Wednesday, February 08, 2012

Stretching the Mandate: ICC Action in the Maldives 12:02 PM ET JURIST Guest Columnist Eric Leonard, the Henkel Family Chair in International Affairs at Shenandoah University, says the ICC should constantly adhere to a policy of prudent advocacy, since interfering in "low-level" situations would cause a multitude of legal, political and financial problems... Recently a group of Maldives lawyers submitted a case to the International Criminal Court (ICC). The case involved the detention of a Maldives judge accused of corruption and political bias in his professional conduct. At issue is the means of meting out justice in the Maldives, with the Maldives lawyers contending that the judge in question was "kidnapped" by the Maldives National Defence Force, an action they believe constitutes a crime against humanity. So what is the ICC to do with this case? How should chief prosecutor Luis Moreno-Ocampo and the Office of the Prosecutor (OTP) proceed? It should be clear to even the most ardent supporter of the ICC that they should proceed with little to no acknowledgement of the case for legal, political and financial reasons. From a legal perspective it is questionable whether the case even falls under ICC jurisdiction. According to the Rome Statute of the International Criminal Court, the ICC has "jurisdiction over persons for the most serious crimes of international concern." These "most serious crimes" include genocide, war crimes, crimes against humanity and beginning in 2017, the crime of aggression. The question is whether the actions in the Maldives case constitute a serious crime of international concern. We can begin by addressing what crime under ICC jurisdiction was allegedly violated. The opposition parties in the Maldives are claiming that this detention is a crime against humanity. According to the Rome Statute, "imprisonment or severe deprivation of individual liberty" does constitute a crime against humanity. The opposition also claims that the government's failure to disclose the judge's location for 48 hours constitutes "enforced disappearance." However, in order for the ICC to consider either action a crime against humanity, it must be "committed as part of a widespread or systematic attack directed against any civilian population." If the detention of this high court judge violates the Maldives Constitution [PDF] it is certainly a crime, but the lack of systematic and/or widespread detentions excludes such an alleged crime from rising to the level of crimes against humanity. As a result, the ICC does not have jurisdiction. Along with this basic jurisdictional issue there is also the question of complementarity. During the stocktaking portion of the Kampala Review Conference it was determined that "positive complementarity" was essential in ending impunity given the limited resources of the Court. The principle of complementarity states that the ICC shall only have jurisdiction when a state is unwilling or unable to prosecute. If a state with jurisdiction over the case is taking appropriate legal steps to resolve the situation the case is inadmissible before the ICC. The notion of positive complementarity stresses the importance of this relationship between the ICC and domestic judicial proceedings and places an increased burden on the member states to resolve their own judicial issues, but always with the specter of the ICC looming over their actions. Therefore, it is important to see how the Maldives government reacts to this criticism. However, at this point in time it is difficult to discern whether the principle of complementarity is or is not applicable in this case. Along with these legal considerations there are also political considerations involved. Although the charges levied against the Maldives government are significant, do they hold the gravity necessary to initiate ICC proceedings? There is no way to quantify the notion of gravity (as stated in the Rome Statute), but Ocampo himself has stated that the purpose of the Court is to end impunity in the most horrific of cases. Given the fact that the ICC has investigated, but not opened, formal proceedings in Afghanistan, Columbia, Georgia, Guinea, Honduras, Korea, Nigeria and Palestine, it seems fair to say that the Maldives case does not display the level of atrocities and/or the lack of governmental action that is needed for ICC intervention. It would be difficult to argue that the scale and scope of the crimes committed in these situations does not far outweigh those of the Maldives. As a result, the ICC accepting this case would be a major political blunder because it would represent a monumental judicial overreach that would result in significant damage to the Court's credibility. Many states in the international community remain wary of the ICC's reach and if the OTP were to open a case concerning the detention of one judge it would show their desire to be overly involved. Some may even claim such action as a violation of state sovereignty — the exact reason why the Rome Statute contains the principle of complementarity. Finally, involvement of the Court in such cases would hinder the financial stability of the ICC. Unfortunately, the Court does not have unlimited resources. Again, as stipulated in the stocktaking exercise of the Kampala Review Conference, member states recognize the Court's limited resources. It is best for the OTP and its member states to concentrate these resources on the cases that entail large-scale atrocities. Any other course of action could prevent the Court from engaging in future investigations and prosecutions. The ICC's best course of action is to steer clear of such low-level situations. Intervening in the Maldives would be opening Pandora's box and stretching the ICC to the breaking point — not only legally, but politically and financially as well. If advocates of the ICC (whether that means member states, NGOs or others) want a truly effective Court, then they must be prudent in their advocacy of cases and accept that the purpose of the Court is to prosecute those crimes that hold sufficient gravity. Currently, the Maldives simply does not fit that criteria. 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, Stretching the Mandate: ICC Action in the Maldives, JURIST - Hotline, Feb. 8, 2012, http://jurist.org/hotline/2012/02/eric-leonard-icc-jurisdiction.php. This article was prepared for publication by Stephen Krug, an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, February 02, 2012

Sex Offender Residency Restrictions Impede Safety Goals 8:02 AM ET JURIST Guest Columnist Jill Levenson, Associate Professor of Psychology at Lynn University, says that sex offender residency restrictions often do little to prevent repeat offenses because are based on stereotypical notions of recidivism among sex offenders... Recently, the US Court of Appeals for the Tenth Circuit ruled that a policy banning registered sex offenders from entering Albuquerque's public libraries is unconstitutional. Over the past decade the availability of online sex offender registries has enabled widespread awareness of sexual offenders living in the community, increasing concerns for the safety of children and leading politicians to pass laws restricting where sex offenders can live, work and even be present. Residence restrictions in 30 states and countless municipalities typically prohibit individuals convicted of sex crimes from residing within 500 to 2500 feet of schools, parks, playgrounds, daycare centers, bus stops and other places where children congregate. Few court challenges have been successful in overturning such restrictions. Research shows that politicians and citizens are overwhelmingly in favor of such laws, which are often based on stated (but empirically unsupported) assumptions that almost all sex offenders reoffend and that they are immune to therapeutic intervention. In fact, recidivism rates of known sex offenders are much lower than commonly believed, and properly designed treatment, though not equally effective for all offenders, can significantly reduce the risk of re-offending. Restrictions also reinforce the myth of "stranger danger," despite research from the Justice Department indicating that over 90 percent of child sexual abuse victims are well known to their perpetrators, who typically cultivate opportunities for molestation through familiar relationships with relatives and acquaintances. Residence restriction laws are relatively new, but some research has questioned whether these laws "work" to prevent recidivism. For instance, sexual recidivists do not appear to live closer to schools or parks than non-recidivists, suggesting that residential proximity to such venues is not a contributing factor to re-offending. Furthermore, sex offenders rarely prey on young children in or near parks, libraries or schools and sexually motivated abductions of children are very rare events. Laws restricting where sex offenders live or work will do little to prevent the most common circumstances in which children are sexually abused, through positions of authority and familiarity. In fact, residential restrictions may create more problems than they solve. Since the vast majority (80-95 percent) of residential properties in densely populated metropolitan areas are within 2500 feet of a school, park, or daycare center, housing options can be diminished to a degree where sex offenders become homeless or transient. This transience undermines the very purpose of sex offender registries (to track and monitor where sex offenders live) and creates other barriers to successful reintegration. Another unintended consequence of such laws is clustering, where sex offenders end up living in disproportionate numbers in the limited areas that are compliant with restrictions. Some jurisdictions have instead opted for "child safety zones" or "loitering zones." Rather than restricting where sex offenders reside, such initiatives prohibit them from hanging around in places (without a legitimate reason or prior permission) where they can easily cultivate relationships with children and engage in grooming tactics. In some cases loitering laws are supplemented with GPS monitoring devices that alert officials when a sex offender enters a forbidden area without a legitimate reason. These types of laws, though also controversial and vulnerable to legal challenges, might be better equipped to manage the daily activities of sex offenders at risk for abusing children than housing laws which dictate primarily where sex offenders sleep. Diminishing access to potential victims is an appropriate component of sex crime prevention, but should be tailored to the offender's risk, offense patterns and victim preferences. Broadly restrictive legislation is unlikely to be effective in preventing sexual assault and interferes with reintegration (housing stability, employment and social support) which may inadvertently increase risk. Treatment should be included as part of any comprehensive strategy for preventing recidivistic sexual violence. Professionals and policymakers alike are encouraged to consider a range of options available for building safer communities and to endorse those that are most likely to achieve their stated goals while minimizing collateral consequences for offenders reentering communities. Jill Levenson is an Associate Professor of Psychology at Lynn University in Boca Raton, Florida and an alumnus of the University of Pittsburgh. She has published over 80 articles investigating the impact and effectiveness of social policies and therapeutic interventions designed to prevent recidivistic sexual violence. Suggested citation: Jill Levenson, Sex Offender Residency Restrictions Impede Safety Goals, JURIST - Hotline, Feb. 1, 2012, http://jurist.org/hotline/2012/02/jill-levenson-sexoffenders-residency.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, February 01, 2012

Rios Montt Prosecution is Important to Victims and Judiciary 12:02 PM ET JURIST Guest Columnist Kelsey Alford-Jones, Director of Guatemala Human Rights Commission, argues that it is important for the Public Prosecutor's Office and president to follow through with the genocide charges against Rios Montt to strengthen Guatemala's judiciary and bring justice to the victims of genocide... On Thursday, January 26, Guatemala's former dictator, Efraín Ríos Montt, became the first head of state in Latin America to be charged with genocide and crimes against humanity. The charges identify Montt as the intellectual author of the crimes committed by armed forces in 1982 and 1983 in Guatemala's Ixil Triangle (San Juan Cotzal, San Gaspar Chajúl and Santa María Nebaj) in the department of El Q'iché: the forced displacement of 29,000 individuals, the deaths of 1,771 individuals in 11 massacres, as well as acts of torture and 1,485 acts of sexual violence against women. Judge Patricia Flores's decision to charge Montt and proceed to a full trial is a historic step in a decade-long quest for justice for the egregious crimes against humanity that were committed in the early 1980s. Montt, who took power in a military coup in March 1982, oversaw a brutal scorched earth policy in Guatemala's indigenous highland regions. His 17 months in power have become widely recognized as the most violent period in all of Guatemala's 36-year conflict. It took over two hours for the government's prosecutor to list the charges against Montt. The legal justification for the case is based on Montt's command responsibility: as leader of the military high command, he "authorized, created, designed and supervised" the military's counterinsurgency strategy, which targeted the civilian population in the indigenous highlands. Montt was in the direct chain of command of all military units with authority over those who carried out the crimes. He was constantly informed about what happened in the field, and he did nothing to avoid the crimes, to prevent future abuses, or to hold the perpetrators accountable. Furthermore, the state policy of violence was carried out against a specific ethnic group, the Ixil Maya, declaring them internal enemies that needed to be "destroyed," which constituted genocide. Evidence for Guatemala's strict chain of command and the participation of top government officials in military activity has been repeatedly demonstrated by declassified Guatemalan and US documents. In Thursday's hearing, the prosecution was able to use as evidence military strategy plans such as Operación Sofía [PDF], Plan Victoria '82 and Plan Firmenza '83, an option made possible only after years of advocacy by national and international organizations to gain access to evidence of the military's strategy and patterns of abuse. The others charged in the genocide case, Montt's Army Chief of Staff Hector Mario Lopez Fuentes and Defense Minister Oscar Humberto Mejia Víctores, were ordered to appear in court last year but their evidentiary hearings were both postponed due to health issues. This process began 13 years ago, when Nobel laureate Rigoberta Menchu Tum first brought charges of genocide, terrorism and torture against eight former political and military officials — including Ríos Montt — to the Spanish National Court, based on Spain's recognition of universal jurisdiction. Victim organizations in Guatemala, such as the Association for Justice and Reconciliation (AJR), with the legal support of the Center for Human Rights Legal Action (CALDH), also brought a case against Montt and his military high command in 2001 in Guatemalan courts. While there was little advancement in the Guatemalan case, a Spanish judge issued international arrest warrants for all eight accused there in 2006. Montt was elected to Congress in 2007, avoiding any possibility of being charged in Guatemala. Organizations continued to build a case against him and pushed for legal action. When his immunity came to an end on January 14, 2012, he was promptly subpoenaed. Strengthening Guatemala's judiciary has been an important focus for institutional reforms that began with the signing of the Peace Accords in 1996. Yet there has been little justice for the vast majority of abuses from the internal conflict, during which 200,000 people were killed, including almost 50,000 cases of forced disappearance, and thousands of documented cases of sexual violence. Even today, 98 percent of crimes are committed with impunity. In 2011, Guatemalan courts did make important advances in the investigation of both the material and intellectual authors of torture, forced disappearance and other crimes against humanity committed during the war. These emblematic cases reveal the deep, vested interests at the highest levels of government to deny responsibility for past crimes. Furthermore, they provide an important barometer for the capacity of Guatemala's judiciary to hold human rights violators accountable. Political pressure continues to impede many of these cases and there have been efforts to pass an amnesty law for crimes committed during the conflict. The Guatemalan Constitutional Court has also repeatedly refused to accept international rulings that, according to the Guatemalan Constitution, are legally binding. Furthermore, doubts have been raised about the current administration's political will to move key cases forward. A recently elected president and former general, Otto Pérez Molina, was a Major during Montt's regime and was in a command position in the Ixil Triangle where the genocide was carried out. While he has not been charged in connection to the crimes committed there, he has been named in a separate case [PDF] as the intellectual author in the torture and forced disappearance of indigenous guerrilla leader Everardo Bámaca. Considering these historic and political barriers, many saw the judge's ruling as an act of bravery and a cause for celebration. It will be important for the Public Prosecutor's Office to follow through with the genocide case and the charges against Montt, and for the president to provide strong support for a transparent and independent judicial process. For communities who were victims of the genocide, this case is an important step in their search for truth, historical memory, and to guarantee that these acts are never repeated. Justice, for many communities, is a first — and necessary — step to begin to heal from the past. Kelsey Alford-Jones is the Director of the Guatemala Human Rights Commission, a non-profit, non-partisan organization that monitors, documents and reports on the human rights situation in Guatemala, advocates for survivors of human rights abuses, and works toward positive systemic change. Prior to her time at GHRC, Kelsey was a History and Language Arts teacher at a bilingual alternative school for Latino students in Portland, Oregon. She also coordinated and developed an Environmental Education Program at the Sarapiquí Conservation Learning Center in Costa Rica. Suggested citation: Kelsey Alford-Jones, Rios Montt Prosecution is Important to Victims and Judiciary, JURIST - Hotline, Feb. 1, 2012, http://jurist.org/hotline/2012/02/kelsey-alford-jones-montt.php. This article was prepared for publication by Brandy Ringer, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Tuesday, January 31, 2012

ECCC Must Prosecute Those Responsible for Torture 5:01 PM ET JURIST Guest Columnist Christopher Hale, Senior Counsel at the American Bar Association Center for Human Rights, argues that the Convention Against Torture should not be used as a tool to protect those accused of torture and that the ECCC must prosecute those responsible for torture in Cambodia... Every weekday at around eight o'clock in the morning in the far outskirts of Phnom Penh, a procession of UN busses pass through the security gates at the Extraordinary Chambers in the Courts of Cambodia (ECCC) or better known as the UN-backed Khmer Rouge Tribunal. The ECCC and its staff will soon be launching the latest salvo in the ongoing war about torture obtained evidence. From Guantanamo Bay to rendition flights all over the world, this controversial legal feud will now make a stop in the rice fields of Cambodia. By way of background, the long-anticipated and long overdue trial of the remaining senior leaders of the brutal Khmer Rouge regime began on November 21, 2011 with opening statements. While a fourth defendant, former Minister of Social Affairs Ieng Thirith, remains in hospital care for her recent diagnosis of dementia and will not be tried at present, the remaining three defendants are the most senior members of the Khmer Rouge's inner circle still alive: Nuon Chea, the Khmer Rouge chief ideologue and second in command to the deceased Khmer Rouge leader, Saloth Sar, better known as "Pol Pot;" Ieng Sary, the Minister of Foreign Affairs and public face of the regime, and Khieu Samphan, the political head of state of the Khmer Rouge government. All of these defendants are charged with war crimes, crimes against humanity (including torture), and genocide. After opening statements, the ECCC Trial Chamber has begun to hear evidence about one of the most horrific episodes of human cruelty and mass atrocities in modern human history. Widespread killings, routine torture and interrogations, massive forced labor camps, and systemic starvations are just a few of the crimes that the defendants are alleged to have masterminded, ordered and supervised. These alleged crimes occurred from border to border of Cambodia for close to four years from April 17, 1975 to January 6, 1979, and resulted in the loss of 25 percent of Cambodia's population. It is no surprise then that the lead international co-prosecutor, Andrew Cayley, and many others believe that this case is the largest and most complex in international criminal history since Nuremberg. This often criticized and underfunded (and under-resourced) tribunal is charged with the difficult task of bringing justice to crimes that occurred over 30 years ago and to a population in which, it is said statistically, every citizen suffered at least one death in their immediate family. Lost in the mix of news coverage about alleged corruption and political interference at the ECCC is that this court will soon make a landmark decision on an issue that is highly contentious, both among the trial parties and among policymakers, counterterrorism experts and human rights commentators the world over: the use of torture evidence. However, unlike the standard paradigm where a government tortures a detainee to force a confession or produce evidence, and subsequently uses that confession or evidence in court against that detainee or one of his alleged co-defendants, the ECCC Trial Chamber faces a far different scenario. The prosecution intends to use as evidence extracts from thousands of pages of prisoner files, including statements and "confessions" that were produced before, during, and after interrogation sessions where Khmer Rouge prisoners were brutally tortured at hundreds of government prison sites throughout Cambodia, most notably at the infamous S-21/Tuol Sleng prison in central Phnom Penh. Hence, factually, the ECCC prosecutors plan to submit this evidence not against a victim(s) of torture, but against those alleged to have tortured, or in this case, ran the regime that allegedly tortured hundreds of thousands of people. In an innovative piece of fancy legal footwork, ECCC defense teams have argued that a provision of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) [PDF] — which forms part of the legal basis of the ECCC itself and relevant international law at large — prohibits the prosecution from using this "torture tainted" evidence. Their argument stems from Article 15 of CAT, which states, "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made." The defense argues that any and all evidence obtained through torture is by definition inadmissible with the small exception of evidence used against the actual perpetrator of torture (and only then, merely as proof that the statement is the byproduct of torture inflicted by the actual torturer(s)), who in this instance are the Khmer Rouge soldiers and interrogators who whipped, electrocuted, water boarded, and pulled out the nails of prisoners, among other techniques [PDF]. As their argument concludes, senior government officials who allegedly instructed or otherwise brought about this torture are immune from such evidence, because they do not fit this limited exception. Whereas Article 15 serves as a shield to protect torture victims from torture evidence being used against them, the defenses' argument turns Article 15 into a sword to impale the prosecution's case. The final twist that makes this legal argument and factual situation so fascinating is that it is an unprecedented issue. No international criminal court has answered, let alone faced, the question of whether CAT Article 15 precludes from the prosecution [PDF] of alleged torturers, or those responsible for such torture, the admission of documentary evidence from the torture at issue. Consequently, the final ruling from the ECCC judges will likely be one of the ECCC's most significant judicial legacies. Notwithstanding the question's exceptional nature, the answer is clear: international justice, standards of treaty interpretation and the integrity of universally accepted legal principles will take a significant step backwards if the ECCC Trial Chamber endorses the defense teams' argument. Both in terms of law and fact, the argument that Article 15 of CAT bars torture evidence from being used against the senior leaders of the Khmer Rouge regime has little merit. While the applicable law does not support the contention by the defense, the facts are even more damaging to their argument. In detention centers throughout the Khmer Rouge's Cambodia, a large segment of the population was mercilessly and routinely tortured for days, weeks or even months in the most gruesome of ways, including being forced to eat human feces. Before, during and/or after such torture, and either by themselves or by an interrogator, the confessions of these torture victims were recorded on paper. Numerous victims had multiple documents drafted at various times throughout this process. Their confessions were seldom a short admission of guilt to a single crime, but rather lengthy biographies — often hundreds of pages — that detailed their lives to date, the identity of their family members, friends and colleagues, their full knowledge of and interaction with the regime and its officials, and gave intricate descriptions of their "criminal" activities. Most alarming, these victims did not "admit" to murders or rapes, but confessed to participating in the most farfetched conspiracies against the Khmer Rouge imaginable, all to "prove" the Khmer Rouge's paranoia that their problems were caused by outside infiltrators. These fictional crimes were, for instance, being a CIA or KGB agent teaching others how to spark internal instability, a capitalist spreading imperialist propaganda, or a Vietnamese sympathizer purposefully not working hard in the rice fields as a way to disrupt the government's agenda. It was regular practice of supervising Khmer Rouge interrogators to send these confessions back with instructions to torture more if the supervisor was not pleased with what he read or felt there were more hidden crimes to uncover. Their instructions were written right on the confessions in red ink, with orders to "beat" more if they refuse to admit to a particular "crime." In the case at hand, the ECCC prosecutors are not, for example, using these confessions to prove that the victims were in fact CIA agents attempting to overthrow the regime. Considering the absurdity of these Khmer Rouge era "crimes," the confessions have zero incriminating value. Instead, these confessions are treasure troves of other important information. For the purposes of prosecutorial work at the ECCC, the confessions contain crucial information about the Khmer Rouge hierarchy and policies, actual evidence that torture de facto occurred, contemporaneous annotations by interrogators, lead evidence for ECCC investigators and lawyers, and corroborating evidence of known, but potentially disputed facts. More importantly, the confessions have significant non-hearsay value. In other words, value not for the incriminating truths the evidence asserts (i.e. "I'm a CIA agent who the US sent to sabotage the government"), but for inferences imbedded in the evidence. The non-hearsay value in portions of these confessions is directly rooted in the Article 15 exception "as evidence that the statement was made," in that there is inferential value to take away from the mere fact that a "statement was made." For instance, some non-hearsay purposes to pull from these "statement[s]" are knowledge, notice, and effect on the reader. This last purpose is particularly relevant and important for this trial, because Khmer Rouge detainees were tortured in part to divulge the identity of other collaborators, and subsequently, these individuals named in written confessions were arrested and tortured themselves, as the cycle goes. Additionally, some victims divulged their familial, social, and work relationships prior to torture, and the Khmer Rouge subsequently rounded these individuals up and tortured them just for being associated with a known "enemy" to the regime. Thus, the confessions show that the "effect" of naming someone on the Khmer Rouge "reader" led to further unlawful arrests, tortures and murders. These confessions help prove this pattern and make it harder for the Khmer Rouge senior leaders on trial to plead ignorance. Using the confessions in this way comports legally with the ECCC Internal Rules and Article 15 of CAT, contrary to the assertions made by the defense teams and others. The ECCC has a very liberal admissibility standard for evidence, and leaves it to the Court's judges — who are best placed — to evaluate the weight, credibility and probative value of the evidence before them. For instance, it is within the responsibilities and capacity of these professional judges to allow in "evidence that the statement was made," attribute only non-hearsay value to the contested evidence (i.e. the torture victim gave the name of a "co-conspirator" who was immediately arrested and tortured by the Khmer Rouge), and not be influenced by the other impermissible uses of this evidence (i.e. the identified co-conspirator is a "criminal"). Judges at international criminal tribunals are regularly asked to carry out such evidentiary analysis. As such, the extracts from confessions should be admitted and judged by the Court as to its value and persuasiveness. In terms of CAT, a plain reading of Article 15 exhibits that the CAT drafters wanted to permit non-hearsay uses of torture evidence, because Article 15's exception — "except against a person accused of torture as evidence that the statement was made" — is itself a non-hearsay exception. Of note, the exception is unclear as to what portion of a "statement," if not all, can be admitted. Put together, the inclusion of a non-hearsay exception with the ambiguity as to the scope of this exception strongly indicates that the CAT's drafters wanted to leave room for judicial interpretation, and thus allow judges to determine how this exception may apply to the myriad of potential fact patterns. The drafters likely anticipated that to effectuate CAT's strong policy towards prosecuting any and all who are responsible for torture so to prevent future torture, an injection of ambiguity in Article 15's exception was necessary. Further adding to the exception's ambiguity, "against a person accused of torture" does not cement that the drafters only meant the physical perpetrators of torture. The more logical explanation in keeping with the object and purpose of CAT is that the drafters intended this exception to include anyone accused of being responsible for torture, including senior government officials that set torture-producing policies and/or gave orders to torture. The firmly established legal principles of command and joint criminal responsibility by definition include using such "on the ground" evidence against far removed government superiors and policy makers. Reading the exception in this manner also adheres to one of the main rationales and raison d'être behind Article 15, which is to remove the incentive to torture in the first place. If senior government officials know such torture evidence cannot be used against the torture victim and can also later be used against them in a prosecution, then their incentive to resort to torture is further diminished. The defenses' reading of the Article 15 exception, on the other hand, would not only remove this additional deterrent value, but would signal to senior government officials that they are shielded from torture evidence as long as they do not personally torture themselves — a manifestly unreasonable result that can hardly be justified under the CAT regime. The biggest concern with allowing the Khmer Rouge defendants to misapply Article 15 in this way is that it will eviscerate CAT itself. It befalls the cautionary proverb "the exception that swallows the rule." It bears stressing that the object and purpose of CAT is to eradicate both torture itself and impunity for those responsible for torture, an odious crime of universal prohibition and abhorrence. To this end, State Parties to CAT — Cambodia being one of them — are obligated to investigate, prosecute and punish commissions of torture on their territory. This explains why the majority of provisions in CAT's operative Part I deal squarely with the investigation and prosecution of torture, even authorizing State Parties to exercise universal jurisdiction to do so. Therefore, permitting Khmer Rouge senior leaders to limit the evidence that can be used to prove their responsibility for torture — especially when it is evidence their regime created — takes away a substantial tool in prosecuting them, not to mention undermining of the CAT regime itself. It is logically dishonest and incomprehensible to argue that CAT mandates for universal prosecution of all those accused of torture, yet permits torturers to prevent the admission into evidence of interrogation reports that record their crimes. Every defendant should have the 'fruits of their actions' used against them at trial, and the Khmer Rouge senior leaders are no different. The odd aspect of this debate is that international human rights groups have lined up in support [PDF] of the ECCC Defense teams' argument that such "torture tainted" evidence should be barred, period. In echoing the defense teams' arguments discussed earlier, these groups lend their support largely because of their unsaid belief that to allow such evidence into trial would lead to a "slippery slope" erosion of the universal protection against incriminating torture evidence being used against torture victims. However, the slippery slope argument is as unconvincing as it is simplistic. If ECCC prosecutors are allowed to use this evidence against these senior Khmer Rouge defendants — people accused of orchestrating torture on a mass scale — it is unclear how this limited exception will descend into a universal decline of CAT Article 15 protections for victims of torture. If anything, as argued above, such a development would create an evidentiary rule that subjects more torturers and their superiors — Khmer Rouge or otherwise — to a legitimate evidentiary use of their acts of torture, hence generating a deterrent effect. In line with the defense teams' case, the international human rights groups lodge other policy arguments that miss the mark. For instance, they argue that the integrity of the judicial process and the fair trial rights of the defendants are violated if such unreliable evidence obtained through such repulsive means as torture is allowed. This argument, however, only carries persuasive value when the evidence admitted is incriminating evidence against the victims of torture (which is not the case here where the ECCC Prosecution is pursuing those responsible for the widespread commission of torture). Khmer Rouge victims were not tortured to admit to their biographical data and history, to confess the policies and hierarchy of the regime, or even to their associations in some cases. The torture was employed to force confessions to imaginary or blameless "crimes;" indeed, many, if not all, admitted to these crimes just to make the torture stop. No one wants admitted — nor will the Court admit — the incriminating evidence the Khmer Rouge tortured to get, so the judicial process is not abused. Relatedly, admitting the non-incriminating evidence and non-hearsay inferences from the confession extracts is not a violation of the defendants' fair trial rights, because as already established, this is the fruits of their alleged criminal activity. It is well within the right of a prosecutor to confront them with this evidence. Not to be overlooked is the backdrop to this debate: defendants at the ECCC benefit from robust substantive and procedural due process and fair trial safeguards. Within their brief, these groups also assert that the confessions cannot be admitted because the law cannot support or appear to support the fruits of such barbarous and inhuman behavior. However, let us not forget the context of this argument. The ECCC prosecutors are charging senior Khmer Rouge leaders for international crimes, including torture directly, and the use of torture to gain "incriminating" evidence indirectly. They intend to use these confessions not to support the use of torture to obtain confessions, but to punish those that institutionalized torture, and did so in part to force confessions. The product of their alleged torture is, above all else, the most fitting evidence to use to secure their convictions. It follows then that it is a higher legal recognition of the horror of torture to admit such evidence in order to prosecute and imprison those willing to inflict torture or empower others to perpetrate it. The most disconcerting aspect of these groups' support is that it makes the perfect the enemy of the good. The main thrust of CAT is about preventing torture in part by prosecuting those responsible for it. To respect the overall object and purpose of CAT to deter and prosecute commissions of torture, the ECCC judges must interpret Article 15 to incorporate the admission of such confessions against government leaders responsible for bringing about the torture in the first place, a mode of interpreting CAT that Amnesty International itself promotes. While it may be difficult to delineate the contours of when torture evidence is admissible and when it is not, this difficulty has no bearing on whether such a judicial exercise should be done. On the contrary, it is the very importance of prosecuting torture perpetrators and their instigating superiors that demands that the ECCC Trial Chamber and other judiciaries undertake the difficult task of determining, within the object and purpose of CAT, when and in what ways the use of torture evidence is permissible. Many have said that due to the serious considerations at stake, reasonable minds can disagree on this issue. The more accurate comment is that reasonable minds should not disagree about an issue that goes to the very core of CAT itself — effective prosecution of those who orchestrate and use torture. One must believe that it is morally and legally more repugnant to bypass the full prosecution of those allegedly responsible for torture — including confronting them with the byproducts of their alleged torture — than it is to construe liberally an evidentiary rule found in the very law that calls for their prosecution. The disgust and revulsion that lead us to loathe the commission of torture should also lead us to recognize that Article 15 of CAT must never be interpreted to benefit those that perpetrate or employ torture. To find otherwise would send the wrong message to would-be perpetrators of torture and significantly weaken the CAT. Author's Note: A special thanks to Mr. Sam Sasan Shoamanesh for his thoughts and comments. Christopher "Kip" Hale is Senior Counsel at the American Bar Association (ABA) Center for Human Rights. Previously, he was a prosecuting attorney in the Office of the Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and has done legal defense work and advised Judges at the UN International Criminal Tribunal for the former Yugoslavia in The Hague. This article represents the views of the author and, except as specified otherwise, does not necessarily represent policy of the ABA or the Center for Human Rights. Suggested citation: Christopher Hale, ECCC Must Prosecute Those Responsible for Torture, JURIST - Hotline, Jan. 31, 2012, http://jurist.org/hotline/2012/01/christopher-hale-eccc-torture.php. This article was prepared for publication by Edward SanFilippo, the head of JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Saturday, January 28, 2012

Statutory Ambiguity and Judicial Deference to the IRS 4:01 PM ET JURIST Guest Columnist Elizabeth Milito, Senior Executive Counsel for the National Federation of Independent Business Small Business Legal Center, says that a case recently argued before the Supreme Court will have significant implications for the jurisprudence surrounding judicial deference for regulations promulgated by executive departments... On January 17, 2012, the US Supreme Court heard arguments in United States v. Home Concrete & Supply, LLC, a case dealing with a US Treasury Department regulation and its interpretation, bringing together tax law, administrative law and questions of the constitutionality of agency actions. In December 2006, the Internal Revenue Service (IRS) was faced with a conundrum: the agency sought to bring charges of "overstatement of basis" against Home Concrete & Supply, LLC and several other taxpayers, based on their 1999 tax returns. The catch? The particular regulation the IRS was seeking to enforce, 26 USC § 6501(a), has a three-year statute of limitations, which in the case against Home Concrete expired in April 2003. The IRS then turned to another regulation within the tax code, 26 USC § 6501(e)(1)(A), which has a six-year statute of limitations, and attempted to claim that the "overstatement of basis" qualified as a violation under that regulation, which deals with omissions from gross income. Unfortunately for the IRS, the US Court of Appeals for the Ninth Circuit in Bakersfield Energy Partners, LP v. Commissioner of Internal Revenue and the US Court of Appeals for the Federal Circuit in Salman Ranch Ltd. v. United States both struck this down, based on the Supreme Court's ruling in Colony Inc. v. Commissioner of Internal Revenue, which held that a regulation substantively identical to the one the IRS was attempting to use against Home Concrete did not include "overstatement of basis" under its purview. The IRS's next step was to issue Treasury Regulation § 301.6501(e)-1, which fixes their problem by simply including an "overstatement of basis" as an omission from gross income, thus getting it under the six-year statute of limitations umbrella. The taxpayers responded by arguing that this is unconstitutional, and that it defies federal agency practice and Supreme Court precedent. Federal agencies are tasked with carrying out the laws issued by Congress, but they may not exceed the powers granted to them by creating legislation themselves. In order to keep the actual legislating in the hands of Congress, there are specific standards for how much discretion the agencies have when it comes to interpreting the laws. In Chevron USA Inc. v. Natural Resources Defense Council, Inc., the Supreme Court came up with a way to delineate the parameters: if a law is passed and Congress specifically addresses how to implement policy relating to a certain issue within its language, there is no deference to federal agencies when it comes to dealing with that issue — they must follow the law as it is written. If, however, the language in the statute is ambiguous, or if there is no language at all regarding an issue, the agency has the discretion to make regulations based on "a permissible construction" of the statute. Unfortunately for the IRS, the very first step in the Chevron process may halt its attempt to change its interpretation of the regulation in order to catch Home Concrete under the longer statute of limitations. The statute the IRS is attempting to change (26 USC § 6501(e)(1)(A)) is identical to another statute that previously went through the Chevron process in the Colony decision, and it was found to be unambiguous by the Court then. That Colony was decided before Chevron and its subsequent test most likely does not matter — the process the Colony Court went through to come to its decision fulfills all the requirements of Chevron, and the conclusion would be the same even had it come after the test was promulgated. The taxpayers are thus arguing that the IRS has no room to interpret the statute differently from its original determination, and thus the Court should not afford the IRS's new regulation the deference normally accorded such agency regulations, unless Congress itself decides to alter the statute first. Relying on the Court's decision in National Cable & Telecommunications Association v. Brand X Internet Services, the government argues that unless a statute unambiguously forecloses a particular interpretation of a statute, conflicting Court precedent will not displace that interpretation. The taxpayers argue in response that the decision in Brand X means that the only time a court's interpretation of a statute trumps an agency's is when the court's interpretation is based on its holding that the statute is unambiguous, and further, that the Court's holding in Colony that the statute was unambiguous applies here. If the Chevron analysis of the statute determines that it is on its face ambiguous and goes on to the second step of the process, the IRS's subsequent interpretation must be considered a "permissible construction of the statute." The taxpayers will be quick to point out what the Court stated in Bowen v. Georgetown University Hospital, when faced with a Chevron "step two" question: "[d]eference to what appears to be nothing more than an agency's convenient litigating position" is "entirely inappropriate." The government will need to show that the new regulation is a permissible reading of the statute, and, perhaps by showing that all of the formal processes for rule-making were followed, overcome the specter of their timing against the looming lawsuit in the process. The outcome of this case will be important for many reasons — it may either reaffirm the place of Chevron in the administrative law scheme or evidence a potential shift in how agency regulations are evaluated by the courts 28 years after that ruling. It may signal uncertainty in the tax code for taxpayers, or it may reaffirm a regulatory position that the IRS finds troubling. Regardless, the coming decision will be an important one for the government and taxpayers alike. Elizabeth Milito serves as Senior Executive Counsel with the National Federation of Independent Business (NFIB) Small Business Legal Center. NFIB is the leading small business association representing 350,000 small and independent businesses nationwide. Milito is responsible for managing litigation and amicus work for NFIB. Suggested citation: Elizabeth Milito, Statutory Ambiguity and Judicial Deference to the IRS, JURIST - Hotline, Jan. 28, 2012, http://jurist.org/hotline/2012/01/elizabeth-milito-irs-chevron.php. This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

Obama's NLRB 'Recess Appointments' are Unconstitutional 3:01 PM ET JURIST Guest Columnist Glenn Taubman, Staff Attorney for the National Right to Work Legal Defense Foundation, argues that President Obama's "recess" appointments of three new members to the National Labor Relations Board are invalid because the Senate was not actually in recess at the time of the appointments... On January 3, 2012, the term of National Labor Relations Board (NLRB) member Craig Becker expired, leaving the NLRB with only two members out of five seats. The NLRB ceased to function that day, since the Supreme Court ruled in New Process Steel v. NLRB that the NLRB lacks authority to conduct business in the absence of a quorum of at least three members. On January 4, 2012, President Obama announced that he was appointing three new members to the NLRB through "recess appointment": Members Block, Griffin and Flynn. However, the Senate was in session at the time of the president's appointments of the new board members. By unanimous consent, the Senate voted [PDF] to remain in session for the period of December 20, 2011 through January 23, 2012. Moreover, the House of Representatives never gave its consent to a Senate recess of more than three days, as would have been required by Article I, Section 5, Clause 4 of the Constitution. The president purported to appoint the new members without the advice and consent of the Senate that is required by Article II, Section 2, Clause 2 of the Constitution. Thus, it is quite clear that the president improperly attempted to name the new NLRB members as "recess" appointments pursuant to Article II, Section 2, Clause 3, even though the Senate was not in recess at the time. Numerous courts have held that an agency whose members have been improperly appointed in violation of the Appointments Clause of the Constitution or related provisions lacks authority to act, and that private parties who are adversely affected by such ultra vires agency action are entitled to injunctive relief, as seen in FEC v. NRA Political Victory Fund. In a Supplemental Brief filed on January 10, 2012, in an ongoing federal court case [PDF] challenging the NLRB's "Notice Posting Rule," the NLRB asserted pursuant to Rule 25(d) of the Federal Rules of Civil Procedure that the purported new members are successors to the previously vacant offices and should be substituted as defendants in their official capacities. The co-plaintiffs in that case contested that filing [PDF], thereby seeking to challenge the lawfulness of the "recess appointments" and the ability of the NLRB to enforce and implement the Notice Posting Rule without a lawful quorum. The co-plaintiffs are the National Right to Work Legal Defense Foundation, the National Federation of Independent Business, the Coalition for a Democratic Workplace and two small individual employers, Southeast Sealing and Delaware Valley Racquet Clubs. The Foundation has a particularly acute reason for challenging the validity of the purported appointments, because Foundation staff attorneys represent workers in six cases currently pending before the Board. In the challenge to the Notice Posting Rule, the co-plaintiffs argue that all but two of the current putative members of the NLRB have been appointed in violation of the Appointments Clause of the Constitution. This is so because the president attempted to appoint Members Block, Griffin and Flynn while the Senate was in session, but without seeking or obtaining the Advice and Consent of the Senate, in violation of Article II, Section 2, Clause 2 of the Constitution. The president's claim that these appointments were somehow valid "recess" appointments is inconsistent with Article II, Section 2, Clause 3 of the Constitution, which requires that the Senate actually be in recess at the time when such appointments are made, as seen in Evans v. Stephens. The longstanding view of the Attorneys General who have issued opinions on this issue, prior to the current appointments, has been that the term "recess" as applied to intra-session appointments includes only those intra-session breaks that are of "substantial length." The Obama administration's Solicitor General stated on the record to the Supreme Court during the oral argument in New Process Steel that a recess must be longer than three days in order for a recess appointment to occur. The seminal opinion of Attorney General Harry Daugherty in 1921 established the consistently followed rule that the recess should be of such duration that the Senate could "not receive communications from the President or participate as a body in making appointments." No such break has occurred in the present circumstances. Indeed, the Senate was in session during the period when the appointments were made and was certainly able to receive communications and participate in the appointment process. This is conclusively proven by the fact that only days before the Obama recess appointments were made, during its ongoing pro forma sessions, the Senate passed the payroll tax bill and communicated with the president and the House with regard to that important legislation. The president signed that legislation, never protesting that it was invalidly enacted due to a congressional recess. On January 6, 2012, a political appointee of the Attorney General's office issued a Memorandum Opinion [PDF] purporting to justify the president's recess appointments. The opinion was not made public until January 12, 2012. In it, the Attorney General's Office has declared for the first time that the Senate's convening of periodic pro forma sessions does not have the legal effect of interrupting an intra-session recess otherwise long enough to qualify as a recess of the Senate under the Recess Appointments Clause. This opinion is contrary to the constitutional power vested in the Senate to "determine the Rules of its Proceedings" (Article I, Section 5, Clause 2). The opinion, by declaring the Senate's ongoing pro forma sessions to be ineffective to prevent a recess, also causes the Senate to be in violation of the constitutional requirement that neither House shall adjourn without the consent of the other for more than three days (Article I, Section 5, Clause 4). The opinion is also contradicted by the actual experience of pro forma sessions of the Senate, as noted above, which demonstrate that the Senate was in fact available to fulfill its constitutional duties to consider any appointments that the president wished to put forward for advice and consent. Thus, the unprecedented opinion of the Attorney General fails to justify the president's attempted recess appointments and should not be adopted by any court. Indeed, if the president has the power to determine for himself when the Senate is in recess, he can do so during any weekend, lunch break, or even when he believes that the Senators' debate has stalled and they are not working efficiently and effectively as a body. Among others, this position is a clear violation of Article I, Section 5, Clause 2, which makes each house the master of its own rules. Since neither the House nor the Senate declared themselves in recess, the purported recess appointments to the NLRB must fail. Glenn Taubman has served as a Staff Attorney for the National Right to Work Legal Defense Foundation since 1982. He is lead counsel for the Foundation in the "Notice Posting" case discussed in this article. Taubman holds a J.D. from Emory University School of Law, and an LL.M. in Labor Law from the Georgetown University Law Center. He clerked for the Judge Warren Jones of the US Court of Appeals for the Eleventh Circuit. Suggested citation: Glenn Taubman, Obama's NLRB 'Recess Appointments' are Unconstitutional, JURIST - Hotline, Jan. 28, 2012, http://jurist.org/hotline/2012/01/glenn-taubman-appointments.php. This article was prepared for publication by Brandy Ringer, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Friday, January 27, 2012

Copyright Case May Have Profound Effect on Treaty Power 6:01 PM ET JURIST Guest Columnist Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, says that in the recent Golan v. Holder decision, the Supreme Court may have opened the door to reconsidering the unconstitutional practice of augmenting congressional authority in the name of implementing treaties... While legal experts continue debating the intellectual property ramifications of the Supreme Court's decision in Golan v. Holder, I want to focus on the dog that did not bark: the treaty power argument that the government abandoned and the Court ultimately ignored. Although the government succeeded in persuading a majority of the Court that it has the power to withdraw certain works from the public domain, it relied solely on the Constitution's Copyright Clause to do so — even though the impetus for the legislation was a trade agreement that amended the Berne Convention for the Protection of Literary and Artistic Works. This development is significant because the government had been implying — and its amici stating explicitly — an alternative ground for Congress's authority to do what it did: that the "re-copyrighting" law was a necessary and proper means of accomplishing the executive power to make treaties. That treaty power argument was not completely out of left field, because the ruling in Missouri v. Holland, an obscure 1920 case concerning the Migratory Bird Treaty Act between the US and Canada, has long been interpreted to suggest that Congress's powers can indeed grow when necessary to implement a duly ratified treaty. According to the conventional gloss on Justice Oliver Wendell Holmes's five-page opinion in Holland, even if Congress has no enumerated power to pass, say, general criminal laws, Congress's power expands to allow such legislation if, say, a treaty with France demands that we pass it. Thus, foreign nations and the executive branch are given the power to change one of the most hotly debated and carefully crafted sections of the Constitution, the scope of Article I congressional power. This bizarre situation led me to join Georgetown law professor Nicholas Quinn Rosenkranz in filing an amicus brief [PDF] in Golan on behalf of the Cato Institute, highlighting the problems with an expansive interpretation of the treaty power (an idea that Professor Rosenkranz had illustrated in a previous article). We argued that, as a matter of constitutional structure, history and logic, a treaty cannot increase Congress's legislative powers. Not only is the power to "make treaties" distinct from the power to execute treaties already made, but such an expansive interpretation of the treaty power would allow Congress and the executive to circumvent the Article V amendment process. In short, Holland is a structural and doctrinal anomaly in tension with other precedent and based on a misreading of constitutional history. It should be overruled or at least reinterpreted. In any event, whether in response to our brief or under the shear force of Justice Scalia's questioning, the government gave up on the treaty power track in one fell swoop during the Golan oral argument [PDF]: JUSTICE SCALIA: It seems to me Congress either had the power to do this under the Copyright Clause or it didn't. I don't think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government. I mean, this is either okay under the copyright clause or it is not. SOLICITOR GENERAL VERRILLI: We completely — JUSTICE SCALIA: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government — SOLICITOR GENERAL VERRILLI: We completely agreement with that, Justice Scalia. That is a positive development, but it is even more remarkable that the Golan dissent likewise failed to reach the Holland issue, even though it logically should have. Since Justice Breyer, joined by Justice Alito, thought that the Copyright Clause did not give Congress the power to pass the relevant statute, he had to see whether there was other authority for it — namely, the treaty power. However, there is no discussion of this issue, or even a citation to Holland. Instead, Justice Breyer simply concluded that "the [Berne] Convention cannot provide the statute with a constitutionally sufficient justification that is otherwise lacking." So where does that leave us? For one thing, the continuing expansive interpretation of Holland is surely in doubt. We need look no further than the the above exchange between Justice Scalia and Solicitor General Verrilli to exhibit such skepticism. Also, former solicitor general Paul Clement argued against the treaty power in the remanded case of Bond v. US — a bizarre case involving a chemical weapons treaty that the Supreme Court unanimously sent back to the US Court of Appeals for the Third Circuit last year. At oral argument, the Court seemed intrigued by, and even sympathetic to, Clement's position that the government lacked the power to use the implementation of an international treaty to prosecute the defendant for what was effectively assault. Just as Bond may make a return visit to the Supreme Court, the Court's ruling in Golan may have provided a glimpse of where the Court will go with the treaty power when it — or some other appropriate case — gets there. Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and is editor-in-chief of the Cato Supreme Court Review. He is often an expert commentator for CNN, Fox News, Univision and other various nationally and internationally syndicated radio and television programs. Suggested citation: Ilya Shapiro, Copyright Case May Have Profound Effect on Treaty Power, JURIST - Hotline, Jan. 27, 2012, http://jurist.org/hotline/2012/01/ilya-shapiro-treaty-power.php. This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, January 26, 2012

Belarus Internet Law Denies Freedoms and Mandates Monitoring 10:01 AM ET JURIST Guest Columnist Johann Bihr, Director of the Press Desk for Europe and Central Asia at Reporters Without Borders, says a new Belarusian law not only limits the online freedoms of individuals, but also creates harsh penalties for Internet providers, all in a government effort to exert more control over citizens... On January 6, Belarus's Law 317-3 took effect, tightening government control over the Internet and raising several questions. Does Law 317-3 herald the creation of a "national Internet" cut off from the rest of the world, like the one Iran is in the process of setting up? Is it a turning point in the escalation of the online censorship on which "Europe's last dictatorship" has embarked? At first sight, neither is the case. However, the new law nonetheless backs up the existing surveillance system with powerful new weapons. It also puts the spotlight on how the Internet is controlled in the country, where news and information have been a pressing issue since the disputed reelection of President Alexander Lukashenko in December 2010. The real turning point was in February 2010 with the issue of Decree 60 at Lukashenko's instigation, which carves up what was until then the last bastion of freedom: the Internet. Its enactment has resulted in the inclusion of Belarus among countries "under surveillance" in Reporters Without Borders' annual report Internet Enemies [PDF]. The decree took effect in July 2010 and established broad control over online content; an official filtering system has been established for sites deemed dangerous and restricted access to the network. Censorship was institutionalized at the top level with the creation of an Operational and Analytical Centre attached to the president's office. In particular, the decree created a vast identification and surveillance system that can be applied to Internet service providers and users. This system also applies to hardware such as computers and mobile phones; these must be identified by service providers who themselves are answerable to the communications ministry. Law 317-3 is intended to impose penalties on those who break the rules. It reaffirms the duty of owners of Internet cafes and those responsible for a "shared connection" to monitor Internet users. The term "shared connection" applies mainly to computers used in offices or apartment buildings, a legacy of the Soviet era when the apartment was a basic unit of society. Those responsible for such connections who fail to record the personal details of Internet users are liable to fines of up to €100. As a result of Decree 60, every user who logs on at an Internet cafe, or by using a shared computer, must give their name and a record must be kept of their surfing history for a year. Owners of Internet cafes and shared connections are also liable to fines if they fail to block access to banned sites. The State Inspection on Electronic Communications provides a blacklist of such sites. The list is based on rulings by a number of institutions such as the Operational and Analytical Centre, the communications ministry and the public prosecutor's office. Criteria for inclusion on the list include sites that are pornographic, sites linked to trafficking in drugs, weapons or humans, or those that contain "extremist" content, a vague notion that has been invoked to support the blocking of major independent news and information sites such as Charter97, Belaruspartisan and the blog of the humorist Yauhen Lipkovich. Blacklisted sites are consistently filtered out in government institutions and educational and cultural establishments. Noncommercial entities seem to not be directly concerned by the last part of the law, which requires the sites of Belarusian companies to be hosted or properly registered in Belarus. For the time being, there appear to be no plans to block access to all information resources based abroad. Nevertheless, great vigilance is required in view of the vagueness of many of the law's provisions, which leave a wide margin of interpretation to the judges who must apply them. The confusing and sometimes contradictory nature of Law 317-3 and the various texts and amendments that make up Decree 60 raise questions about how they can be applied. Some Internet Service Providers (ISPs) confess they have little idea of what they are meant to do. As for those responsible for shared connections, they must determine if they all have the ability and equipment to block access to banned sites and ascertain users' identities. The law clearly has draconian implications, but most likely we will have to wait a few months before we can start to assess it its tangible effects. For journalists, human rights campaigners and Belarusian citizens, online security represents a major challenge. The biggest challenge and danger for now seems to be outside the framework of the law, such as cyber-attacks on independent news sites, hacking of email accounts, surveillance of Skype chats and distributed denial of service (DDoS). DDoS is an attack in which many computer systems simultaneously flood a single website with access requests, causing it to block and shut down, thereby denying the service to legitimate users. In the past few weeks, the KGB security agency has demonstrated that it has complete control of the weapons of the latest phase of the information war. Johann Bihr joined Reporters Without Borders in March 2011. He is currently the Director of the Press Desk for Europe and Central Asia. Previously he worked in the humanitarian field in both Kyrgyzstan and Tajikistan. Suggested citation: Johann Bihr, New Belarus Internet Law Denies Freedoms and Mandates Monitoring, JURIST - Hotline, Jan. 26, 2012, http://jurist.org/hotline/2012/01/johann-bihr-belarus-internet.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Monday, January 23, 2012

Animal Enterprise Terrorism Act Threatens Activism 11:01 AM ET JURIST Guest Columnist Will Potter, an independent journalist who specializes in the topic of eco-terrorism, says the Animal Enterprise Terrorism Act classification of activists as terrorists threatens to end activism, in part to stem corporate profit loss... A recent undercover investigation into one of the nation's largest egg producers, Sparboe Farms, documented hens mangled in cage wire, many with open wounds, and chicks having their beaks burned off by workers. This is just one of many investigations by animal welfare advocates that have exposed standard industry practices, created national dialogue about factory farming and in some cases prompted criminal charges. Newly released FBI documents show that the government is less concerned about these abuses and more concerned about the economic loss caused to businesses. The FBI has also been keeping files on factory farm investigators, and recommends prosecuting them as terrorists. It may come as a shock to most people to learn of potential terrorism charges for investigators who, at worst, have trespassed or rescued a few injured animals. Yet, this is merely the latest chapter of a long-running campaign. I have documented how corporations created the term "eco-terrorism" in the 1980s and then used public relations campaigns, congressional hearings and ambitious court cases to manufacture what the FBI calls the "number one domestic terrorism threat." Perhaps the most dangerous tactic employed by corporations has been the manipulation of post-9/11 fears to enact designer terrorism legislation. Foremost among these new laws is the Animal Enterprise Terrorism Act (AETA). The act was passed in 2006 at the request of the National Association for Biomedical Research, Fur Commission USA, GlaxoSmithKline, Pfizer, Wyeth, United Egg Producers, National Cattlemen's Beef Association and many other corporations and business groups that have a financial stake in silencing animal rights activists. The AETA expands the definition of "animal enterprise terrorism" in 18 USC § 43. Its sweeping language criminalizes "interfering with" the operations of an animal enterprise, instilling a "reasonable fear" in those who are protested, and causing a "loss of profits." The scope of the law is widened further through its emphasis on "tertiary targeting." It not only protects animal enterprises, but also any business that does business with an animal enterprise. In response to civil liberties advocates and in implicit recognition of the vague language, supporters of the bill included a paragraph noting it does not "prohibit any expressive conduct ... protected from legal prohibition by the First Amendment." While it is true that the AETA does not explicitly outlaw protest, saying "This is Constitutional" does not make it so. The true threat of the law is the fear it has created. This chilling effect on First Amendment activity is at the core of a new lawsuit brought by the Center for Constitutional Rights, Blum v. Holder [PDF], filed on behalf of five longtime activists who say the vague, overly broad language of the AETA has made them think twice about using their rights. One of the plaintiffs, Ryan Shapiro, is now a doctoral candidate at the Massachusetts Institute of Technology. He uncovered the FBI file discussed previously through a Freedom of Information Act request. Shapiro once participated in undercover investigations; he stopped after the passage of the AETA. He says this file — which lists him by name — and other prosecutions confirmed his fears of being prosecuted as a terrorist. The industries targeted have countered that the AETA is no different from hate crime legislation targeting the Ku Klux Klan. "It's always been possible to punish those who burn crosses, deface houses or otherwise harass people on the basis of race, religion or sexual orientation," Dan Murphy wrote in Dairy Herd. "But often, the small fines and minimal jail terms prescribed by trespassing and property damage statutes don't fit the egregious nature of the offenses." To most reasonable people, the offenses by factory farms are much more egregious than the act of videotaping them. The purpose of the AETA is not to fulfill a legal void, as supporters claim. Animal rights activists have never committed physical violence against a human being, which is but one trait that makes a comparison to hate crimes so offensive and desperately overreaching. The crimes they have committed, such as trespassing and theft, are already crimes. When it comes to the extreme crimes of underground groups, like the Animal Liberation Front, reclassifying them as "terrorist acts" does not deter the groups. According to a Justice Department report [PDF], animal rights crimes were actually on the decline until the passage of "animal enterprise terrorism" legislation, then they spiked. The purpose of the AETA is to deter aboveground activists like Shapiro by leveraging the power of fear. Exposés by national groups like the Humane Society of the United States, Mercy for Animals, and PETA have rattled these industries to their core in a way that vandalism or arson never could. Animal enterprises are trying to deflect scrutiny, and hope to use the War on Terror to scare their opposition into submission. Regardless of how one feels about animal rights or animal rights activists, the targeting of political activists as "terrorists" because they cause a loss of corporate profits sets a dangerous precedent. Occupy Wall Street, for example, clearly is focused on challenging corporate power and has utilized a diversity of tactics currently classified as "animal enterprise terrorism," including non-violent civil disobedience and home demonstrations. If this legislation is not overturned, it will be the blueprint for targeting all protesters that pose a threat to business as usual. Will Potter is an award-winning independent journalist based in Washington, DC. His reporting and commentary have appeared in the Los Angeles Times, Mother Jones, the Vermont Law Review, and he has testified before Congress. His book, Green Is The New Red: An Insider's Account of a Social Movement Under Siege, was awarded a Kirkus Star for "remarkable merit" and named one of the best books of 2011. Suggested citation: Will Potter, Animal Enterprise Terrorism Act Threatens Activism, JURIST - Hotline, Jan. 24, 2012, http://jurist.org/hotline/2012/01/will-potter-aeta-terrorism.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Saturday, January 21, 2012

Vague and Outdated FCC Indecency Policy Must be Altered 2:01 PM ET JURIST Guest Columnist Jeremy Lipschultz of the University of Nebraska at Omaha says that in FCC v. Fox Television Stations, Inc., it seems likely that the Supreme Court will not force the Federal Communications Commission to alter its vague and subjective indecency policy and will not overturn the outdated precedent established in FCC v. Pacifica... The FCC v. Fox Television Stations, Inc. case is the most recent iteration of an ongoing struggle to apply the US Supreme Court's flawed majority reasoning in FCC v. Pacifica — a 1978 decision that set in motion a scheme to try to protect children from broadcast profanity and nudity. While the channeling of such content to overnight hours seemingly protected some adult's First Amendment rights, I have argued for more than 20 years that the vague and subjective definitions promulgated by the FCC are problematic. In one research project during the 1990s, I compared radio content the Federal Communications Commission (FCC) found actionable and non-actionable. There was no significant difference in sexual and excretory references between the two because "shock jocks" often used innuendo rather than uttering expletives on the radio. By the time that so-called "fleeting expletives" slipped onto the television airwaves, the FCC seemed to shift course by attempting to regulate isolated profanities. At the same time, a Congress that had raised fines tenfold for each violation was clearly pressuring the FCC. In 2008, I made the case that the FCC's 2001 policy statement was subjective because of disagreement about explicitness or graphic nature of depictions, what constitutes dwelling or repeated use and the contextual judgment of pandering or titillating for shock value. Howard Stern and Oprah both broadcast content about oral sexual practices of teens, but the FCC distinguished between the two contexts. The Internet posed two even more serious challenges to the regulatory scheme. First, online forms made it very easy for lobbying groups to activate members in flooding the FCC with still unresolved complaints, and second, YouTube, Spotify and other online services offered children unfiltered content that could be shared on social media sites. In the US Court of Appeals for the Second Circuit's first set of oral arguments for the case at hand, Fox's attorney Carter Phillips contended that the FCC's vague regulation policy cannot be consistent with the First Amendment: "if there's a bubble child out there and the child will be hugely disturbed by exposure to a single word, to me, that is utterly implausible." The same might be said for Janet Jackson's "nipple shield" or a naked woman's rear-end on NYPD Blue. The failed system has resulted in cycles of industry boundary testing, complaints over inadvertent airings and FCC attempts to justify its policies through strained reasoning. Enter the current case before the Supreme Court and recent oral arguments [PDF]. The FCC relies upon licensing of the broadcast airwaves and "enforceable public obligations" to justify its policies. Justice Breyer narrowed his reading of the current case to a test of the 2001 FCC guidelines and the nudity broadcast rules. Justice Kagan, however, challenged the idea that previous cases had offered broadcasters clear guidance on types of offending body parts or length of broadcast time that would indicate a violation. Perhaps this explains why Solicitor General Donald Verrilli seemed to advance on the Court a legal theory that "dramatic departure from what's the norm" is how broadcasters and regulators would know when content is indecent. Another pressing issue is the arbitrary and capricious enforcement of the rules on only radio broadcasters — not cable, satellite or Internet providers. This discriminatory policy should not be upheld because of what Justice Kennedy termed "public value in having a particular segment of the media with different standards." Justice Kennedy's perspective resonated with Justice Scalia: "Sign ... me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts." Count me among those also disturbed by the following exchange between Fox lawyer Phillips and Justice Alito that offered the possibility of retaining the rules for radio only. JUSTICE ALITO: Now, as to radio, what has changed? MR. PHILLIPS: I'm not here - JUSTICE ALITO: - to justify that? Well, could we hold that the policy is invalid as to - on First Amendment grounds as to TV but not as to radio? MR. PHILLIPS: Absolutely, Your Honor, because there are fundamentally different media and there are different protections and the circumstances are different and the Court has recognized that media have to be evaluated individually. Neither the justices nor lawyers before the court offered evidence that they understand radio in an iTunes and Spotify age. To the contrary of the arguments, radio may be facing even tougher pressures to compete with other online media and should not be subjected to more stringent regulations. Justice Alito sees "borrowed time" for broadcasters: "It is not going to be long before it goes the way of vinyl records and 8 track tapes," yet large media companies like Fox "will continue to make billions of dollars on their programs which are transmitted by cable and by satellite and by Internet." In sum, the justices seem to be ready to brush aside temporary rights of radio broadcasters and the minority of over-the-air audience members. There are real dangers in the Court anticipating the future. Movie viewing has been in decline since the 1940s, yet it changed rather than died. Another problem arose when Justice Breyer was questioning the lawyer representing ABC about the depiction of a nude woman as seen by a child in an NYPD Blue episode, for he was comfortable passing a values judgment on the content: "it's about sexual awakening; they are showing a part of a nude woman, the viewer is supposed to put himself in the position of the boy who is seeing her, and the whole thing was titillating." The arguments indicate that, as Justice Breyer observed, "We don't have to overrule Pacifica." It is unfortunate that there is a desire to cling to a past that is long-gone, if it ever existed. The so-called "values" are based upon a view that we should be more restrictive in sexual content than some other nations, at the same time that we are unrestrictive of violent content. As Justice Ginsburg observed, kids now often hear restricted words out on the street: "the children are not going to be shocked by them the way they might have been a generation ago." It does not look as if the Court will overturn Pacifica, reexamine the legal standards of scrutiny (intermediate and strict) or focus on a fundamental First Amendment reading of the case before it. Justice Thomas, who in an earlier case seemed open to overturning the law of Pacifica because of technological change, gave no indication but might place the Court in a 4-4 deadlock (with Justice Sotomayor recusing herself). If so, a narrow decision may punt the case back to the FCC for another round. Neither broadcasters nor the public are served by outdated rules, fettered speech and assumptions about what it means to protect children in a free society. As I wrote in 2008, "New media technology appeared to make it impossible to protect children by simply restricting broadcasters." Jeremy Lipschultz is the Director of the School of Communication at the University of Nebraska at Omaha. He has written several articles on the subject of communication in a modern context and is the author of the book, Broadcast and Internet Indecency: Defining Free Speech. Suggested citation: Jeremy Lipschultz, Vague and Outdated FCC Indecency Policy Must be Altered, JURIST - Hotline, Jan. 21, 2012, http://jurist.org/hotline/2012/01/jeremy-lipschultz-fcc-indecency.php. This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST