• Selected
• Entire List

Abstract:
This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general responsible for attacking Pearl Harbor, and that this sowed seeds of concern about another targeted state killing, capital punishment. Also illuminating are memoranda from Stevens' clerkship with Justice Wiley Rutledge. Parts of Stevens' drafts found their way into two Rutledge opinions whose themes remain relevant: one decried executive detention of German nationals; the other, denial of meaningful review to an Italian teenager who had pleaded guilty to murder in a hearing at which the arresting officer acted as interpreter. Fully six years before the decision in Brown v. Board of Education, clerk Stevens advised that segregation be ruled unconstitutional.

Supreme Court, international law, constitutional law, criminal law, legal history, federal courts

Abstract:
This article examines - in light of what here is called an impartiality deficit critique - the tribunal that is now scheduled to begin trial of deposed Iraqi President Saddam Hussein and his associates on October 19, 2005. The term is derived from democracy deficit, the label by which multilateral institutions are faulted for lack of accountability mechanisms common in modern constitutional states. Critics have extended that latter notion to a centerpiece of the international criminal justice project, the permanent International Criminal Court that began operations in 2002. In contrast, the impartiality deficit critique assumes the propriety of establishing international criminal justice mechanisms. In the hope of improving the quality of those mechanisms, it exposes instances in which defendants were denied any component of this injunction of the International Covenant on Civil and Political Rights: In the determination of any criminal charge against him, ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. Within this analysis, one might examine several tribunals to see whether they meet a single fairness criterion, such as the duty of judges to act without bias; alternatively, one might assess a single tribunal in light of several criteria. This article opts for the latter course, applying the impartiality deficit critique to the Iraqi High Criminal Court, which stands poised to try persons charged with responsibility for torture, killings, and other crimes of repression over a thirty-five-year period. The article first lays out key concerns of the impartiality deficit critique and then evaluates the Court in light of them. It shows that initial implementation occurred in a manner so devoid of basic guarantees that there seemed little likelihood that the accused would receive either the appearance or reality of a fair trial.

Saddam Hussein, Iraqi, International Law, International Human Rights, International Tribunals, Due Process, Criminal Justice

Abstract:
This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map was replete with national and international norms and doctrines, enforcement regimes, and compliance mechanisms concerning detention and interrogation. For more than two years thereafter the United States nonetheless maintained spaces within which, it said, executive fiat controlled. Initial judicial hesitancy to intervene was due in part to legal tradition: on account of the prevailing construct of relevant legal disciplines such as conflicts of law and public international law, actors did not see - did not even see a need to see - the myriad laws that ought to have cabined their behavior. The Supreme Court's 2004 detention trilogy signaled a willingness to interpose judicial supervision over policy and practice when appropriate. But that message came too late for persons assigned to hold and interrogate persons labeled "the enemy," under conditions that made abuse possible, even, perhaps, inevitable.

humanitarian law, human rights law, conflicts of law, international law, federal courts, military law

Abstract:
Revival in the 1990s of the international criminal justice project that had been launched decades earlier at Nuremberg and Tokyo has had consequences. As is often noted, many results have been salutary; among them, increased accountability for wrongdoing and a modicum of redress for victims. There has been, however, another, less salutary effect: tribunals' construction and operation sometimes bore the marks of compulsion to convict and inattention to the rights of the accused. This article focuses on how that tendency - called here "impartiality deficit" - has affected international judging. After addressing the phenomenon at the global level, it looks more specifically at evidence of such a deficit in the operations of one hybrid tribunal, the Special Court for Sierra Leone.

international law, human rights, international criminal law, Sierra Leone, criminal procedure, judicial independence

Abstract:
This article addresses not only offshore detainees at Guantánamo and elsewhere, but also the two Americans and one Qatari held in the United States as enemy combatants. It focuses on the critical issues in U.S. litigation - extraterritoriality and deference - yet also examines the scope of detention and the propriety of proposed special tribunals. After demonstrating that in the wake of September 11, 2001, no U.S. constitutional precedent governed these issues, the article then looks to norms drawn from international humanitarian and human rights law to aid decision. The Supreme Court increasingly consults such external norms as persuasive authority; most recently, it found support in a European human rights judgment for its conclusion in Lawrence v. Texas that the Constitution forbids criminal punishment of homosexual conduct. This article likewise considers the constitutionality of governmental policy in light of external norms. It thus concludes: first, that U.S. courts have jurisdiction to scrutinize extraterritorial detention; second, that the doctrine of executive deference must yield to judicial duty to protect individual rights; and finally, that alleged conditions of detention and interrogation, as well as the proposal for trial before special tribunals, may violate core guarantees of the U.S. Constitution.

international law, federal courts, human rights law, humanitarian law

Abstract:
In the last years of Chief Justice Rehnquist's tenure, the Supreme Court held that due process bars criminal prosecution of same-sex intimacy and that it is cruel and unusual to execute mentally retarded persons or juveniles. Each of the later decisions not only overruled precedents set earlier in Rehnquist's tenure, but also consulted international law as an aid to construing the U.S. Constitution. Analyzing that phenomenon, the article first discusses the underlying cases, then traces the role that international law played in Atkins, Lawrence, and Simmons. It next examines backlash to consultation, and demonstrates that critics tended to overlook the Court's longstanding tradition of consulting external norms. The article gives the interpretive practice qualified approval. Thus it calls upon Justices both to articulate when it is appropriate to look to external sources and to set forth a framework for consultation. At a minimum, foreign jurisprudence ought to shed the light of experience on issues like those in the case before the Court; it must arise out of a legal culture that shares with the United States a commitment to fundamental rights; and the way in which the jurisprudence influenced the Court must be set forth in a reasoned explanation. Whether the Court would pursue such a path remained uncertain, however, as the era of the new Chief Justice began.

International, Transnational & Comparative Criminal Law; international law, comparative law, criminal law, public international law, constitutional law, federal courts

Abstract:
This article explores the abiding question of how to construe the state of mind set forth in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; that is "the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." The question promises to challenge the International Criminal Court just as it has judges of the ad hoc tribunals established in the 1990s, the International Criminal Tribunals for Rwanda and for the former Yugoslavia. First the article traces the development of the group mentality element from its early and broad outline to the narrow formula in the Convention. It then looks at how the ad hoc tribunals have endeavored to construe the 1948 definition in light of much more recent events. In particular, the article contrasts the seriatim approach employed in most opinions with the ensemble approach adopted by the ICTY in Prosecutor v. Krstic. Analysis of this divide begins by posing a question sometimes overlooked in debates about the definition of genocide: What does it matter? Conduct that satisfies the actus reus component of genocide - murder, sexual assault, starvation - is without doubt reprehensible. Does naming an act "genocide" bring added significance? This article answers that question in the affirmative. Law operates as a means for articulation and nourishment of societal values. This expressive function has special force in international criminal law, only now entering an era in which ongoing international criminal tribunals reinforce pronouncements of norm, such as the proscription against genocide in the 1948 Convention. This offense - commission of a heinous act with the desire to eliminate a human group - is deemed the most serious of crimes, in legal writings no less than in popular media. That social meaning of genocide, this article argues, imposes constraints. Tribunals must act in a manner that recognizes and nurtures the status of the norm against genocide. Extending protection to too many groups could upset the singular status of the proscription against genocide; denying it to deserving groups could undermine the tribunal's authority. This article recommends answering the protected group question according to a synthesis of seriatim and ensemble construction. Key to the inquiry is the particular context in which an atrocity occurred. Resort to appropriate components of each method of construction will permit a tribunal to identify a group within its own social context, and thus to determine whether the particular group falls within the aegis of the Convention definition. This reasoned inquiry into individual culpability both strengthens the authority of the tribunal and assures that only those perpetrators whom society consider the very worst will receive the indelible brand of génocidaire.

genocide, international law, international criminal law, Raphael Lemkin, International Criminal Court, International Criminal Tribunal for Rwanda, International Criminal Tribunal for the Former Yugoslavia, Convention Against Genocide, expressivism, deterrence, retribution, criminal justice

Abstract:
As the United States moves toward the inauguration in January 2009 of a new President, greater attention is paid to what the country might do to restore and reinforce its traditional role as a leader in the promotion of human rights. This essay warns against any assumption that innovation alone will assure greater enforcement of rights; its points of reference are not only the current administration, but also one long past, that of President John F. Kennedy. Rather than jump to embrace new, global concepts like responsibility to protect, therefore, it argues for careful pursuit of local change. It then turns analysis on the locality of the United States, calling for genuine efforts to address rights issues already acute at home, for example: violence, disparities in education, economic disadvantages, the crisis in health and health care. Mid-20th century U.S. human rights discourse - the American Law Institute's Statement of Essential Human Rights and President Franklin D. Roosevelt's Four Freedoms speech - are cited as foundations for this domestic emphasis. The sources likewise invite consideration of means for promoting rights other than judicial enforcement. The essay ends with a hope that should the United States alleviate some of these problems, and so protect the liberty and security of persons within its jurisdiction, it would eschew American exceptionalist boasts and instead let the power of its deeds bespeak its restored role as a promoter of human rights.

human rights, health, education, poverty, Four Freedoms, responsibility to protect, war on terror

Abstract:
Throughout the world, a trend toward a shared - a constitutional - criminal procedure may be detected. It is evident in common-law, civil-law, and mixed systems: individual states like China adopt laws promising once-alien concepts like a presumption of innocence, even as supranational bodies like the International Tribunal for the former Yugoslavia debate how to adapt certain norms to a hybrid structure. Some have suggested that such developments may herald a harmonic convergence of criminal procedure rules.

This Article examines the likelihood of such a convergence. It establishes as a keynote around which harmony may develop the model of constitutional criminal procedure. Constructed in the United States in the first part of the twentieth century, the model embodies the belief that the state must treat accused individuals equally, with due respect for their liberty; that is, with fundamental fairness. The Article then traces movements toward convergence: changes after the French Revolution; the Nuernberg trials and the rise of the individual in international law; increased law-enforcement cooperation to fight global crime; ongoing European integration; and the development of ad hoc international criminal tribunals and proposals for a permanent international criminal court. It then sounds notes of discord, with attention to China and the Islamic states, and France and the United States. The Article demonstrates that movement toward convergence will continue. States that share a fundamental rights tradition and a desire for economic and political integration may approach harmony. But some states will resist pressures to conform - even if the international norm corresponds with their own cultural tradition - out of perceived threats to their security or position within the world community.

criminal procedure, international law, globalization, European Court of Human Rights

Abstract:
This Article endeavors to paint a fuller picture of previous practice and present options than is often present in debates about the United States' antiterrorism measures. It begins by describing practices in place before the campaign launched after September 11, 2001. The Article focuses on punishment, the first prong of the policy long used to combat threats against the United States. Ordinary civilian and military courts stood ready to punish persons found guilty at public trials that adhered to fairness standards, and national security interests not infrequently were advanced through such courts. That is not to say that courts were the government's only option. When it deemed judicial mechanisms unable to protect state security - on account, for example, of its unwillingness to disclose secrets of state - the Executive resorted to surveillance, the second prong of established policy. As for present options, the Article shows the error in the premise that the attacks of September 11 exposed elemental defects in this policy - called here, with a nod to Foucault, "punish or surveil." The government's post-September 11 third-prong option, moreover, is no improvement. The Article demonstrates that reinforcement of the established, two-pronged policy is the present option that promises best to protect both individual and national security.

terrorism, criminal justice, surveillance, national security, courts-martial, military justice, federal courts, law of war, military commissions

Abstract:
This essay asks what gives the executive the right - that is, either a genuine legal justification or, at the least, an accepted basis of extralegal legitimacy - to detain presumed terrorists for the purposes of interrogation. In search of an answer it lays bare the fact and consequences of an executive policy aimed in large part at extracting information against a person's will with little regard for harm that the policy might work upon the person or, for that matter, upon the state. The essay first establishes that to invade the essence of the individual in service of an asserted interest of state departs radically from the humanist principles that underlie modern law. The essay then demonstrates that the overt invasion of the human, as individual and as collectivity, also deviates from realist theories that underlie modern politics. By way of example, the essay looks to an early source of such theories, Niccolò Machiavelli's The Prince. In so doing, the essay exposes the inability of the U.S. executive to find in either humanist or realist theories of statecraft any cloak of legitimacy for its interrogation paradigm.

international law, legal theory, political theory, realism, humanism, detention, executive power, humanitarian law, human rights law, interrogation, national security, criminal law

Abstract:
Landmark judgements in 2003 prompted comments that the U.S. Supreme Court had abandoned a tradition of insularity in favour of allowing external norms to inform its internal constitutional deliberations. Viewing these judgements against the backdrop of the Court's prior jurisprudence, this essay finds a willingness to look at foreign law, as well as an unexplained selectivity with regard to the circumstances in which this is deemed to be appropriate. It identifies two threshold criteria for consultation: the presence of similar experiences; and the resolution of questions in accordance with norms derived from a shared commitment to fundamental rights. Even when both criteria are met, the Court is likely to rely only on those external norms that are imbued with internal resonance; that is, on foreign law whose application serves an American vision of what is just.

International Law, Constitutional Law, Foreign Law, Supreme Court

Abstract:
In Jaffee v. United States, 116 S. Ct. 1923 (1996), the U.S. Supreme Court recognized a testimonial privilege protecting the patient-psychotherapist relationship. Its decision is based on Rule 501 of the Federal Rules of Evidence, which permits courts to decide novel questions of privilege in the light of reason and experience. The Court held that this rule authorized not only recognition of a new privilege, but also a privilege of a broad scope, extending to relationships between patients and licensed clinical social workers. Its decision came as a mild surprise, given a widely shared assumption that Rule 501 creates a strong presumption against establishment of new privileges.

This article criticizes the Court's reliance on an instrumental rationale, one that sees privileges as a means to the end of encourging individuals to seek needed psychotherapeutic assistance. After examining the etymology of the statutory terms reason and experience, the article argues that the Court should have explored a humanistic, privacy-focused rationale for its decision. Still, the article concludes, the Court arrived at the correct result, and in so doing, offered important insight into the meaning of those key statutory terms.

evidence, privilege, psychotherapy