|
|
||
|
A Blog for and by ACS members nationwide.
Site Feed Links
Archives The ACS Weblog is maintained by ACS members and is not otherwise affiliated with or sponsored by the ACS National Office.
|
Saturday, January 31, 2004
Whose Ox Is It, Anyway?
The Nation provides some perspective on an issue that has been the subject of considerable partisan whining: "Democrats have used the filibuster only against a half-dozen out of 175 Bush nominees; by comparison, GOP senators blocked more than sixty of Bill Clinton's nominees--most by never giving them a hearing or a vote." Thursday, January 29, 2004
Conservatives Don't Quite Get the UN
First, excuse the length of this post. I have wanted to offer this analysis (which, as far as I can tell, has been common in scholarship and absent in public discourse) at least since Bush's September 12, 2002 speech to the UN. This offers a great opportunity. This is a legal, not a political issue. Johan Goldberg of the National Review argues here, with reference to Perle, that: The emphasis on WMDs was largely the result of lawyers at the State Dept. thinking that was the only "legal" reason we could go to war... [T]o the extent the post-Iraq failure to find WMDs is a disaster for the United States in terms of its credibility, its relationships with allies etc. one could argue that the fault lies in the fact that George W. Bush listened too much to Colin Powell and the State Department instead of the hawks, since it was the Wolfowitz crowd which wanted to emphasize freedom, democracy, stability and the war on terror. Now that no WMDs have been found that rhetoric seems self-serving when in fact those were co-equal priorities all along. If George Bush had talked before the war about bringing freedom and democracy to Iraq as eloquently as he did afterwards, he would be in a lot better shape politically and in the history books. Moreover, I bet he would have been a lot more honest. Bush is a moralist and I'm certain he had the liberation of Iraq and the war on terrorism in his mind as much as anything else. Lets start...with the US Constitution. Article VI, Clause 2: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Now, the US is a signatory to the UN Charter, a treaty as defined above. Article 2.4 of the UN Charter provides: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Two exceptions are provided for in the Charter. Article 51 preserves all States' right to self-defense. Article 39 et seq provides for force authorized by the Security Council. Two "customary law" exceptions that predated the Charter are, not uncontroversially, also asserted, and there is scholarship both ways as to their legality. The first is the use of force to aid in self-determination, rarely invoked since the decolonization period after WWII. The second is humanitarian intervention, the argument made for Kosovo, etc. In either case, force is not authorized by the Security Council, and therefore is nominally illegal, but retains a quasi-legitimate status so long as Security Counsel action seems unlikely due to veto threats (e.g., by the Russians with regard to Kosovo). There are arguments on both sides of this, but it is one exception that seems very much alive today. (Rwanda, many have argued, was the perfect (missed) opportunity for evoking it). And that's it. That's what the US has signed on to. Now, Goldberg's argument is that Bush caused himself unnecessary grief by emphasizing the WMDs, supposedly as evidence that Iraq posed an "immanent threat" to its neighbors (and potentially the US) and so force would be used in self-defense under Article 51. (We need not go into it here, but the law on self-defense uses tanks amassed on the border as the paradigmatic situation in which self-defense is proper. Just ask yourselves, had intelligence been correct and there were dismantled WMD programs and parts scattered and buried around the country, would that have been an immanent threat? 45 minutes? I'm also not addressing the legality of the US enforcing UN resolutions unilaterally or the status of the cease fire since they have been treated and dismissed by many others). Goldberg argues that it is only now, after the fact, that Bush talks about freedom and democracy, supposedly because that would not have flown in the Security Council. Really? Let's imagine that Bush argued that WMDs were just part of the horror that was Saddam Hussein, that he was also actively torturing his own people, attempting genocide against the Kurds, had committed war crimes against Iran and the Kurds, was responsible for mass rape and summary executions, etc. Suppose Powell went to the Security Council with pictures of chemical burns and mass graves instead of vials of liquid and argued that force was necessary as humanitarian intervention. Can you imagine the French objecting? Can you imagine any nation asking to give Saddam more time? This would have been inexcusable, a shame and an embarassment for that nation. And there would have been no point in questioning their motives. Instead, as it went down, we'll never know what their motives were until the State Department officials write their memoirs - was France et al just exploiting the opportunity to assert some power against the US and refused even reasonable diplomatic concessions? (If they did, why didn't we go public with that?) Were they afraid of losing their oil contracts and not being repaid their debt? Did we promise them that their interests would be respected and they were nonetheless obstinate? Did the US not really give diplomacy a chance at all? Did we go just go in and ask for cover for something we were going to do anyway? We just don't know. So back to Goldberg. If he's arguing that it is the State Department's fault for trying to conform our action to the terms of a treaty to which we are a signatory, then perhaps he would prefer that we just withdraw from the UN altogether. (I'm not sure if he's ever taken a position on this.) Instead, I would say that we should just use the UN better. If Neocons are serious about democracy-building and freedom-spreading (at, apparently, any cost), then why wouldn't they embrace, perhaps enlarge, and in any event, add to the precedential weight of the customary humanitarian intervention exception to the UN Charter's prohibition of force? Perhaps because that would open questions like, "If we're acting on humanitarian grounds, why Iraq and not Syria, or Iran, or Egypt, or Pakistan as well?" Well, if they can't answer those questions, then I'm not sure how much weight we're supposed to give to Perle et al and their claim that they aim only to spread democracy and freedom (the "neo" supposedly meaning that they've dropped the "when it is in our interest" qualifier that governed Cold War conservative foreign policy). Former Ambassador to the UN Richard Holbrooke has said that blaming the UN for failures in international relations is like blaming MSG for the Knicks losing. The UN works or fails according to the diplomatic will brought to it. Failure to muster that will is an embarassment for any nation. It is because of the course plotted by our president, which avoided the UN rather than taking it seriously, that it remains unclear who it was that lacked that will. Wednesday, January 28, 2004
Federal Marriage Amendment
Eugene Volokh and Jack Balkin have some thoughts on the Federal Marriage Amendment. One of Balkin's insights: Most constitutional change has occurred through Article III, not Article V. One reason why courts make constitutional law in the way that they do is because our Constitution is so difficult to amend. Judicial review (as we have it today, not as it was originally imagined) is an institutional alternative to Article V amendment. Sunday, January 25, 2004
Treatment of Released Prisoners?
TalkLeft reports that U.S. District Court Judge Nancy Gertner had some interesting assessments of President Bush's proposal for dealing with released prisoners. Friday, January 23, 2004
New ACS Board Members
Eleven new members have joined the American Constitution Society board of directors: • Frederick M. Baron, Founder, Baron & Budd, P.C. (Dallas, TX); • Iris Gonzáles, Associate, Jones Day and former Treasurer of ACS’s Georgetown Chapter (2001-2002) (Dallas, TX); • Eric H. Holder, Jr., Partner, Covington & Burling, ACS Advisory Board Member, and former Deputy Attorney General of the United States (Washington, DC); • Lynn Walker-Huntley, President, The Southern Education Foundation (Atlanta, GA); • Anne Irwin, a third-year law student at Stanford Law School and President of ACS’s Stanford Chapter (Palo Alto, CA); • Dawn Johnsen, Associate Professor of Law, Indiana University School of Law, and former Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice (Bloomington, IN); • Goodwin Liu, Assistant Professor of Law, Boalt Hall School of Law, University of California, Berkeley (Berkeley, CA); • Deval L. Patrick, Executive Vice President, General Counsel and Secretary of The Coca Cola Company, ACS Advisory Board Member, and former Assistant Attorney General, Civil Rights Division, U.S. Department of Justice (Atlanta, GA); • Robert C. Post, David Boies Professor of Law, Yale Law School (New Haven, CT); • Paul M. Smith, Managing Partner, Washington, DC office of Jenner & Block; and • Patricia M. Wald, Chair of the Open Society Justice Initiative, Open Society Institute, ACS Advisory Board Member, former Judge of the International Criminal Tribunal for the former Yugoslavia and former Chief Judge of the U.S. Court of Appeals for the DC Circuit (Washington, DC). Wednesday, January 21, 2004
Guantanamo Brief
An amicus brief was filed last week on behalf of 175 Members of the UK Parliament in the Guantanamo detention case pending in front of SCOTUS. It argues that detention without judicial review violates various international laws, but also is abhorrent to the rule of law tradition the US inherited from and continues to share with the UK. In urging the Court to consider international norms in its decision, it cites to the speech Justice Ginsberg gave at this summer's First Annual ACS Convention. Poignantly, the cite is to her quote of Justice Rehnquist's suggestion that, though the US was the lone democracy in the world at its founding, "it is time the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process." The brief is available here. The Ginsburg/Rehnquist quote is in footnote 99, beginning on page 29. Tuesday, January 20, 2004
Ashcroft Poison To Prosecutors
Via TalkLeft and How Appealing, a great quote from a U.S. News & World Report article about John Ashcroft: "More and more, there's grousing among prosecutors, who say they duck when Ashcroft blows into town to announce a big case because they fear that his polarizing presence could taint the jury pool." Monday, January 19, 2004
Sunday, January 18, 2004
ACS Event Schedule
The American Constitution Society maintains information about upcoming events at its web site. Here's a sample of events coming up this week alone: January 19: University of Michigan Law School ACS's University of Michigan chapter presents "The Right to Vote," a discussion with Congressman John Conyers; Juan Cartagena of the Community Service Society of New York; and Mark Mauer of the Sentencing Project, as part of the school's Martin Luther King Day celebrations. Monday, January 19, 12:30 p.m., in Hutchins Hall at the University of Michigan Law School. January 20: University of Michigan Law School ACS's University of Michigan chapter welcomes Eliott Mincberg, Legal Director and Vice President of People for the American Way to discuss judicial nominations as part of the chapter's three-day series. Tuesday, January 20,12:30 p.m., in Hutchins Hall at the University of Michigan Law School. January 21: Georgetown Law Center ACS's Georgetown Law Center chapter presents "Being Liberal at a Large Firm," a panel discussion featuring Praveen Fernandes, Human Rights Campaign and formerly of Ropes & Gray; Melanie Gerber, Associate, Patton Boggs; Nicole Austin-Hillery, Associate, Mehri & Skalet; Clinton Narver, Associate, Williams & Connolly; Jonathan Stoel, Associate, Hogan & Hartson; Phillip Verveer, Partner, Willkie Farr & Gallagher; and Donald Verrilli, Partner, Jenner & Block. Moderated by Pamela Harris, Member, ACS Board of Directors, and Of Counsel, O'Melveny & Myers. Wednesday, January 21, 6:30-7:30 p.m., on the 12th Floor of Gewirtz at Georgetown Law Center. Reception to follow. January 21: University of Michigan Law School ACS's University of Michigan chapter presents "Packing the Courts," a screening of the Alliance for Justice video, as part of the chapter's three-day series on judicial nominations. Wednesday, January 21, 12:30 p.m., in Hutchins Hall at the University of Michigan Law School. January 22: University of Richmond Law School ACS's Richmond chapter along with Richmond NOW and Lawyers for Choice present "Words of Choice," a program on reproductive rights. Wednesday, January 21 at 7:00 p.m., in the Haynes Room on the first floor of Tyler Hanes Commons at the law school. January 22: Columbia Law School ACS's Columbia chapter will host "The War on Our Freedoms: A Panel on Civil Liberties in the Age of Terrorism." This discussion will center on the collection of essays published by The Century Foundation and will feature Alan Brinkley, Provost and Professor of American History at Columbia University; Ann Beeson, Associate Legal Director of the ACLU; and Anthony Lewis, former columnist for The New York Times and author of Gideon's Trumpet and Make No Law. Richard C. Leone, President of The Century Foundation and co-editor of the War on Our Freedoms, will moderate. Thursday, January 22, 6:00 p.m., in Room 103 of Jerome Greene Hall at Columbia Law School, 435 West 16th Street, New York. Reception to follow. January 22: University of Toledo College of Law ACS's Toledo chapter welcomes Sharon Alexander, Counsel for Law & Policy, Servicemembers Legal Defense Network, for "Don't Ask, Don't Tell: Ten Years in Review." Thursday, January 22, 12:00 p.m., in the University of Toledo Law School auditorium. January 22: Chicago Chapters ACS's Chicago Lawyer Chapter will host a Happy Hour with ACS members, attorneys, law students and friends. Thursday, January 22, 5:00-7:30 p.m., at The W Hotel - City Center, 172 West Adams Street, 2nd floor. Cash bar. January 22: University of Michigan Law School ACS's University of Michigan chapter welcomes US District Judges Avern Cohn and Marianne O. Battani. Thursday, January 22, 4:00 p.m., in Hutchins Hall at the University of Michigan Law School. January 23: Vanderbilt Law School ACS's Vanderbilt chapter will host Judge Gilbert Meritt, Sixth Circuit Court of Appeals, and Professor Kevin Reinhart, Dartmouth College, to discuss "Reconstructing Iraq." Friday, January 23, 3:00-5:00 p.m., in the Flynn Auditorium of Vanderbilt University Law School.
Recess Appointments of Judges
The controversial Pickering appointment prompted Professor Jack Balkin to post some thoughts on the propriety of recess appointments of federal judges. The always-active Talk Left has links to the reactions of other commentators. Thursday, January 15, 2004
Ashcroft's Push for Death
This is a story that many may have missed in the holiday frenzy. There was an article in the Christmas Eve New York Times (reprinted here) about a law review article written by Judge John Gleeson of the Eastern District of New York. (Judge Gleeson has spoken at several ACS events, the latest, at Brooklyn Law School, on this issue). Judge Gleeson denounces Ashcroft's practice of forcing US Attorneys to seek the death penalty even when the US Attorney had declined to do so. Most shockingly (to me) is the AG's practice of weighing in even after a plea had been reached. Thus, as has occurred in the Zapata case, though a defendant has turned over incriminating evidence in exchange for a promise that the death penalty not be sought, Ashcroft may subsequently force the US Attorney to seek the death penalty despite the agreement. This evidence may then be used against the defendant, and may mean a conviction or capital sentence when one or the other would not have been possible without it. This is offensive not just because of its Kafka-esque spin on criminal justice, but because it is a tremendous disincentive for defense attorneys to cooperate with prosecutors. Judge Gleeson deserves applause for taking this stand against a deplorable practice. Hopefully more judges (and perhaps prosecutors) will join in. His article is here: Westlaw Lexis. Correction: Judge Gleeson's presentation on this issue at Brooklyn was not his latest ACS Event. He was the moderator at the November 19th NYU event titled "The Pursuit of Uniformity and Severity in Federal Sentencing: The Feeney Amendment, the New Amendments to the Sentencing Guidelines, and the Attorney General's New Plea Bargaining and Sentencing Policies." An overview of that event, which included Roslynn R. Mauskopf (US Attorney, EDNY), James Orenstein (former Associate Deputy Attorney General), Professor Stephen Schulhofer, Hon. William K. Sessions III (District of Vermont) and Alan Vinegrad (former US Attorney, EDNY), is here on page 5. Saturday, January 10, 2004
Hussein As A POW
At Intel Dump Phil Carter analyzes some rather odd behavior by the Administration concerning the belated designation of Saddam Hussein as a prisoner of war, subject to the 3rd Geneva Convention Relative to Treatment of Prisoners of War. Friday, January 09, 2004
Cancer Changes Republican's Views on Medical Pot
Talk Left has a couple of examples of Republicans who changed their views radically on the use of marijuana for medical purposes--but only after they became sick themselves. Ordinarily I'd respect someone who was big enough to learn and change their views. However, it's hard to sympathize with someone so lacking in empathy that they could not identify with those in pain until they themselves felt pain. Tuesday, January 06, 2004
Intimidation of Judges Is Too Much Even For Rehnquist
Not-exactly-liberal Chief Justice Rehnquist has complained bitterly about a Republican effort to intimidating federal judges by cataloging and publishing information on sentencing. Talk Left points out that there is widespread agreement with Rehnquist's criticisms. Monday, January 05, 2004
More On Ashcroft Recusal
Timothy Noah, writing in Slate, is skepical about the ability of a special counsel to accomplish much in the Valerie Plame case. Then again, like many, he thinks even less of the now-defunct institution of independent counsel. Talk Left points out the recusal still leaves the Bush team investigating the Bush team--not exactly a confidence-inspiring prospect. After lampooning Republican spokesperson Victoria Toensing's 180 degree change in position on the Plame case, Josh Marshall goes on to observe: [C]alling this a 'leak' is simply the way that those who want to hide or ignore this incident use to diminish its significance. The leak was only the mechanism by which the crime took place. Sort of like the Rosenberg leak or Rick Ames' leaks ... Thursday, January 01, 2004
Ashcroft's Recusal
TAPPED has some thoughts on John Ashcroft's belated recusal from the criminal investigation into the outing of CIA undercover agent Valerie Plame, apparently orchestrated by one or more White House operatives for political reasons. Josh Marshall at Talking Points Memo has some informed and plausible speculation. I know nothing about the merits of the criminal case, but my sense is that Ashcroft has handled this about as poorly as it could be handled. No matter what happens at this point, Ashcroft's insistence on keeping control of the investigation for so long will cause many Americans of good will to assume the worst about his handling of the matter. To mean much, he should have recused himself right away. Further, there is still no independent counsel. Although said to be respected professonals, Ashcroft's designees still work directly for the Department of Justice. It's a bad situation. Marshall notes: It's always been more or less an open secret who the perps are in this case. And they're very high-level folks -- people with deep influence of the formulation and implementation of policy. And the wrong-doing here is directly related to the execution of policy. So if a crime was committed, and if an indictment is forthcoming, it will bring under scrutiny a whole complex range of wrong-doing (though not necessarily criminal wrongdoing) relating to administration war policy and intelligence manipulation and other stuff we can go into at a later date. |
|
Web
Log