports must be submitted to the EPA by March 31 each year.

In an effort to combat the recent controversy regarding the climate impacts of natural gas operations, the industry is pushing the EPA to include the data submitted in September 2012 in the annual greenhouse gas inventory report to the UN. While the EPA wants to have the most up-to-date information, the data must undergo review and quality assurance before its release.

In response to a lawsuit over missing several deadlines, the EPA issued oil and gas air pollution standards [PDF] on April 17, 2012. The standards, however, failed to set standards for methane. Environmental groups and a coalition of eastern states submitted notices of intent to sue the EPA for its failure to set new source performance standards for new sources of methane under § 111 of the Clean Air Act (CAA). Section 111(b)(1)(B) requires the EPA to establish standards of performance governing the emission of air pollutants from new sources in the oil and gas sector, and if appropriate, revise those standards at least every eight years. The EPA has a mandatory duty to: (1) make a determination whether standards covering methane emissions are "appropriate" and (2) if so, to promulgate standards.

In the most recently released oil and gas air pollution standards the EPA stated that it "intends to continue to evaluate the appropriateness of regulating methane with an eye toward taking additional steps if appropriate." Making the appropriateness determination is not discretionary, and it is expected that the environmental groups and states will file a suit to force a determination shortly.

While natural gas has been billed as a bridge to a renewable energy future, it may just be a delay with minimal, if any, climate benefits. Although US President Barack Obama re-committed himself to climate legislation during his second inaugural address, it is crucial that the EPA use all of the tools at its disposal to ensure that natural gas operations do not continue the climate change legacy of coal.

Joseph Minott is the executive director of the Clean Air Council. As an environmental attorney, Minott has litigated cases under the Clean Air Act. He is a recognized expert on urban air pollution issues, air pollution impacts on low income neighborhoods, and alternative energy issues. Minott leads the Council's work on such urban air pollution as diesel pollution, pollution from ports and goods movement and has served on numerous federal, state and local regulatory and policy making boards.

Jay Duffy is a staff attorney at the Clean Air Council. He works primarily on the air issues associated with Marcellus Shale as well as coal-fired power plant litigation. Duffy graduated from Villanova Law in 2010 where he was a member of the Delaware Valley Inn of Court, the Villanova Environmental Law Journal and held internships at EPA Region 3 and PennFuture.

Suggested citation: Joseph Minott and Jay Duffy, A Bridge to Nowhere: Creating Natural Gas-Based Infrastructure, JURIST - Hotline, Feb. 20, 2013, http://jurist.org/hotline/2013/02/natural-gas-bridge-fuel-to-nowhere.php

This article was prepared for publication by John Paul Regan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org
]]> Agency Oversight of Hydraulic Fracturing: Who's the Better Regulator? tag:jurist.org,2013:/hotline//4.47752 2013-02-18T19:15:00Z 2013-02-20T16:37:12Z Aaron Mintzes, EARTHWORKS Theresa Donovan JURIST Guest Columnist Aaron Mintzes of EARTHWORKS examines the ways the federal government actually regulates fracking and discusses two case studies in states where industry advocates turn federalism on its head...

The 113th Congress, especially the US House of Representatives, will use their oversight responsibilities this term to conduct hearings on many issues related to hydraulic fracturing or "fracking." Hydraulic fracturing involves the underground, high-pressure injection of millions of gallons of water, silicates and chemicals into ancient cracks in shale formations deep below the ground to release natural gas. The main question considered by these legislative committees boils down to who's the best regulator: cities, states or the federal government?

Federal Regulation

In the corridors and committee rooms of Washington, DC, the oil and gas industry argues for state control instead of federal regulation. Two of the major legislative vehicles supporting this policy in the 112th Congress were the FRESH Act [PDF] and the Empower States Act of 2012. To drilling proponents, the states (especially those with histories of oil and gas development) have grand traditions regulating drilling within their borders. Regional geological differences require a localized approach and a federal "one size fits all" policy will ill-serve job creation and efficient energy development. Local regulators have familiarity not only with the area geology, but also with institutional memory needed to effectively handle inspections, enforcement and violations.

To put it mildly, the ability of state regulators to enforce their own rules has generated considerable dispute. Recent studies suggest that state agencies by and large simply cannot handle the stunning increase in the number of wells in their jurisdictions. Even in states like Colorado and Pennsylvania — where drilling has occurred for a long time — the recent explosion in the number of gas wells near homes, schools and other populated areas has led some to question whether the limited resources appropriated to state regulators can keep up with the new demands of the shale gas boom.

Thus, just as a practical matter, it appears that the states would greatly benefit simply from some extra help. The federal government has much to offer states in terms of staff, resources, and expertise. For the most part, the federal government has primarily conducted studies and supplied research and development dollars. The current technology used in high-volume hydraulic fracturing owes much of its origin to studies over the last 30 years funded by federal tax dollars and led by the US Department of Energy. Other federal agencies, including the Environmental Protection Agency (EPA), continue to study hydraulic fracturing.

From a regulatory perspective, it's important to understand that the federal government has virtually no authority over hydraulic fracturing. The reason is that natural gas drilling enjoys broad exemptions from seven of our nation's bedrock environmental laws. For example, the Safe Drinking Water Act (SDWA) has, at its core, a program designed to control fluids injected underground — an essential process of hydraulic fracturing. However, the Energy Policy Act of 2005 [PDF] specifically exempted it from the SDWA's Underground Injection Control program.

Another critical exemption involves the aggregation of emission sources under the Clean Air Act (CAA). The CAA allows the EPA to set National Emissions Standards for Hazardous Air Pollutants (NESHAP) from major sources. The law can also regulate individual, small sources in the same manner as major sources as long as the same operator controls similar sources positioned closely together. Just not oil and gas wells. In response to a lawsuit forcing action, the EPA in 2012 did issue new air rules for gas wells under Section 111 — the New Source Performance Standard — to capture volatile organic compounds and other airborne toxic pollutants.

Besides last year's air rule, the only other important arena where the federal government will do some regulating is where drilling occurs on federal lands. The Bureau of Land Management (BLM) appears ready to issue rules analogous to those in some states concerning disclosure, waste disposal, and well integrity. At the time of this writing, the degree to which the BLM proposals will set a better or worse standard than their state counterparts remains an open question.

Act 13

The industry's argument that the more local the regulator, the better the regulation, breaks down once disputes arise between states and municipalities. Rather than taking the position that the locals know best, the oil and gas industry instead argues that an in-state one size fits all approach provides regulatory certainty and best promotes efficient resource development. The best two examples of this have occurred recently in Pennsylvania and Colorado.

In the Keystone State, Harrisburg legislators passed a series of sweeping reforms to the state's oil and gas law known collectively as Act 13. The effect of this legislation was to seize powers traditionally reserved for municipalities and concentrate them in the state government. Perhaps the most controversial aspect of Act 13 included provisions preempting the power of municipalities to issue zoning rules for oil and gas facilities. For instance, 58 Pa.C.S. § 3303 reads:
Notwithstanding any other law to the contrary, environmental acts are of Statewide concern, and to the extent they regulate oil and gas operations, occupy the entire field of regulation, to the exclusion of all local ordinances. The Commonwealth by this section, preempts and supersedes the local regulation of oil and gas operations regulated by the environmental acts, as provided in this chapter.
On March 29, 2012, seven municipalities filed a complaint against the Commonwealth of Pennsylvania seeking a declaratory judgment and injunctive relief. The suit challenges the constitutionality of Act 13 on grounds that the state's power grab of local zoning control violates, among other things, the 14th amendment's guarantee of substantive due process. The Commonwealth countered that municipalities' powers to zone are delegated to them by state statute — the Municipal Planning Code (MPC), P.L. 805, as amended, 53 P.S. §§ 10101-11202. As a result, since the state grants towns the power to zone, it also has the right to limit it.

President Judge Dan Pellegrini's 4-3 majority decision [PDF] sides with the municipalities. Quoting from the US Supreme Court's zoning discussion in City of Edmonds v. Oxford House, Inc. and Village OF Euclid et al. v. Amber Realty Company, the Commonwealth Court of Pennsylvania reminds us that the purpose of zoning is to avoid the problem of the "pig in the parlor instead of the barnyard." As demonstrated in Village of Belle Terre v. Boraas, land use restrictions help secure "zones where ... the blessings of quiet seclusion and clean air make the area a sanctuary for people." In short, the long history of local control over land use decisions recognizes that while individual parcels pay in terms of reasonable regulation, they also benefit from protections for their quiet use and enjoyment.

The Court's substantive due process analysis involved a careful balancing of the rights of property owners subject to zoning against the state's police powers to protect the public interest. Here, the public interest seeking protection is the promotion of oil and gas development. The Court's decision, however, distinguishes this interest from the broader scope of interests protected by zoning requirements. The process the MPC prescribes for zoning requires municipalities to adopt comprehensive plans for land use.

The Court concludes that Act 13 (specifically, 58 Pa.C.S. § 3304) requires municipalities to violate their own comprehensive plans and allow oil and gas drilling in residential neighborhoods. And that such a requirement is simply not rationally related to the purposes served by zoning. If the Commonwealth were allowed to force municipalities to ignore their comprehensive plans, the legislature could similarly require the same for any sources of industrial pollution, effectively inviting the "pig in the parlor."

Part of the purpose of zoning is, of course, to protect public health and the environment — to keep industrial activity away from residential neighborhoods where the dangers of pollutants can create a substantial risk of harm. The reason municipalities traditionally have zoning power is that most policymakers accept that local folks simply know best. The litigation over Act 13 continues in the Supreme Court of Pennsylvania, with a decision expected soon.

Longmont

A similar debate surfaced in the Boulder County town of Longmont, Colorado. Just as in Pennsylvania, the oil and gas industry sided with the larger government entity rather than the smaller, local one. Also like Pennsylvania, this question of "who's the better regulator?" has resulted in litigation. The remarkable thing about the Longmont suit is that the challenge implicates not only government action, but also a democratic vote by the people.

In July 2012, the Longmont City Council passed an ordinance that prevents drilling in residential areas, requires a 750-foot setback from homes or other occupied structures and implements some additional groundwater monitoring procedures. The state regulator, the Colorado Oil and Gas Conservation Commission (COGCC), has a 350-foot setback requirement. Later that month, the COGCC sued the city over the setback provision as well as additional items, including a restriction on surface drilling in residential areas and a requirement to disclose any hazardous materials transported on the city's roadways.

On November 6, 2012, nearly 60 percent of Longmont voters approved Ballot Question 300 — amending the Longmont city charter to ban fracking and the storage of fracking waste within city limits. On December 17, 2012, the Colorado Oil and Gas Association — an industry trade association — filed suit against the city of Longmont, contending the ban is illegal because it denies mineral owners the right to develop their property and blocks operations that state laws allow.

Various local elected officials have suggested it will take changes in state laws and regulations for local governments to be able to use their land use authority to ban drilling within their boundaries. In 1992, the Colorado Supreme Court overturned the City of Greeley's ban on drilling. That ban was put in place by a city council decision, though, not by a vote of city residents.

Legal defense of the ban will make two sets of arguments. First, times have changed since 1992. Impacts from drilling have increased and the state's ability to regulate and enforce them has decreased. Second, the Colorado state constitution guarantees the right of citizens to vote on matters of local impact — and that the statutory oil and gas act cannot deny that right. As of this writing, the parties have submitted preliminary change of venue motions and motions to dismiss.

Each level of government must play its part in protecting public health and the environment by regulating the fracking industry. Despite enjoying broad exemptions from crucial federal environmental laws, the federal government has two important roles in this arena. First, it should set a regulatory floor below which no other regulator should fall. Second, the federal government is uniquely well-positioned to tackle environmental problems. Not only does it have a monopoly on resources — both human and monetary — but, also, pollution does not respect geopolitical boundaries.

The states also have a critical role to play in oil and gas regulation, often by state agencies dedicated exclusively to that mission. Local governments also enjoy an understanding of energy resources within their borders. Their zoning powers traditionally come from a policy sentiment that locals know best where industry belongs and where it does not.

The oil and gas industry argues in our nation's capitol that agencies closest to drilling regulate best. They oppose federal preemption of state authority. They also support exemptions to our federal environmental laws. But in state capitols, the industry supports laws that allow states to preempt municipal power. They sue local governments over zoning ordinances and attempt to overturn resolutions passed by a democratic vote of the people.

Either the locals know best, or they don't.

Aaron Mintzes is the Policy Advocate for EARTHWORKS. He has also researched and lobbied on a variety of environmental issues with Clean Water Action and the Maryland League of Conservation Voters.

Suggested citation: Aaron Mintzes, Agency Oversight of Hydraulic Fracturing: Who's the Better Regulator?, JURIST - Hotline, Feb. 18, 2013, http://jurist.org/hotline/2013/02/aaron-mintzes-hydraulic-fracturing.php

This article was prepared for publication by Theresa Donovan, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org
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