Just a quick note to extend our sincere congratulations to our dear friend and colleague, Liz Grimm Arsenault, on winning Georgetown’s Dorothy Brown Award for 2012. Awarded annually, the Dorothy Brown Award is presented by the Georgetown University Students Association on behalf of the undergraduate student body. Below is the text from the Award when it was first created in 2002 upon the retirement of Provost Dorothy Brown:

“We, the students of Georgetown University in celebration of her distinguished service to our community, hereby commission the Dorothy Brown Award to be presented annually at Georgetown Day to an outstanding member of the faculty who demonstrates a high level of commitment to the educational and extracurricular advancement of students and contributes significantly to the fulfillment of the Catholic and Jesuit mission of Georgetown University, as selflessly exemplified by the legendary namesake of this award.”

Liz is an Assistant Dean in the School of Foreign Service with the BSFS Program. She earned her Ph.D. in Government from Georgetown University, her M.A. in Security Policy Studies from The George Washington University, and her B.A. in Government and History from The College of William & Mary.

Prior to her position as a Visiting Assistant Professor of Government at Georgetown University, she taught as a Visiting Instructor at the College of William & Mary. She teaches courses in International Relations, International Security, International Law, U.S. National Security, and Terrorism and Insurgency.

Liz has worked in the defense and security sectors of the U.S. government, including the National Security Agency, the Office of the Secretary of Defense for Policy in the Department of Defense, and the National Counterterrorism Center.

Many, many congrats to Liz!! She is an outstanding teacher and scholar!

Douglas B. Shaw on the 2012 Seoul Nuclear Security Summit from GW’s Elliott School on Vimeo.

My dear friend and colleague offer insightful comments on the upcoming nuclear summit.

Eric Holder (AP/Brian Kersey)

Yesterday, Attorney General Eric Holder delivered an address at Northwestern University School of Law on “Ensuring Security, Justice, and Liberty.” In this address, he outlined numerous aspects of the Administration’s approach to national security issues– including the use of civilian courts, military commissions, and targeted killings. While there are many elements of the address that are worthy of comment, I want to highlight one: the preemptive use of force.

As will be recalled, the Bush Administration issued The National Security Strategy of 2002. In that document, the Administration sought to relax the imminence requirement of the famous Caroline incident of 1837. Caroline embodied what many consider to be the accepted criteria for using force preemptively. It required that in order for a state to use force in advance of an actual attack, two criteria needed to be met: necessity and proportionality. Necessity meant that the state seeking to use force preemptively had to show that an attack was imminent. In the oft-quoted words of Daniel Webster, the state would need to demonstrate “a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.” Proportionality meant that the force had to be proportionate to the threat that was presented.

In 2002, the Bush Administration offer the following claim:

For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack.
We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning. The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively. (emphasis added)

Again, the Bush Administration was arguing for a clear relaxation of the imminence requirement from Caroline. And it seems that Eric Holder is suggesting the same thing. In his address, he explains:

The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States.   As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties.   Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack.   Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed. (emphasis added)

Given the nature of non-state actors and the challenges posed by unconventional means of combat, this relaxation of Caroline makes sense. But does existing international law recognize this change? And if so, what criteria would one use in its place?

MONDAY, MARCH 5, 2012
ORDER IN PENDING CASE
KIOBEL, ESTHER, ET AL. V. ROYAL DUTCH PETROLEUM, ET AL. This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs.

Lyle Denniston over at SCOTUSblog explains:

The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an expanded argument on the scope of a 1789 law giving aliens a right to sue in U.S. courts.  The case of Kiobel v. Royal Dutch Petroleum (docket 10-1491) was heard just last Tuesday, and some of the Justices at that time questioned whether the Alien Tort Statute allowed U.S. courts to hear lawsuits for violations of international law on foreign soil.   That is the issue lawyers are to address in new legal briefs due on a schedule that runs through June 29.  The order is here.

The Court gave no reason for its action, but at its private Conference last week, it had examined a new case involving that 223-year-old law that raised directly the question of whether it applied to overseas conduct — that is, the issue of “extraterritoriality.”   That other case was Rio Tinto PLC, et al., v. Sarei, et al. (11-649).   When the orders from Friday’s Conference were released Monday morning, there was no mention of that case.  Four hours later, the new order emerged.   The Justices faced the option of granting the Rio Tinto case and essentially starting over in interpreting the ATS, or expanding the review of the Kiobel case.  They chose the second option, with the effect of putting the case over to the Term starting October 1.

Here is the added question to be argued in new briefs: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”   The Kiobel parties are to file their brief by May 3, with the oil companies involved due to file their response by June 4.  A reply brief is due by June 29.  Amici also may file added briefs as dictated by Court rules.

It would have been legally possible for the Justices to have gone ahead, this Term, and decided whether corporations could be sued under the ATS for alleged roles in atrocities or other human rights abuses in foreign lands.   A decision against corporate liability would have made it unnecessary to decide the extraterritoriality issue.  But that would have left open whether others could be sued for such foreign wrongdoing under the ATS, and that is a broader question.  The Court has now promised to consider answering that question.

In addition to the extraterritoriality question, the Court also seemed to be promising a ruling on another issue under ATS: can a party that is being sued be challenged not for directly engaging in human rights abuses, but for “aiding and abetting” someone else who did so.  That question appears to be within the part of Monday’s order that called for briefs to address “what circumstances” can be alleged under ATS.   That was another of the questions that had been posed in the Rio Tinto case, and it was a question posed by Justice Antonin Scalia at last week’s oral argument.  A ruling on the “circumstances” that may be the target of an ATS case would also potentially include whether corporations may be targeted, it would appear.

While the question the Court raised for lawyers appeared to focus explicitly on the meaning of the law, it is at least conceivable — if not very likely — that the Court might go so far as to question in the new round whether Congress has the constitutional authority to pass a law authorizing a lawsuit in which both sides are non-citizens and the misconduct occurred entirely overseas.  At last week’s argument, Justice Samuel A. Alito, Jr., asked: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?”   The Court, of course, has a long tradition of not deciding constitutional issues if it can decide a case on other grounds, and it may well follow that tradition in this instance.

The new order was another, vivid illustration of the tendency of the “Roberts Court” to take on the broadest kind of controversy in cases brought to it.    The current Term of the Court is quite literally filled with cases of a broad sweep, including the constitutionality of the new federal health care law and the power of states to restrict the activities within their borders of undocumented immigrants.  And, for next Term, the Court had already taken on the abiding question of whether it is unconstitutional for public colleges and universities to use race in selecting their entering classes of students.   In addition, there is a strong chance that the Court next Term could be reexamining its controversial ruling in Citizens United v. Federal Election Commission in a new case from Montana — that is, if it does not dispose of that case by a summary ruling this Term, which is a possibility.

The Court’s order in the Kiobel case made no mention of another case on corporate liability for human rights violations that also was argued last Tuesday — Mohamad v. Palestinian Authority (docket 11-88).  That case, however, involves an entirely different law — the Torture Victim Protection Act of 1992 — and the issue is whether a U.S. citizen can sue a foreign political organization for such atrocities.  The Mohamad case asks the Court whether the word “individual” as the target of a TVPA lawsuit includes a political organization or another non-human entity, including a corporation.   Presumably, the Court can go ahead and decide that issue without waiting for its review of the scope of the Alien Tort Statute.  In fact, at last Tuesday’s argument, there were strong indications that the Court was unmoved by the notion that “individuals” means anything other than human beings.

It is quite unusual for the Court, after briefing and argument on a case, to put it over until its next Term.  But it is not unprecedented: in fact, the Court’s Citizens United ruling on campaign finance was put off to a following Term, and expanded in scope.  The result was a much more sweeping case than the one that reached the Court initially.

Monday’s order almost certainly have the support of at least five Justices, although this is not spelled out in the formal rules of the  Court.   The Court does not reveal how its members vote on such an issue.  It takes the votes of four Justices to hear a case in the first instance, but disposition after that very likely depends upon majority support; the reasoning, if not spelled out in the order, may vary among the Justices in such a majority, however.

Interesting. This was not what I was expecting at all.

Dear Members of the Georgetown Community:

There is a legitimate question of public policy before our nation today.  In the effort to address the problem of the nearly fifty million Americans who lack health insurance, our lawmakers enacted legislation that seeks to increase access to health care. In recent weeks, a question regarding the breadth of services that will be covered has focused significant public attention on the issue of contraceptive coverage.  Many, including the United States Conference of Catholic Bishops, have offered important perspectives on this issue.

In recent days, a law student of Georgetown, Sandra Fluke, offered her testimony regarding the proposed regulations by the Department of Health and Human Services before a group of members of Congress.  She was respectful, sincere, and spoke with conviction.  She provided a model of civil discourse.  This expression of conscience was in the tradition of the deepest values we share as a people. One need not agree with her substantive position to support her right to respectful free expression.  And yet, some of those who disagreed with her position – including Rush Limbaugh and commentators throughout the blogosphere and in various other media channels – responded with behavior that can only be described as misogynistic, vitriolic, and a misrepresentation of the position of our student.

In our vibrant and diverse society, there always are important differences that need to be debated, with strong and legitimate beliefs held on all sides of challenging issues. The greatest contribution of the American project is the recognition that together, we can rely on civil discourse to engage the tensions that characterize these difficult issues, and work towards resolutions that balance deeply held and different perspectives.  We have learned through painful experience that we must respect one another and we acknowledge that the best way to confront our differences is through constructive public debate.  At times, the exercise of one person’s freedom may conflict with another’s.  As Americans, we accept that the only answer to our differences is further engagement.

In an earlier time, St. Augustine captured the sense of what is required in civil discourse: “Let us, on both sides, lay aside all arrogance.  Let us not, on either side, claim that we have already discovered the truth.  Let us seek it together as something which is known to neither of us.  For then only may we seek it, lovingly and tranquilly, if there be no bold presumption that it is already discovered and possessed.”

If we, instead, allow coarseness, anger – even hatred – to stand for civil discourse in America, we violate the sacred trust that has been handed down through the generations beginning with our Founders.  The values that hold us together as a people require nothing less than eternal vigilance.  This is our moment to stand for the values of civility in our engagement with one another.

Sincerely,

John J. DeGioia
President
Georgetown University

From the Georgetown University website On Civility and Public Discourse

BBC Graphic June 2011

A previous post noted a recent article on China’s claims in the South China Sea. The most knowledgeable person I know on this issue is my dear friend and former Georgetown colleague, Dr. Charles E. Pirtle. Professor Pirtle was a mainstay in the School of Foreign Service, where he served as an Associate Dean and taught political geography for over 20 years– including the required course, “Map of the Modern World.”  He offers the following comments:

I would like to make just a few brief points about this issue. First, there is nothing new about this claim. China set forth its claim to all the islands located within the “cow’s tounge” in its 1992 law on the Chinese Territorial Sea and Contiguous Zone. My “old” Map students should recall that I used a map similar to the one used here that showed China’s claims to virtually all of the South China Sea. That map can be found on p. 120 of Michael Klare’s book, “Resource Wars,” published in 2001. Second, the outline of the “cow’s tounge,” which consist of nine dashed lines around the islands, rocks and reefs of the South China Sea, first appeared on maps issued by the Nationalist Government of China in 1947; they were just maintained by the Communist Government when it took power in 1949.Third the issues raised by these claims are just one part of a multitude of different disputes that China has with its neighbors and the international community over sovereignty, jurisdiction, and the balance between coastal-states and maritime state rights in the South China Sea. For those interested, read Peter Dutton’s recent article, “Three Disputes and Three Objectives: China and the South China Sea,” in the current (Autumn 2001) issue of the Naval War College Review, which is available on-line.

Baltasar Garzón

An excellent editorial in the New York Times reports on the strange trial of Spanish Prosecutor Baltasar Garzón:

Terrible crimes were committed during and after Spain’s 1936-39 civil war that no court has yet examined or judged. No one knows how many people were taken away, tortured and murdered. Now, one of Spain’s top investigating magistrates, Baltasar Garzón, is on trial for daring to open an inquiry into those atrocities.

Spain is now a vibrant democracy, but Judge Garzón’s trial, which opened last week, is a disturbing echo of the Franco era’s totalitarian thinking. He faces criminal charges that could suspend him from the bench for 20 years for defying an amnesty enacted in 1977 to smooth the transition to democracy. He rightly counters that under international law, there can be no amnesty for crimes against humanity and that unsolved disappearances — thousands of mass graves are unopened — constitute a continuing crime.

In 2008, Judge Garzón briefly began an official inquiry, ordering the opening of 19 mass graves and symbolically indicting Gen. Francisco Franco and several former officials, none still alive, for the disappearance of more than 100,000 people. An appellate court shut the inquiry down. The next year, two far-right groups brought criminal charges against the judge for defying the amnesty law. The government’s prosecutor argued that no crime had been committed, but the Supreme Court accepted the case.

Separately, Judge Garzón faces criminal charges for rulings in two other politically charged cases. We cannot judge the merits of these. But criminal prosecution of magistrates for their rulings is rare in Spain, and could chill judicial independence.

Judge Garzón became famous for his prosecutions of Basque terrorists, Argentine torturers, Chile’s former dictator, Gen. Augusto Pinochet, and Spanish politicians. His powerful enemies now see a chance to end his career.

Judge Garzón is undeniably flamboyant and at times overreaches, but prosecuting him for digging into Franco-era crimes is an offense against justice and history. The Spanish Supreme Court never should have accepted this case. Now it must acquit him.

The Los Angeles Times reports:

A federal appeals court has upheld a ruling that blocked the implementation of an Oklahoma law barring judges from considering international or Islamic law in their decisions.

The 10th Circuit Court of Appeals, in a ruling released Tuesday, affirmed an order by a district court judge in 2010 that halted the law from taking effect. The ruling also allows a Muslim community leader in Oklahoma City to continue his legal challenge of the law’s constitutionality.

The measure, known as State Question 755, was approved with 70% of the vote in 2010.

The law is an amendment to the state constitution and bars courts from considering the legal precepts of other nations or cultures. “Specifically, the courts shall not consider international law or Sharia law,” the law reads.

The appellate court opinion pointed out that proponents of the law admitted to not knowing of a single instance in which an Oklahoma court applied Sharia law or the legal precepts of other countries.

“This serves as a reminder that these anti-Sharia laws are unconstitutional and that if politicians use fear-mongering and bigotry, the courts won’t allow it to last for long,” said Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma.

Awad sued to block the law, contending that it infringed on his 1st Amendment rights. He argued that the law would stigmatize those who practice Islam and deny him rights available to those practicing other religions. For instance, he argued that the law would affect the execution of his will after his death because it instructs the judge to use Sharia law if his wishes are not clear.

Proponents of the law argued that it was intended to ban courts from considering all religious laws and that Sharia was simply used as an example. The appeals court, however, disagreed.

“That argument conflicts with the amendment’s plain language, which mentions Sharia law in two places,” the court opinion read.

The court ruled that Awad made a “strong showing” that he is likely to succeed in his challenge of the law. The ruling keeps the injunction in place as Awad’s lawsuit continues.

The appeals court took up the case after the Oklahoma attorney general’s office appealed the injunction order. “My office will continue to defend the state in this matter and proceed with the merits of the case,” Atty. Gen. Scott Pruitt said in a statement.

Sharia — which translates roughly as “path” in Arabic — is intended to guide Muslims to connect with God and is rooted in mercy and compassion, said Salam Al-Marayati, the president of the Muslim Public Affairs Council in Los Angeles. It governs many common activities, including fasting and daily prayer.

Al-Marayati argues that campaigns to ban Sharia present a distorted view of Islamic law. “They equate it with unjust and abusive practices originated by tyrannical regimes in the Middle East,” he said. “They use misconceptions about Muslims to misinform the American public.”

The 10th Circuit decision can be found here. A very wise decision.

WASHINGTON (Reuters) – It was New Year’s Eve when President Barack Obama reluctantly signed into law the legislation he had earlier threatened to veto: a mammoth U.S. defense bill with a multitude of restrictions on the administration’s handling of detainees.

Administration officials had spent weeks trying to rewrite the legislation in Congress. And although Obama signed it into law, he also issued a lengthy, at times indignant, “signing statement” listing the many ways he disagreed with the measure, and suggesting he may even ignore parts of it.

This was the sort of thing that Obama promised he would not do back when he was a candidate for the White House. He told the Boston Globe in 2007 that he would not use presidential signing statements to “nullify or undermine” instructions from Congress enacted into law, declaring that his predecessor George W. Bush had gone too far down that path.

Typically, a U.S. president merely puts his signature on a bill in order to sign it into law. Bush, however, often added “signing statements” to assert, for example, that a particular bill infringed on the constitutional powers of the presidency.

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In the past two weeks, Obama has issued two strongly worded signing statements criticizing provisions of new laws. The previous one was two days before Christmas, when the president signed into law a massive bill funding the U.S. government through the end of the current fiscal year on September 30.

“I would say that his most recent signing statements are of the variety common to the Bush presidency, where the president makes some strong constitutional claims” but is vague on what he would do about them, said Christopher Kelley, a professor at Miami University of Ohio who has researched presidential signing statements.

“Obama seems to be saying that he would abide by the law until he was no longer able to abide by the law. That is a hard thing to quantify,” Kelley said.

“Signing something and saying you are not going to follow portions of it is problematic,” said Anthony Clark Arend, a professor of government at Georgetown University. “I believe that the framers of the Constitution would have felt that’s exactly the kind of legislation you need to veto.”

But the recent defense and the spending bills were important to the running of the U.S. government, and Obama was almost “held hostage” by them, Arend added. So Obama signed them – with reservations.

“He is declaring he will not follow it if he feels it is in the best interest of the country,” Arend said.

Many U.S. presidents have attached comments to laws as they sign them. But the practice became controversial under Bush, especially after he signed a torture ban in 2005 but attached a statement that legal specialists said reserved the right to bypass it as commander in chief.

CLAIM OF EXECUTIVE AUTHORITY

Obama, a Democrat, has issued 29 signing statements since he entered the White House in 2009, versus 172 during the eight-year presidency of the Republican Bush, according to Kelley.

“We’ve never had a president assert as broad a claim of executive authority as we did under Bush,” Arend said.

And White House officials say Obama is handling signing statements exactly as he promised he would as a candidate.

Responding to a 2007 candidate questionnaire from the Globe, Obama chided Bush, saying he had “attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions … and to raise implausible or dubious constitutional objections to the legislation.”

But Obama added: “No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives.”

The New Year’s Eve signing statement “falls cleanly within the guidelines articulated by then-presidential candidate Obama four years ago,” White House deputy press secretary Josh Earnest said.

In March 2009, shortly after he took office, Obama issued a memorandum promising restraint, saying, “I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional.”

Still, by mid-2009 lawmakers already were complaining about some of his signing statements.

In a high-profile case, Obama signed a bill with more funding for the International Monetary Fund and the World Bank, but angered leading Democrats when his signing statement said he did not have to comply with some of the attached conditions.

In the December 31 statement on the bill authorizing defense programs, Obama bristled at the requirements for military custody as a rule instead of prison for suspected al Qaeda militants. He called them “ill-conceived” and said they would do nothing to improve U.S. security.

Supporters say the requirements merely codify what has been the practice for some years.

Obama suggested he was only signing the measure because it included a presidential waiver, saying this would allow the administration to continue being “relentlessly practical” in its handling of al Qaeda suspects. He declared his administration would not authorize the indefinite military detention without trial of American citizens.

Obama objected to restrictions on his authority to transfer detainees to a foreign country, and said, “My administration will interpret them to avoid the constitutional conflict.”

Reuters first reported last month that the Obama administration is considering transferring to Afghan custody Taliban prisoners held at the Guantanamo Bay detention center [ID:nL1E7Ns15Z].

Obama’s problems with the defense bill weren’t limited to detainees. He said he would interpret rules about sharing classified information with Russia in a way that does not limit his ability to conduct foreign affairs.

And he said that if new sanctions targeting Iran end up conflicting with his constitutional authorities, “I will treat the provisions as non-binding.”

Senator Carl Levin, a Democrat who was a co-sponsor of the new law’s provisions on detainees, said Congress intended for the law to be flexible.

“One of the goals of this long-overdue law on detainee policy was to give the executive branch adequate flexibility in its implementation, and I am glad that we succeeded. The president’s stated intention to use the flexibility Congress has given him is consistent with the statute,” Levin said in a statement e-mailed to Reuters.

Arend of Georgetown University said he felt the current angry political climate in Washington to some extent had created a situation where Obama was issuing more pointed, less diplomatic, signing statements.

“My sense is that Congress is becoming more and more intrusive on the president’s constitutional powers. And so to some degree, that is pushing the president in the position to challenge this. So I don’t know if he’s becoming more like Bush, or if Congress is becoming more intransigent. It’s probably a little bit of both,” Arend said.