Introducing Witness Iraq

International Law , , ,

Comar Law has initiated a new project that aims to memorialize and record testimony from witnesses, victims and survivors of the 2003 invasion of Iraq by United States forces – Witness Iraq.

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Witness Iraq seeks to document and record testimony of those harmed by the 2003 US led War in Iraq (the “Iraq War”). Witness Iraq does this as a means of (1) preserving such testimony for historical purposes; (2) laying a record in the hopes that testimony can help prevent similar harms in the future; and (3) at the request of survivors, providing legal information related to potential avenues of redress under domestic and international law.

Why the need for Witness Iraq? History records generals, princes and battles, but it is strangely silent on the plight of victims of war. As the war fades from actual memory, the stories of victims and survivors fade as well, and oftentimes die with the holders of those experiences.

The Iraq War was also one of the most carefully crafted propaganda wars in history. With a handful of exceptions (such as Dahr Jamail), journalists were embedded with troops and thus had limited access to people and places not under US control. As should be common knowledge, leaders sought to gain approval for the Iraq War by insinuating that Saddam Hussein was linked to al-Qaida or that he had weapons of mass destruction: claims that were untrue.

The gathering of testimony is also an important element of this project. In contrast to a more basic interview, the taking of testimony carries legal weight in Anglo-American jurisprudence and acts as an official record of events.

Please help spread the word about Witness Iraq to people and parties who may be interested in participating by contributing their testimony.

Can the President kill American citizens without a trial?

Constitutional Law, International Law , , , , ,

Can the President of the United States kill American citizens without a trial?

According to President Obama, the answer is yes. At least two American citizens have been targeted and killed by the Executive Branch by the targeted use of mechanized drones. One was Anwar al-Awlaki, who was killed in September 2011 in Yemen for alleged terrorist activities.

Al-Awlaki’s 16 year old son, also an American citizen, was killed two weeks later by a drone, also in Yemen.

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The Obama Administration has refused to provide its legal analysis justifying its targeted killings of American citizens. On January 2, 2013, a federal judge dismissed a Freedom of Information Act request by journalists and lawyers who requested such legal memoranda, concluding that the legal analysis was protected by government privilege exemptions.

While it is impossible to fairly analyze the Obama’s Administration position without hearing its point of view, there is a high bar — perhaps an impossible bar — in justifying these actions.

First, the Bill of Rights provides, plain as day, that a person cannot be deprived of “life, liberty or property” without due process of law. (U.S. Const., Amend. V.)

This provision of the Bill of Rights is based on Chapter 39 of Magna Carta, which declares, “No freeman shall be taken or imprisoned, or disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor shall we go upon him, nor condemn him, but by lawful judgment of his Peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.” (Regnal. 25 Edw. 1 cc. 1 9 29.)

On its face, then, killing an American without providing notice of charges and a trial — basic constitutional protections — is unconstitutional and in direct violation of centuries of Anglo-American tradition.

Second, to the extent that al-Awlaki was engaged in war against the United States, then he was violating United States law by engaging in treason against the United States. Treason is defined in the Constitution and 18 U.S.C. § 2381:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort with the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years, and fined under this article…

As a traitor, al-Awlaki was still entitled to the protections of the Bill of Rights and should have been afforded a trial. The Constitution specifically provides that a finding of treason may only take place upon “the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” (U.S. Const., Art. III, sec. 3.)

Perhaps the Administration’s best argument in defense of killing American citizens is that the United States has the ability, at any time, to neutralize imminent threats who seek to harm or destroy American assets or innocent lives, and can do so through the use of drones. The Supreme Court has acknowledged that in the heat of battle, due process protections may be unavailable because of the reality of war.

But if this is the justification for killing Americans, the Obama Administration must still nonetheless explain why and how such an exception reaches someone living in Yemen – and this could open troublesome questions as to whether the United States is technically in a state of war (notwithstanding the rhetoric of the “War on Terror”), the justification for firing drones in another sovereign country like Yemen, and how success in any such war will be measured. These are questions that have yet to be be answered by anyone in power, eleven years after 9-11.

Indeed, it is possible that President Obama committed a criminal act by targeting and killing an American citizen. The United States Criminal Code makes it a crime for a “national of the United States” to “kill[] or attempt[] to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” (18 U.S.C. § 1119). The law provides no exception for the President (who is a national of the United States).

In dismissing the FOIA request, Judge McMahon was obviously troubled by her own decision. She wrote, “The FOIA requests here in issue implicate serious issues about the limits on the power of the Executive Branch under the Constitution and laws of the United States, and about whether we are indeed a nation of laws, not men.”

But she concluded, “However, this Court is constrained by law . . . I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

James Madison, fourth United States president and chief drafter of the Constitution, once counseled, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.” There is no greater power than the power of the Executive to kill, and this power has been constrained for hundreds of years by the rule of law. We live in an era when such power goes increasingly unchecked.

Will the Supreme Court gut human rights lawsuits under the Alien Tort Statute?

International Law , ,

There is a significant risk that a major US human rights law — the Alien Tort Statute (28 U.S.C. § 1350) — will be gutted by the United States Supreme Court later this year.

The Alien Tort Statute is a law passed by the first Congress in 1789. It provides federal courts with jurisdiction to hear claims by non-US citizens for torts “committed in violation of the laws of nations or a treaty of the United States.”

Since the 1980s, federal courts have routinely permitted human rights suits by non-US citizens to proceed under the Alien Tort Statute, particularly where plaintiffs have alleged torture, war crimes, genocide, crimes against humanity, arbitrary detentions and summary executions.

Critically, federal courts have permitted such suits not only against individuals, but also against corporate entities. Thus, in Doe v. Unocal, 13 Burmese villagers were able to file suit against Unocal (now owned by Chevron) in a Los Angeles federal court alleging violations of human rights, including forced labor, related to the construction of an oil pipeline. The case, originally filed in 1997, worked its way up and down the appellate courts and was finally settled in 2004.

This entire framework of human rights litigation is now at risk because of a case pending before the United States Supreme Court, Kiobel v. Royal Dutch Petroleum. The Supreme Court will rule on two significant issues related to the Alien Tort Statute: (1) the scope of corporate liability under the statute; and (2) the territorial reach of the statue.

First, the Supreme Court will decide whether corporations can themselves be sued under the Alien Tort Statute. In Kiobel, Nigerians brought suit against oil companies for allegedly supporting human rights abuses taking place during the mid-1990s in Nigeria. The Second Circuit dismissed the lawsuit because it found there was no international customary norm related to corporate liability. While corporations can be sued under domestic law, there is no clear-cut rule in international law for such a proposition. “Because corporate liability is not recognized as a specific, universal, and obligatory norm it is not a rule of customary international law that we may apply under the [Alien Tort Statute].” 621 F.3d 111, 145.

Second, the Supreme Court has asked for additional briefing on the substantive reach of the Alien Tort Statute. Specifically, the Supreme Court has asked the parties to brief when a court may hear claims for “violations of the law of nations occurring within the territory of a sovereign other than the United States.” In other words, at issue is whether violations of law taking place outside of US jurisdiction can even be heard at all.

While it is impossible to know in advance how the Supreme Court will rule on these issues, the fact that these issues are up for grabs is concerning. The reach of the Alien Tort Statute outside of US jurisdiction, for example, is an issue that the Supreme Court specifically requested the parties brief (it was not part of the original issues before the Court).

Should the Supreme Court decide that corporations cannot be sued under the Alien Tort Statute and that courts cannot hear cases involving overseas violations of law, a case like Doe v. Unocal could never happen again, and the reach of US human rights law becomes significantly reduced.

Court dismisses lawsuit against torture memo author John Yoo

Constitutional Law, International Law , , , , ,

The United States Court of Appeals for the Ninth Circuit today dismissed a lawsuit by Jose Padilla against John Yoo, the lawyer who penned the “torture memos” during the George W. Bush presidency.

The torture memos were memoranda of law which concluded that torture only encompassed acts that led to “death, organ failure, or serious impairment of body functions.”

Under this definition, things like water-boarding -  widely considered to be a type of torture - would be permissible so long as it did not lead to death, organ failure, or serious impairment of body functions.

The plaintiff bringing suit, Jose Padilla, was an American citizen detained in May 2002 under the authority of President George W. Bush and declared an “enemy combatant.”

Padilla was then held in a military brig from June 2002 until January 2006, when he was transferred to a federal detention center to stand trial for unrelated charges of conspiring to commit murder overseas. A jury found Padilla guilty of those charges in August 2007.

In January 2008, Padilla and his mother brought suit in federal court against John Yoo. They alleged that while in custody, Padilla was subjected to alleged abuses that mirrored those committed at Guantanamo Bay, including extreme isolation; interrogation under threat of torture, deportation and even death; prolonged sleep adjustment and sensory deprivation; exposure to extreme temperatures and noxious odors; denial of access to necessary medical and psychiatric care; substantial interference with his ability to practice his religion; and incommunicado detention for almost two years, without access to family, counsel or the court.

The lawsuit asked the court to declare that Padilla’s treatment violated the Constitution; and nominal damages of 1 dollar.

The federal trial court had permitted the lawsuit to proceed. Yoo appealed to the Ninth Circuit.

In reviewing the case, the Ninth Circuit wrote (without deciding) that the treatment against Padilla amounted to torture. But in the court’s view, the critical question was whether the treatment against Padilla was considered torture in 2001-2003.

The distinction was important to the Ninth Circuit, because under civil rights law, a government official can only be held liable for activities they know to be wrong at the time they commit them.

The Ninth Circuit concluded that there was no consensus in 2001-2003 about what qualified as torture, but rather “considerable debate, both in and out of government, over the definition of torture as applied to specific interrogation techniques.”

Because there was a lack of clarity at the time as to what counted as torture, Yoo could not be sued under civil rights law for the positions advocated in the torture memos.

The irony, of course, is that it was Yoo, through the torture memos, who was the main force generating the “considerable debate” as to what counted as torture. Had Yoo not been so strenuous (or successful) in his advocacy for torture, he may have been found liable under civil rights law.

One can’t help but be reminded of the “Big Lie” – if you’re going to lie, you need to make up lies that are so colossal, so far-fetched, that no reasonable person would think they could be fabricated. Who knew that it was permissible for the President to authorize torture!

Yoo was not at risk of any real liability here (other than the nominal 1 dollar he stood to lose). What Padilla really wanted was just a statement by a court, somewhere, that the treatment he received for over four years was wrong, and that someone should be held accountable.

Common sense easily identifies the torture memos as a giant step backwards for both civilized human conduct and the progressive force of the rule of law. And while common sense is a litigator’s main weapon in arguing to a jury, it can be painfully ineffective as precedent before a panel of judges.

John Yoo has been amazingly capable in avoiding any type of sanction for his advocacy of torture during the Bush years. On July 29, 2009, the Justice Department’s Office of Professional Responsibility concluded that John Yoo “knowingly failed to provide a thorough, objective and candid interpretation of the law . . . Yoo’s legal analyses justified acts of outright torture under certain circumstances.” Accordingly, Yoo committed “intentional professional misconduct.” (p. 251.) The memo indicated its intention to refer Yoo to state bar disciplinary procedures for further action.

In 2010, the Office of the Attorney General (through Deputy Attorney General David Margolis) countermanded these findings and belayed Yoo’s referral for disciplinary action. While Yoo’s errors were “more than minor” and professional misconduct a “close question,” Margolis concluded that “Yoo’s loyalty to his own ideology and convictions clouded his view of his obligation to his client and led him to author opinions that reflected his own extreme, albeit sincerely held, views of executive power.” While the professional bars of District of Columbia or Pennsylvania were free to take up the matter themselves, Margolis concluded that the Department of Justice would not make a referral.

Where is John Yoo today? John Yoo is a professor at Berkeley Law.

Is war against the law?

International Law , , , , , ,

Is war against the law?

On its face, the question seems almost preposterous.

The United States has been in at least two wars in the last 11 years, and several other military actions.

But the answer under international law is surprising.

A good argument could be made that war — or at least aggressive, unjustified war — is actually illegal.

Of particular relevance is an obscure treaty from the 1920s known as the Kellogg-Briand Pact.

The Kellogg-Briand Pact, also known as the “General Treaty for the Renunciation of War,” was an international treaty signed and ratified by almost every major nation, including the United States.

The terms of the treaty are plain. Article I of the treaty obligates every contracting party to renounce war as an instrument of national policy:

ARTICLE I

The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

Article II of the treaty obligates all parties to settle their disputes by “pacific means”:

ARTICLE II

The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

As of January 1, 2011, the United States still lists the Kellogg-Briand pact as a “treaty in force.” Under the United States Constitution, international treaties are the “supreme law of the land.” (Art. 6 cl. 2.)

The Kellogg-Briand Pact has been modified slightly by the United Nations Charter, which permits countries to use force in self-defense and where otherwise authorized by the United Nations Security Council.

Nonetheless, under theories of international law, signatories of the Kellogg-Briand pact – including the United States – risk liability should they go to war for improper reasons.

Indeed, the Nazi war crimes tribunal at Nuremberg described aggressive war as “the supreme international crime” under international law. Nazi leaders like Hermann Goering were sentenced to death for planning, initiating and waging wars of aggression and other crimes against peace.

The Humanitarian License

Intellectual Property, International Law , ,

What is the right balance between intellectual property rights and the spread of technology?

Should people in poor countries be deprived of a life-saving or humanitarian technology simply because they can’t afford to license the rights at market price?

(Picture courtesy of Tomas Castelazo)

There is no easy (or right) answer to this question — only policy judgements that reflect various approaches to IP rights.

However, no one would deny the right of two parties to agree by contract to share technologies on a humanitarian basis:  or what the Natural Innovation Foundation and Comar Law call The Humanitarian License (click here for the license).

The Humanitarian License permits companies to share technologies with poor or developing countries while retaining their IP rights at home.  Should markets mature enough to permit sale of the technology at market price, the license can be terminated.

For more information, see the Natural Innovation Foundation website.

Are Americans entitled to economic and social rights?

International Law , , , , ,

Most Americans are familiar with their political rights — their rights to free speech, freedom of the press, assembly, a fair trial and other types of due process.

But are Americans entitled to other sets of rights?

How about a right to work?

Or a right to health care, or to education, or to an adequate standard of living?

Under international human rights law, the answer is a resounding yes.  And the basis of these rights is the International Covenant on Economic, Social and Cultural Rights (“ICESCR”).

The ICESCR has its genesis with the founding of the United Nations.  When delegates from about 50 countries met at the end of World War II to discuss the post-war order, they agreed to produce a set of universal rights that all countries would honor.  This, in turn, led to the Universal Declaration of Human Rights and two human rights treaties:  The International Covenant on Civil and Political Rights (“ICCPR”) and the ICESCR.

The ICCPR (ratified by 167 countries, including the United States), obligates countries to provide the types of political rights that Americans would consider uncontroversial — things like due process and protection of individual liberties.

The ICESCR, however, focuses on rights related to quality of life and social security.

Just as a few examples:

– Article 6 requires countries to recognize a “right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

– Article 7 requires that countries enforce labor rules that provide for a living wage (specifically wages that provide a “decent living”), “safe and healthy working conditions,” “equal opportunity” in employment, and “rest, leisure and reasonable limitation of working hours.”

– Article 12 requires countries to “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

– Article 13 requires, among other things, that countries make higher education “equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.”

As part of the human rights legacy of World War II, the formulation of economic and social rights are a product of the same push towards democracy and openness that characterized America’s rationale for participating and winning the war.

The principles of ICESCR follow directly from Franklin D. Roosevelt’s “freedom from want”:  a promise that all people deserved the “economic understandings which will secure to every nation a healthy peacetime life for its inhabitants—everywhere in the world.”

The division between political rights on the one hand and economic and social rights on the other is something of a false dichotomy.  Economic and social rights do not take away from political rights — they only add and expand to them.

Freedom of speech means nothing if you don’t have the education to speak your mind.

Freedom of the press means nothing if you don’t have the critical reasoning to engage in debate.

Maybe the answer to the current economic crisis is as simple as the phrase, “more freedom”: specifically, the freedom to live in a society in which basic physical and educational needs are provided.

Internet access — a civil right?

Constitutional Law, International Law , , ,

Are Americans entitled to internet access as a matter of constitutional right?

What was once a highly theoretical question becomes increasingly relevant in a world where the internet is a daily part of life.

With courts already grappling with how the Fourth Amendment applies to internet activity, it may not be too long before someone argues that internet access itself is a fundamental right guaranteed by America’s political system.

Already, courts have ruled that internet access is a right that cannot be arbitrarily denied by the government.

Much of this analysis has come from appellate courts reviewing internet bans imposed on sexual predators.  For example, in United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) the Third Circuit overturned a lifetime internet ban on a defendant with an “extensive criminal history,” which included a “strong thread of sexual offenses to minors and child pornography” in his criminal record.  Id. at 404.

Noting that a lifetime ban would be “unprecedented,” the Third Circuit further observed that internet bans are “draconian” because they hamper a “defendant’s employment opportunities upon release,” and limit “freedoms of speech and association.”  Id. at 408

While internet access may not be arbitrarily revoked, is access itself guaranteed?

One argument would be a simple “no”.  After all, the internet is nowhere mentioned in the Constitution.   And since the 1970s, federal courts have resisted recognizing new constitutional rights that are not explicitly spelled out by the text.

On the other hand, a reasonable argument could be made that the internet furthers key rights such as freedom of speech and expression, freedom of assembly, freedom of the press, and the right to petition the government — all protected freedoms under the First Amendment.

More so than television technology, the internet strikes at the heart of Americans’ everyday social interactions and the way they live their lives.

And as recent events in the Middle East appear to indicate, the internet has become a powerful tool in promoting democratic accountability.

State constitutions, as well may confer greater protections related to internet access than the federal Constitution.

In California, for example, people have free speech rights at private malls under the California Constitution that are not recognized under the federal First Amendment.  Fashion Valley Mall, LLC v. NLRB, 42 Cal. 4th 850 (2007).   It is conceivable that California, or another state, could recognize a broad right to internet access under its own state constitution.

Internationally, Finland has already declared internet access — specifically broadband access — a guaranteed legal right.

Estonia, France, Greece, Spain and Costa Rica appear to be other countries that have guaranteed internet access in some shape or form.

Indeed, future American administrations could make a global internet treaty a centerpiece of a human rights agenda founded on internet access, government accountability and transparency, and broad-based protections related to freedom of expression and conscience.

Is it legal to mine the moon?

International Law , , ,

It was only a matter of time: with resources on Earth mostly claimed, and with technological costs constantly on the decline, private entrepreneurs are looking to harvest resources in outer space (here is just one example).

But is private enterprise legal outside of Earth’s orbit?  Can companies engage in the buying and selling of outer space resources?

Currently, the answer is probably no.

The law of outer space is governed by a series of treaties, the most important (and oldest) being the 1967 Outer Space Treaty.

Article I of the Outer Space Treaty declares outer space to be the “province of mankind”.

Article II declares, “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

Article IX requires countries to conduct their exploration of outer space (including the Moon) “so as to avoid their harmful contamination”.

Under the language of this treaty, it would be difficult to argue that a private company had authority to conduct the same type of resource exploitation that gets done here on Earth.

“Province of mankind” and rejection of “national appropriation” suggests an outer space commons; and avoiding “harmful contamination” suggests a prohibition on the types of practices that led to the Gulf Oil Spill and the Fukushima Crisis.

Ninety-eight countries, including the United States, have ratified the Outer Space Treaty.  Under international law, ratification serves as a promise to other countries that the terms of the treaty will be honored.  And under national law, treaties are the “Supreme Law of the land.”

A much stronger treaty, the 1979 “Moon Treaty,” explicitly prohibits private property on the Moon.

Article 11 declares that the Moon and its natural resources are “the common heritage of mankind,” and that no part of the surface or subsurface of the moon shall “become the property of any State, international intergovernmental or non-governmental organization, national organization or non-governmental entity or of any natural person.”  The treaty requires an international regime for any exploitation of resources.

The Moon Treaty, however, has not been ratified by any Moon-faring nation, and likely lacks weight in international law.

The thing about any treaty, though, is that it is only as good as the promise to honor it.

Five hundred years ago, after Columbus landed in the West Indies, the Spanish didn’t think twice about sending more people over to see what they could find and conquer.

To avoid disputes, they signed the Treaty of Tordesillas and split up the world with the Portuguese, who went East instead.

The Treaty of Tordesillas has little weight today.

Should the US (or Russia, or China, or India) discover some dynamite resource on the Moon, international politics will have a much greater influence on how resources get treated then current legal language.

Today, there are a variety of countries with the technology and military might to challenge US space dominance.

In such a world, sharing may be the preferred outcome than conflict.

And of course, there is always the idea of leaving outer space alone until countries can figure out how to clean up some of the giant messes here on Earth.

Pushing the limits of technology can create grave problems, as people in the Gulf and Japan are realizing.

And technological feasibility doesn’t automatically make something a good idea.