* Forthcoming scholarship
St. Louis University Law Journal (Vol. 53, 2008)
Stephen I. Vladeck
American University Washington College of Law
In An Originalism for Foreign Affairs?, Professor Ingrid Wuerth argues that originalism, under a number of different conceptualizations, is an awkward fit in the field of foreign affairs. In one sense, as Professor Wuerth suggests, originalism fails to answer many of the central questions of foreign affairs scholarship. In another sense, certain foreign affairs questions may, in her words, undermine the positive case for originalism. Either way, Professor Wuerth concludes, originalists should pay more attention to foreign affairs, and foreign affairs scholars should pay more attention to the competing methodologies of contemporary constitutional interpretation.
Rather than take up Professor Wuerth’s thesis on its terms, in this short response, I want to focus on foreign affairs originalism and the courts, notwithstanding Professor Wuerth’s quite accurate observation that a good deal of constitutional interpretation vis-a-vis foreign affairs takes place outside the courtroom. The question I want to ask (and hopefully answer) is whether, in those few instances where the courts do get involved in resolving the types of disputes here at issue, Professor Wuerth’s careful analysis might actually make a difference. Put another way, is there a there, there? I suspect that one could easily take from Professor Wuerth’s article the sentiment that originalism is, ultimately, of exceedingly little help to contemporary courts in resolving serious and difficult foreign affairs questions, especially in the context of conflicts between the legislative and executive branches.
But my thesis is that the real culprit behind this difficulty is neither originalism as an interpretive method nor foreign affairs as a body of constitutional law. Rather, the reason why the case for foreign affairs originalism may ultimately be so unconvincing is the movement toward functionalism as a means of resolving separation-of-powers conflicts, particularly in cases implicating foreign affairs. Thus, whatever may be said about the suitability or theoretical utility of originalism generally, or in the field of foreign affairs specifically, it is hard to square any case for foreign affairs originalism with the methodological framework at the heart of the Supreme Court’s contemporary separation-of-powers jurisprudence.
SEAN D. MURPHY, George Washington University – Law School
To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the “hot pursuit” of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably Pakistan has consented to at least some of these types of cross-border operations, but that consent is poorly documented, suffers from the conflicting and diffuse sources of authority within the Pakistani government, and ultimately may not endure given the vicissitudes of Pakistani domestic politics. As such, though consent is a powerful and useful basis for supporting the legality of U.S. cross-border operations, other justifications should be considered as well.
Assuming Pakistani consent is lacking, other justifications for U.S. cross-border operations must be considered. The U.N. Security Council has on several occasions addressed the legality of foreign forces in Afghanistan. Yet the Security Council’s Chapter VII resolutions are best seen as either authorizing the presence of a multinational force designed to stabilize Afghanistan (without having as its mission counter-terrorism operations, let alone operations outside Afghanistan), or simply recognizing the inherent right of self-defense of the United States and its allies. The inherent right of self-defense (individual and collective) does justify U.S. cross-border operations that respond to raids by militants from Pakistan into Afghanistan, so long as the U.S. operations remain necessary and proportionate to the threat of those raids, and so long as the Afghan government consents to the presence of U.S. forces. Such self-defense would also support unilateral uses of U.S. force against Al Qaeda in Pakistan, either in the form of covert operations by special forces units or the launching of Predators from Afghanistan to strike at targets in Pakistan, so long as it can be shown that those Al Qaeda targets are ones that are supporting the cross-border raids into Pakistan, and so long as Pakistan is unwilling or unable to prevent Al Qaeda’s support for those raids. A broader right of self-defense against Al Qaeda targets in Pakistan based on the attacks of 9/11, however, is far more problematic, since the requirements of necessity and proportionality likely preclude unilateral uses of force against a third state that was not implicated in those attacks.
Human Rights Advocacy Stories
New York University School of Law
Among the most notorious anti-terror techniques used by the U.S. government in the “War on Terror” are two shrouded in secrecy:
extraordinary rendition and enforced disappearances. Extraordinary rendition entails the transfer of an individual for interrogation in a country known for the use of torture. Enforced disappearances occur when individuals are deprived of their liberty by state agents, who then fail to provide information about their fate or whereabouts, placing them outside the protection of the law. In the aftermath of 9/11, reports began to surface that terrorism suspects were being sent for interrogation by the United States to countries such as Egypt, Syria, and Morocco, where torture is systematic. Slowly, information also emerged concerning the American use of secret “black sites” to hold suspected al-Qaeda leaders and their allies. While never denying that these practices were being used, U.S. government officials repeatedly offered a single justification for departing from both human rights protections and prisoner of war rules when apprehending such individuals: the United States was involved in a new, unprecedented type of war. The case of Khaled El-Masri brings these issues before a U.S court. In an apparent case of mistaken identity, a German man of Lebanese descent was abducted while on vacation in Macedonia, transferred to a secret U.S.-controlled prison in Afghanistan, and subjected to cruel, inhuman and degrading treatment over the course of five months. Released when then-National Security Advisor Condoleezza Rice discovered that he was being held by mistake, a stunned El-Masri made his way back to Germany. In December 2005, the ACLU filed suit on his behalf, alleging violations of due process under the Fifth Amendment of the U.S. Constitution, and human rights claims based on numerous human rights and humanitarian law treaties which are cognizable under the Alien Tort Statute. This Chapter, which appears in Human Rights Advocacy Stories, tells the story of the El-Masri case from its inception to dismissal, and from U.S. court to the Inter-American Commission on Human Rights.
Human Rights Advocacy Stories
Deena R. Hurwitz (University of Virginia – Law)
The duty of states to prosecute serious international crimes, that is, genocide, war crimes and crimes against humanity, is generally considered a matter of customary international law and jus cogens. In recent years, two trends have developed in tandem that aim to fulfill this duty: the cooperative creation of international courts and tribunals to directly hold individuals to account for international crimes, and the implementation and enforcement by states of statutes criminalizing serious crimes of international law through domestic criminal processes. Many of these domestic statutes are based on the principle of universal jurisdiction, which holds that any state may try an individual for a small set of particularly heinous international crimes. This principle has been broadly championed by human rights advocates and scholars but resisted by some states. The Spanish indictment of General Pinochet, and the Pinochet litigation in the U.K. House of Lords highlighted the debates over this principle and its crucial importance to the human rights movement. Today, domestic criminal statutes in many countries provide a jurisdictional basis for the prosecution of serious international crimes in their courts.
Conscious of its own history in Africa, Belgium became one of the first states to enact a universal jurisdiction statute for grave crimes against international law in 1993. The law was used to prosecute abuses in Rwanda and the Democratic Republic of the Congo before it was applied in 2001 against a more politically controversial incident: Israel’s role in the 1982 massacres of Palestinians in the Beirut refugee camps of Sabra and Shatila. The 2001 complaint alleged war crimes, crimes against humanity, and command responsibility by Ariel Sharon and others. Two years of intense legal and political maneuvers ensued, including a series of Belgian legal and legislative “clarifications” concerning the scope of the law. In addition, the case was impacted by the assassination of Elias Hobeika, a Phalangist leader involved in the massacres as he prepared to meet with Belgian parliamentarians about the Israeli role. Ultimately, U.S. Defense Secretary Donald Rumsfeld threatened that Belgium could lose its status as host to NATO’s headquarters if it did not rescind the law. Although the Belgian Supreme Court upheld the jurisdictional basis of the statute in February 2003, the Belgian parliament responded shortly thereafter by passing a new law, effectively eliminating the universal jurisdiction provision by requiring that victims or alleged perpetrators have some nexus with Belgium. The politics of the Sharon case notwithstanding, the fate of the statute was surely impacted by several even more contentious complaints filed against former President Bush and Colin Powell for crimes arising from the first Gulf War, and against U.S. General Tommy Franks for war crimes allegedly committed in Iraq in March/April 2003.
The dilemma of universal jurisdiction lies in the tension between law and politics in the pursuit of international criminal justice. Insofar as international criminal law depends on the political will of nation-states, for example in bringing prosecutions, extradition and other matters of trans-border cooperation, politics are inevitable. Given the nature of the litigants, the case of Ariel Sharon et al in Belgium provides an interesting opportunity to examine how law and politics may become inextricably intertwined in human rights cases.
May a new President review the executive privilege assertions of a previous President and, if appropriate, overturn them? This question has received little scholarly attention but has become important as a new President Barack Obama is poised to take over the White House after eight years of aggressive assertions of executive privilege by President George W. Bush. I argue that a new President may review previous assertions of executive privilege and should disclose the previously withheld information if to do so would be in the public interest. This follows because executive privilege is not personal to any individual President but rather may only be asserted in the public interest. In addition, executive privilege arises from a President’s Article II powers; when a new President arrives, she enjoys plenary Article II powers, including the right to assert or waive executive privilege. I conclude that a new President not only can but should review previous assertions of executive privilege vigorously as a check that supplements the checks and balances of Congress, especially since as a practical matter Congress cannot peer behind the curtain to determine whether a particular President has abused the privilege to hide evidence of wrongdoing in his administration.