December 8, 2005

Along with trials, Iraq needs truth (Daniel Philpott, December 8, 2005, Boston Globe)


THE TRIAL of Saddam Hussein will likely result in his execution. Thus satisfied will be the Greek goddess of justice. Blind, with scales in her hand, she balances evil with justice, dollar for dollar, punishment equaling debts. It was her signature principle — retributive justice — that animated the trials of Nazi war criminals at Nuremberg, and trials following war, dictatorship, and genocide in Yugoslavia, East Germany, Greece, Argentina, and Rwanda. Only retribution for the ancient regime, claim the defenders of trials, can establish the rule of law in Iraq under its new Constitution.

But trials have their limitations. Politically they often backfire. Erich Honecker, the deposed premier of communist East Germany, arrived at his trial in the newly unified Germany pumping his fist in the air, decrying victors’ justice — and became more popular for it.

Trials rarely succeed in prosecuting more than a fraction of major perpetrators, even when they are lengthy and expensive. The International Criminal Tribunal for Rwanda has spent more than $1 billion over eight years to produce 20 convictions — out of 125,000 alleged genocidaires awaiting trial. Political pressures frequently undermine verdicts. Due process, legal procedures, and adversarial incentives often hinder the public revelation of the truth about past injustices. Under pressure for a speedy execution, Saddam’s prosecutors may exclude from their case his colossal massacres of Shi’ites and Kurds, thus inhibiting their public exposure.

Most of all, trials will contribute little to the chief US foreign policy goal of a stable, democratic regime. The persistent hindrance is hatred.

All you really need to know about these dog-and-pony show trials is that the ones who insist on them are the same folks who oppose changing such regimes in the first place.


November 14, 2005

ONE STEP BACK: Senate vote to strip Guantanamo detainees of legal rights affirmed by the Supreme Court sends the wrong message to the world about U.S. justice. (Houston Chronicle, 11/14/05)

THE U.S. Senate narrowly approved an amendment by Sen. Lindsey Graham of South Carolina to deny basic legal rights to prisoners held by the United States at Guantanamo Bay. If approved by the House, the measure would prevent prisoners from seeking redress in American courts and invalidate hundreds of habeas corpus motions already filed by detainees to force authorities to justify their imprisonment.

The measure is contrary to traditional American concepts of justice and will damage U.S. stature abroad.

The U.S. penal facility at Guantanamo holds about 500 people designated by U.S. authorities as enemy combatants. The administration wants to limit their contact with civilian courts to narrow procedural matters. Sen. Graham justified his measure on the grounds that excessive legal actions by detainees were interfering with efforts by military officials to gather intelligence from them.

If enacted into law, the Graham legislation would roll back last year’s Supreme Court ruling affirming the right of detainees to use American courts to challenge their imprisonment.

Who doesn’t recall the moral revulsion with which their teachers explained that FDR was a barbarian for not allowing the hundreds of thousands of German and Japanese POWs challenge their detentions in our courts?


January 13, 2005

A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication with U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer (January 13, 2005, 4:00 pm – 5:30 pm, Washington College of Law)

WCL is honored to welcome Justices Scalia and Breyer to discuss “The Relevance of Foreign Law for American Constitutional Adjudication,” which will address such topics as using foreign court precedent in deciding U.S. constitutional cases and whether the U.S. should take into account shifting world standards on social and moral issues such as the death penalty. The discussion will be moderated by NYU Law Professor Norman Dorsen.

[T]he event will also be livestreamed on the web; details available beginning Jan 10 at www.wcl.american.edu.

The topic is a hugely important one, of course – is Justice Breyer right
in believing that the US constitution is simply an emanation of a
broader global body of universal law and values, and hence it is
appropriate to consider other sources? Or is Justice Scalia right in
insisting that the US legal system owes fidelity to the US constitution
alone? This is the sleeper issue for the Court over the coming decade,
with immense implications for the “values” debate in the US.

Thanks and best wishes,

Ken Anderson


May 15, 2004

Execution of Mexican Is Halted (ADAM LIPTAK, 5/14/04)

In the first case to put in effect a sweeping ruling by an international court in the Netherlands concerning Mexicans on death row here, an Oklahoma appeals court yesterday halted the execution of one of those inmates, Osbaldo Torres. He had been scheduled to be executed on Tuesday.

Hours later, Gov. Brad Henry commuted Mr. Torres’s death sentence to life without parole.

The court and the governor cited the decision six weeks ago of the International Court of Justice in The Hague and noted that Mr. Torres’s right to contact Mexican officials under the Vienna Convention on Consular Relations had been violated.

The international court ruled in April that 51 Mexicans on death row in the United States must be given fresh opportunities to argue that they were harmed by such violations.

The Oklahoma Court of Criminal Appeals, the state’s highest court for criminal matters, yesterday ordered just that, holding that Mr. Torres was entitled to a new hearing.

The commutation is certainly up to the governor, but for American courts to accept this ruling as binding is outrageous. Congress and the President should act quickly to either clarify or break any such treaty obligation.


January 16, 2004

Mexico Awaits Hague Ruling on Citizens on U.S. Death Row (ADAM LIPTAK, 1/16/04, NY Times)

[Osbaldo Torres] is one of 52 Mexican citizens in eight states whose convictions and death sentences are being challenged by Mexico in the International Court of Justice in The Hague. Mexico says the United States violated a treaty guaranteeing that foreigners arrested in this country have access to representatives of their government.

The court ordered the United States last February not to kill Mr. Torres and two compatriots, at least until it issues its final ruling, which is expected to come in the spring.

None of the 52 Mexicans have been put to death. In Mr. Torres’s case, the Oklahoma attorney general asked a state appeals court in November to stay the execution “out of courtesy” to the international court. It was an unprecedented act of deference by an American official, legal experts said.

Mexico is seeking to void all 52 convictions and death sentences, contending that its citizens were denied the right to meet promptly with Mexican diplomats. The defendants should be retried, Mexico says, with statements obtained before such meetings excluded.

Mexico also asked the court to require that the United States honor these so-called consular rights in the future, perhaps by rewriting the standard Miranda warning given suspects before they are questioned by the police.

A ruling in Mexico’s favor would be most beneficial politically, allowing Mr. Bush to ignore it and go ahead with putting aliens to death, while Democrats would be forced to repudiate an instance of the transnationalism that they otherwise advocate.


May 2, 2002

Al Qaeda Detainees: Don’t Prosecute, Don’t Release (Stuart Taylor Jr., April 29, 2002, National Journal)

At first blush, the idea of indefinite “preventive detention” of people convicted of no crime may seem harsh and un-American. Indeed, it has (and probably should have) no basis in domestic U.S. law, with narrow exceptions such as civil commitment of the dangerously mentally ill. Prolonged detention based solely on a suspected propensity to commit future crimes may well be unconstitutional.

But in the current wartime context, these moral objections and legal obstacles are not insuperable. As a legal matter, the president has broad power to decide what to do with terrorists and others captured overseas by the U.S. military. In addition, military prisoners held abroad do not have the same rights under U.S. law as civilian prisoners in the United States. And there are international-law precedents for detaining “unlawful combatants” and members of terrorist organizations until they are no longer dangerous, as well as for detaining prisoners of war until the war is over.

As a moral matter, preventive detention is the least-bad option for dealing with many captured Al Qaeda jihadists. It’s better than setting would-be mass murderers loose to prey on our people or prosecuting them without solid evidence implicating them individually either in war crimes or in specific terrorist conspiracies.

We’ve long believed Stuart Taylor–a liberal, with whom we frequently disagree–to be the best legal affairs columnist on the planet. Here he becomes one of the few Left or Libertarian pundits willing to acknowledge that what he advocates, and what we are now doing, may be both unconstitutional and justifiable. We eagerly await the counterarguments from those who think the President’s oath of office requires him to loose mass-murderers because of constitutional nicities.