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a citizen’s journal by Thomas Nephew

The Great Betrayal, judicial activism, and a living Constitution

Posted by Thomas Nephew on 2nd October 2010

September 17 was Constitution Day, always a good opportunity to reflect on that document and what it means to us.  Unfortunately, I missed that opportunity.  But of course every day is Constitution Day!  So I’ll go ahead and write down a few things I’ve been thinking and reading about lately on that subject and its intersection with another that has been occupying me lately: post Civil War American history.

In a note he published on Facebook, Patrick Bruckart wrote,

…the Bill of Rights was intended to restrain the federal government’s authority and provide citizens a means of redressing grievances against it. The BOR did not originally apply to the states. The Fourth Amendment, for example, was later applied to the states via the Fourteenth Amendment and subsequent court decisions. The next time we are inclined to complain about “judicial activism,” we should ask ourselves whether it would be acceptable for state or local law enforcement officials to search our homes (or property) without having first obtained a warrant based on probable cause. And that’s just one example.
(links added)

Even in colonial times, some states provided their own constitutional guarantees — that is, they acknowledged their own limitations — regulating searches and seizures.  But it was optional — especially with respect to the lower and disenfranchised members of society.


The Fourteenth Amendment
1. All persons born or naturalized
in the United States, and subject to
the jurisdiction thereof, are citizens
of the United States and of the State
wherein they reside. No State shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States; nor
shall any State deprive any person
of life, liberty, or property, without
due process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws. […]
5. The Congress shall have power
to enforce, by appropriate
legislation, the provisions of this
article.

But the Fourteenth Amendment changed all that.  In particular, the Fourteenth Amendment — in both intent and language — clarified that rights guaranteed under the Constitution were a floor under state law, not merely interesting limitations on a far off federal government.  And both these rights and the promise of equal treatment under the law were guaranteed to everyone born in, naturalized to, or simply under the jurisdiction of the United States of America.

And Congress could see to it.  According to Akhil Reed Amar’s indispensable “America’s Constitution: A Biography,” the final enabling clause — “Congress shall have power to make all appropriate laws” furthering this aim — was selected to echo specific Supreme Court rulings deferring to “appropriate” Congressional legislation. Amar:

And — here is the key point –the American people ratified the Fourteenth Amendment, with evident understanding of its, and also the Thirteenth’s, language authorizing “appropriate” federal legislation.  Knowing full well that Congress believed that this language authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality — and having seen with their own eyes that Congress had already acted on a similar belief in connection with the Thirteenth Amendment — Americans said yes.  We do.

Or so they believed.

“A vain and idle enactment”
To return to Bruckart’s remarks, I think one point to remember about judicial activism is that sometimes it’s needed simply to undo prior such activism.

The main example, to me, is in how the Fourteenth Amendment was bled nearly dry shortly after its ratification by one regrettable Supreme Court ruling — In re Slaughter-House Cases (1873; text)  — and one manifestly unjust one, United States v. Cruikshank (1875; text), a ruling rivaled in infamy by Dred Scott, Korematsu and few others.

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Matthew 25:42

Posted by Thomas Nephew on 16th September 2010

Earlier this month, Scott Horton asked an interesting question: “When Is Offering a Drink of Water a Crime?” The answer, it would seem, is once Eric Holder’s Justice Department finds enough judges like Jay “Waterboard ‘Em” Bybee to help them out with that:

Last August, I reported on the case of Walt Stanton, a graduate student at Claremont Theology School who, with a group called “No More Deaths,” deposited bottles of water at points in the Buenos Aires National Wildlife Refuge, an 18,000-acre area on the Arizona-Mexico border. Stanton and his group have no particular position on the illegal immigration issue—they just think that the immigrants shouldn’t die from dehydration. The Justice Department, however, saw the offer of a drink of water as a criminal act, and brought charges. In the absence of any clear criminal statute that would cover the situation, the prosecutors argued that Stanton’s act of Christian charity was in fact “criminal littering.” Under heavy pressure from the feds and a federal magistrate who made his intention to convict plain, Stanton agreed to 300 hours of community service in lieu of a prosecution.

As it turns out, Stanton should have stood his ground. Some of Stanton’s colleagues pushed the case and appealed their conviction. Now the Court of Appeals has handed down its less-than-astonishing decision: leaving purified water in sealed containers for human consumption is not “littering.” The convictions were overturned, and the Justice Department was given a smackdown.

One judge on the panel saw things differently: Jay Bybee. He argued that the statute, which prohibits “littering, disposing, or dumping in any manner of garbage, refuse sewage, sludge, earth, rocks, or other debris,” was actually intended to criminalize Samaritans who offer a drink to illegal immigrants.

Well, so things didn’t pan out for the executive branch this time.  But they may just need to wait a while — because the percentage of Republican-appointed federal judges has actually been *increasing* during Rahm Emanuel’s tenure.  Again, Scott Horton:

Few things count more towards a president’s “legacy” than this, since judges have lifetime tenure. But, as the Associated Press shows in a study published this weekend, under the first two years of Barack Obama’s presidency, the G.O.P.’s already strong grip on the federal judiciary has actually tightened:

A determined Republican stall campaign in the Senate has sidetracked so many of the men and women nominated by President Barack Obama for judgeships that he has put fewer people on the bench than any president since Richard Nixon at a similar point in his first term 40 years ago. The delaying tactics have proved so successful, despite the Democrats’ substantial Senate majority, that fewer than half of Obama’s nominees have been confirmed and 102 out of 854 judgeships are vacant. Forty-seven of those vacancies have been labeled emergencies by the judiciary because of heavy caseloads.

With the Obama appointment process essentially stagnated, and the judges leaving the bench largely those who were appointed by Carter and Clinton, the G.O.P.-appointed percentage of the bench has actually risen.

This performance is inexplicable in light of the enormous Democratic majority in the Senate, which at times has hit the 60 votes needed to preclude procedural measures against nominees. It reflects a dramatic failure of management by senate Democratic leaders like Patrick Leahy and Harry Reid, but it also points to a White House that is simply oblivious to the nominations process. On this measure, Rahm Emanuel is the worst performing White House chief of staff in recent memory.

So maybe Emanuel, Holder, Obama et al — together with Republicans in Congress and the Jay Bybees of the judicial branch, of course — will soon be able once again to make helping people dying of thirst a crime again, and I guess that’s the way it should be.  Hard to square with this, though:

for I was hungry, and ye did not give me to eat; I was thirsty, and ye gave me no drink; I was a stranger, and ye took me not in; naked, and ye clothed me not; sick, and in prison, and ye visited me not.  Then shall they also answer, saying, Lord, when saw we thee hungry, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee? Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not unto one of these least, ye did it not unto me.

=====
CREDIT: Biblical reference via Facebook comment by Andy Famiglietti.
EDIT, 9/16: Verse number corrected.  Blush.

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Do-it-yourself torture accountability

Posted by Thomas Nephew on 19th March 2010

On Tuesday evening I listened to a panel sponsored by the Bill of Rights Defense Committee (BORDC) titled “Understanding U.S. Torture and Executive Accountability,” and hosted by the Institute for Policy Studies.


The panelists

Shahid Buttar, BORDC; Jesselyn Radack, former
Department of Justice ethics attorney; Matthew
Alexander, former U.S Army interrogator.
Originally uploaded by Thomas Nephew

I knew the panelists — Shahid Buttar, Matthew Alexander, and Jesselyn Radack — would be interesting, having read about them or read their own writing as I’ve followed these issues.  But what also interested me was one short sentence at the end of the e-mail:“The speakers will present concrete action opportunities to promote torture accountability, with a discussion to follow.”

Here is what they said.

“File bar complaints” – Jesselyn Radack
Jesselyn Radack, a former Department of Justice ethics attorney, blew the whistle on Department of Justice efforts to conceal her objections and counsel concerning the improper use of evidence gained in interrogations of “American Taliban” John Walker Lindh — and has paid for it with a long legal battle and placement on the no-fly list.*

Scott Horton’s recent Harper’s Magazine interview with her,  Justice’s Vendetta Against a Whistleblower: Six Questions for Jesselyn Radack, is a useful starting point for catching up with the story. As Radack points out there, her experience couldn’t be a starker contrast with that of Yoo and Bybee’s clean getaway from accountability for real wrongdoing:“I am now the only Justice Department attorney that OPR referred for bar disciplinary action stemming from advice I gave in a terrorism case–and my advice was to permit an American terrorism suspect to have counsel.”

Noting that “you don’t have to be a lawyer to file a bar complaint,” Ms. Radack hoped that would happen to John Yoo, Jay Bybee, and other lawyers implicated in authorizing torture. She clarified a question I had by saying you don’t have to live in the state where, say, John Yoo is admitted to the bar (Pennsylvania, as it happens), to lodge a complaint with that state bar association.

“Practice tolerance” – Matthew Alexander
Matthew Alexander, a former Army interrogator, has written a number of articles and editorials over the past few years rebutting claims that torture is necessary or effective.  One of the latest ones I’m aware of is a devastating review in Slate of former Bush staffer and current torture apologist Marc Thiessen’s ironically titled book “Courting Disaster.”  One of the first was a 2008 op-ed for the Washington Post, “I’m Still Tortured by What I Saw in Iraq.”**
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I for one welcome our new corporate masters

Posted by Thomas Nephew on 29th January 2010

Campaign web site here. We are the change we’ve been waiting for.

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On the irrelevance of “Balkinization” in particular and the legal profession in general

Posted by Thomas Nephew on 25th May 2009

Balkinization” is a blog developed by Yale law professor Jack Balkin that, during the Bush administration, became the go-to web site without equal for analysis of the constitutional and legal issues posed by that administration’s actions and lawlessness. It is the place I once used to visit within minutes of a speech like Obama’s last week.

By now I know not to bother; the site has become increasingly bogged down in arcana, minutiae, and fantasies ranging (of late) from Supreme Court rotation schemes to familiar hobbyhorses like a new Constitutional Convention to placing California in political receivership.  (This puzzling output is leavened, to be sure, with occasional promotions of various and sundry arcane and/or oddly overconfident books authored or edited by the blog’s contributors.) The one voice at the blog who has been carrying on in the “Torture Memos” tradition is Brian Tamanaha, but he can’t and shouldn’t have to carry this kind of burden by himself.

I’m nevertheless a bit shocked that none of the dozen or so “Balkinization” bloggers have even now said anything about Obama’s (or Cheney’s) speeches, days after a President and a former Vice President essentially agreed that (1) it would be unwise to investigate and prosecute known acts of torture committed by Americans and planned by high American officials, and (2) that Bush-era notions of military commissions and preventive detention would and should become the modus operandi of the United States.

While other factors have no doubt played a role in “Balkinization’s” shockingly rapid decline into irrelevance,* I have to wonder whether the elevation of former “Balkinization” co-blogger Marty Lederman to the post of Deputy Assistant Attorney General at the Office of Legal Counsel has had something to do with it as well.  Not to put too fine a point on it, have Balkin, Levinson, Griffin, Graber et al been co-opted by the appointment of their friend and colleague?

If so, I’d have to wonder why any of them got into this line of writing in the first place.  If there was ever a time when a well argued, well written blog post might actually make a difference, this would appear to be it — a generally liberalish president, one who allegedly welcomes debate, one who may even read blogs and use the words he finds there, one who appoints people to high positions who read their former colleague’s postings.  Assuming they’ve meant what they’ve said for the past six or seven years when it was President Bush, Balkin and his cohort of bloggers should be pushing President Obama hard on these issues.  Instead, they’re nearly silent.

For that matter, where is Lederman on Obama’s preventive detention and military commissions scheme?  Is he drafting it or opposing it?  There’s a pixel trail suggesting that once upon a time, in principle, Mr. Lederman opposed prosecuting only those you were sure of convicting, and locking up the rest indefinitely. At this point, I’d be relieved just to learn that he’s still alive, let alone what his opinions are on ‘prolonged detention.’ Personally, I should think he’d resign from the OLC, judging by this. But who knows; he was once quite vocal that no one at OLC should be prosecuted for their egregious opinions; perhaps he was looking ahead.

Truth to tell, though, it’s not just a legal blog or one of their former colleagues who seem to be missing in action on this and other fundamental constitutional and legal debates.  The legal profession as a whole has not covered itself in glory — though the yeoman work of a few on behalf of Guantanamo detainees and their rights is a counterexample, and a few other voices like Glenn Greenwald and Scott Horton also brighten the darkness.

Consider: one president commits lawless acts — from authorizing torture to authorizing warrantless electronic surveillance to (lest we forget) authorizing a war based on lies his administration carefully nurtured.  He abridges rights enshrined in common law and the Bill of Rights, the Geneva Conventions — and in whatever natural law simple rats obey when they refuse to torture each other for a bit of kibble.  True, he becomes a figure of scorn, and the leader of the opposition party is elected in a landslide.  But that president appears to be determined to ignore the previous one’s lawlessness — indeed, seems to take positive pride in doing so.

And yet the tens of thousands of highly trained lawyers in this country do not rise up and object to that.  In Pakistan — Pakistan, for crying out loud —  lawyers literally took to the streets and battled police when General Pervez Musharraf sacked a Supreme Court justice there.  They literally impeached Musharraf and forced him out of office.

Here… nothing. Is the law in the United States a calling, a profession, or just a way for verbally clever people to network and make up new rules as they go along?

Never mind, don’t answer that.  I imagine Obama will come out with a Bright, Shiny Supreme Court nomination this week or maybe next one.  Most Americans will understandably focus on that, though there’s of course the slight possibility that nominee will voluntarily weigh in on Obama’s National Archives speech or Cheney’s Death Star one.

But just as with impeachment, a class of professionals ostensibly trained to notice and object when fundamental rights and fundamental avenues of redress are being frittered away are — by and large — saying nothing.  Although there are honorable exceptions to the rule, the rule is silence, and the rule is therefore consent.

It may be too early to conclude this, but it’s not too early to suspect it: the American legal profession has, as a class, forfeited its moral authority to protecting our civil liberties, our civil rights, and our human rights.  In this, they would merely join our media and political classes.  If so, Americans who care about these rights must look elsewhere for guidance.  I don’t know where that should be, but we should probably not look back.

=====
* Notably several of the writers recently shutting down comments –the very best way not to notice your commenters are less interested in what you’re writing than they used to be.  (Admittedly, it’s also the best way not to have to read yet another comment by Bart DePalma.)
UPDATE, 5/25: “Balkinization” co-blogger Sandy Levinson posts “Further notes on constitutional dictatorship,” touching on the issues above in his first point.

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No more “bites at the apple” for Troy Davis

Posted by Thomas Nephew on 17th April 2009

Amnesty International reports:

Today, the 11th Circuit Court of Appeals denied Troy Davis’ petition to file a second habeas petition in Federal district court. The decision is here. The vote of the three-judge panel was 2-1. The Court did extend Davis’ stay of execution for 30 days to give him a chance to file a habeas corpus petition with the US Supreme Court.

Mr. Davis is convicted of murdering a Savannah policeman — but many of the witnesses have recanted, saying they were essentially badgered into identifying Davis from photospreads that that didn’t feature an alternative suspect.  There is no physical evidence linking him to the crime.  For details of the case and — if you’re convinced, as I am, that he’s innocent — a way of contacting the Georgia Board of Paroles, visit Amnesty International here.

The 11th Circuit’s decision was, Judges Dubina and Marcus argued, largely governed by the AEDPA or “Antiterrorism and Effective Death Penalty Act” of 1996.*  As Lyle Denniston of SCOTUSBlog wrote in 2005,

The 1996 law was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.”

The law was passed overwhelmingly after the Oklahoma City bombing — establishing a pattern of abusing terrorist attacks for secondary purposes that was to neither Congress’s, the White House’s, the Democrats’, nor the Republicans’ credit.  As the court’s ruling noted,

…a common theme found throughout the congressional debates was the desire to prevent habeas petitioners from having successive “bites at the apple.”  See 141 Cong. Rec. S7803, S7877 (1995) (statement of Sen. Dole) (“By imposing filing deadlines on all death row inmates, and by limiting condemned killers convicted in State or Federal court to one Federal habeas petition — one bite of the apple — these landmark reforms will go a long, long way to streamline the lengthy appeals process . . . .”); 141 Cong. Rec. S16892, S16913 (1995) (statement of Sen. Feinstein) (“[T]his bill provides habeas petitioners with ‘one bite at the apple.’ It assures that no one convicted of a capital crime will be barred from seeking habeas relief in Federal court[.]”); 141 Cong. Rec. S7803, S7809 (1995) (statement of Sen. Kennedy) (“The proposal to limit inmates to one bite at the apple is sound in principle.”); 141 Cong. Rec. S7803, S7832 (1995) (statement of Sen. Biden) (“The vast majority of us . . . want to and have been trying for years to change the old system to limit the time in which a petition can be filed and to limit the number of petitions that can be filed. So essentially you get one bite out of the apple.”).

(Emphases from the world’s greatest deliberative body added.) The two justices also argue that Davis’s claim of innocence is not compelling, but revealingly lead with the notion that witness recantations themselves ‘upset the society’s interest in the finality of convictions.’ They also (unnecessarily by their own arguments, but again quite revealingly) take refuge in arguing that the substance of the recantations is insufficient to establish innocence … when the point ought to be that the constitutional, justice-driven burden ought to remain on establishing guilt — feckless 1996 legislation notwithstanding.

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It was the justices, in the courthouse, with their pens

Posted by Thomas Nephew on 14th October 2008

The Jurist Paperchase legal news service has just reported: “The US Supreme Court on Monday rejected a petition to hear a Georgia death row inmate’s appeal, lifting a stay on his execution.” From the Supreme Court order list for October 14, 2008:

08-66
DAVIS, TROY A. V. GEORGIA
The motion of The Innocence Project for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is denied.

No physical evidence. Most witnesses have recanted their testimony. One of the two remaining witnesses is a prime suspect himself. The Atlanta Journal Constitution’s Bill Rankin reports:

Larry Cox, executive director of Amnesty International, which has supported Davis’ appeals, condemned the high court’s decision. “It is disgraceful that the highest court in the land could sink so low when doubts surrounding Davis’ guilt are so high,” Cox said. “Faulty eyewitness identification is the leading cause of wrongful convictions and the hallmark of Davis’ case.” Georgia State University law professor Anne Emanuel, who chaired an American Bar Association team that assessed Georgia’s death penalty, also criticized the decision. “I find it shocking and dismaying that our criminal justice system could allow an execution in a case like this, where guilt is seriously in question,” she said.

If Troy Davis had eluded capture until now, he’d almost certainly be found not guilty of the crime he’ll be executed for. The Supreme Court has made itself a participant in the judicial murder of one man today, and of more in the future.

=====
MORE: Prior Troy Davis posts at this web site; Amnesty International USA Troy Davis web site (“Finality over Fairness”)
UPDATE, 10/14: Andrew Cohen, for CBS: “what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.”

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Garrett Park, Maryland SLAPPed — then stifles itself

Posted by Thomas Nephew on 12th October 2007

The term SLAPP (“Strategic Lawsuits Against Public Participation”) is used to describe a lawsuit “involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against nongovernment individuals or organizations on a substantive issue of some public interest or social significance,” and more generally suits arising from speech in connection with a public issue.

Though it hasn’t reached actual litigation yet — and perhaps never will — something very much like that has happened to Garrett Park, Maryland impeachment advocates and their city government.

The story begins on September 10th, when the Garrett Park city council first considered passing a resolution supporting impeachment. Nine citizens of the small (pop. 917 in 2000) town testified for it, one suggested a referendum. For whatever reason, the latter suggestion prevailed in a 3-2 vote.

Or so it seemed. A legal firm representing two Garrett Park residents unhappy with the vote claimed in a September 27 letter that the Garrett Park council could not call for such a referendum, under state law and the town charter, since there was no ordinance for the referendum to refer to:

Pursuant to the Annotated Code of Maryland, Art. 23A, the powers of a municipal corporation such as Garrett Park are limited to those powers specifically enumerated in Section 2 of Article 23A. The power to vote a referendum is not among those powers, because, among other reasons, under the Constitution of Maryland, Art XVI, the referendum is reserved solely to the people. In order to exercise the power of referendum, either for the purpose of amending the municipal charter (Ann Code of Maryland, Art. 23A, Section 13) or for submitting an ordinance of the Town Council for the approval or disapproval of the qualified voters of the town (Garrett Park Charter, Section 78-15), a petition of not less than twenty percent of the qualified voters of the town is required. It is our understanding that you do not have before you a petition of at least 20% of the qualified voters on this matter, and even if you did, the question of impeaching President Bush and Vice President Chaney (sic) is neither an ordinance of the Town Council nor a proposed charter amendment, so submitting the matter to referendum is improper. Lastly, because the Town Council, as a legislative body, lacks the power of referendum, the vote on September 10, 2007 to refer the matter to referendum was also improper.

(Links added.) The mayor and town council hastily agreed — having established meanwhile that the proper sequence of votes on the various motions of the evening had not occurred, so that the referendum vote itself was procedurally out of order. (Parliamentarians can peruse the mayor and town council’s explanatory letter of October 2, and a local “e-Bugle” newsletter covering the meeting, to check whether I — and the elected leaders of Garrett Park — have this part of the story right.) From the council’s letter:

Further research after the September meeting has led the Council to understand that it does not have the authority to call for a referendum on the issue of impeachment of the President and Vice President. Under state law and the Town Charter, referendums may only be held for Charter amendments or approval or disapproval of ordinances of the Town based on petitions with the signature of 20% of the registered voters of the town.

Notice so far that even if both the legal firm and the town fathers are absolutely right about all of the above, they are saying a very limited thing at this point: for lack of (1) a relevant ordinance or Charter amendment and (2) signatures from 20% of Garrett Park, a referendum can not be called by the Garrett Park town council. As will be seen below, it is not clear that everyone is absolutely right even about that — but the story takes a far more disturbing turn at this point.

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ICJ: Srebrenica was genocide. Serbian police were involved…

Posted by Thomas Nephew on 27th February 2007

…yet Serbia cleared of genocide, failed to stop killing (Alexandra Hudson, Reuters):

ICJ President Judge Rosalyn Higgins said the court concluded that the Srebrenica massacre did constitute genocide, but that other mass killings of Bosnian Muslims did not.

But she said the court ruled that the Serbian state could not be held directly responsible for genocide, so paying reparations to Bosnia would be inappropriate even though Serbia had failed to prevent genocide and punish the perpetrators.

A summary of today’s rulings can be read at the International Court of Justice (ICJ) web site, along with detailed verdicts and dissents and a recording of Judge Higgins’ reading of the decisions.

Tuzla women react to ICJ ruling. Photo by Damir Sagoli - Reuters
This photo accompanied the Washington Post paper edition of the linked story.
Its caption: “Surrounded by photos of victims of the 1995 massacre of Muslim men
and boys in Srebrenica, Bosnian women in Tuzla react to television news reports
from The Hague, where the International Court of Justice ruled that the Serbian
government, which had helped arm and finance the Bosnian Serb forces, was not
responsible for the genocide.”
(Photo by Damir Sagoli – Reuters)

Fifteen select judges took a long time to come to these decisions, and did so by fairly sizeable margins (13-2 against Serbian responsibility for genocide, 10-5 for having jurisdiction, 11-4 not even complicit in genocide, for crying out loud, etc.).

Let’s assume for the sake of argument that they came to the best decision they could in accordance with international law and specifically the international law of genocide — despite being aware that Serbian police units were videotaped participating in Srebrenica killings; that the International Criminal Court had enough evidence to put the Serbian head of state Slobodan Milosevic on trial for genocide; and that one of the chief architects of the Srebrenica massacres, “General” Ratko Mladic, remains at large and has been acknowledged to have been on the Serbian military payroll after going underground.

We may therefore provisionally conclude that either that body of law or its application by the worthy jurists of the ICJ is so limited as to be useless. This seems like a black day for justice as mere laypeople like me or those waiting for justice in Bosnia will understand it.

Useless? Useless at best. Between them, Serbia and the ICJ have now apparently identified the level of deniability and legal hocus-pocus needed to dodge a genocide verdict and the reparations that might have entailed. I wonder whether that’s what the ICJ’s judges, creators, and supporters intended, but I think that’s what they got. In the future, the piety that “if you want peace, work for justice” will have a bitter, fraudulent ring if you’re from Sarajevo, if it didn’t already. To say nothing of Srebrenica. You’d be much better off praying for close air support, or taking up arms with a fury yourself. Darfurians will be justified to take note. In fact, they’d better: the Sudanese government certainly will.

===
ADDENDA: From Judge Vice-President Al-Khasawneh’s dissenting opinion:

…the Judgment considers two documents presented by the Applicant, in which there is reference to the “Scorpions” as “MUP of Serbia” and a “unit of Ministry of Interiors of Serbia”. The paragraph notes that the authenticity of the documents was disputed by the Respondent presumably because “they were copies of intercepts, but not originals”. But it is plain that if the Court insisted on original documents, it would never be able to render any judgments. Be this as it may, the other reason advanced to undermine the importance of these documents is that they are not addressed to Belgrade, the senders being “officials of the police forces of the Republika Srpska”. But this in itself does not deny their probative value. When an official of the Republika Srpska sends a telegram to his superior in which the Scorpions are described as “MUP of Serbia” or “a unit of Ministry of Interiors of Serbia”, there is no reason to doubt the veracity of this statement.

From Judge ad hoc Mahiou’s dissenting opinion as translated by ICJ (emphases added):

I cannot subscribe to most of the substantive findings reached by the Court by way of what I believe to be: a timorous, questionable view of its role in the evidentiary process, a deficient examination of the evidence submitted by the Applicant, a rather odd interpretation of the facts in the case and of the rules governing them and, finally, a method of reasoning which remains unconvincing on a number of very important points. […] In my view, the Respondent’s responsibility appears clearly established in respect of Republika Srpska’s actions, either because of the very close ties between that entity and the Respondent, resulting in the Respondent’s implication in the ethnic cleansing plan carried out between 1992 and 1995, or because of the relationship of subordination or control between the Respondent and those who played a crucial role in that ethnic cleansing, which extended to the commission of genocide in Bosnia and Herzegovina.

EDIT, 2/27: Photo, caption added.

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Department of followups

Posted by Thomas Nephew on 25th January 2007

An occasional review of further developments in stuff I’ve written about.

Babel, 12/4/06 — I really liked the movie, so I’m pleased the Academy Awards people nominated it for Best Picture, Best Director, and two Best Supporting Actresses including Rinko Kikuchi, who I misidentified as Yuko Marata though crediting her with a “really memorable performance.” It also got well deserved Oscar nominations for best original screenplay, film editing, and music score.

Appeal for Redress from the War in Iraq, 12/18/06 — The appeal reads: “As a patriotic American proud to serve the nation in uniform, I respectfully urge my political leaders in Congress to support the prompt withdrawal of all American military forces and bases from Iraq. Staying in Iraq will not work and is not worth the price. It is time for U.S. troops to come home.” Last week that petition, signed by over a thousand military personnel, was delivered to Capitol Hill. From the LA Times account by Noam Levey:

When the campaign began three months ago, White House Press Secretary Tony Snow dismissed the first signatories as “65 people who are going to be able to get more press than the hundreds of thousands who have come back and said they’re proud of their service.” The 1,000 signatories still represent a tiny fraction of the military personnel who have served in and around Iraq since the 2003 invasion. But according to the group, those who have signed the appeal include about 100 officers. Approximately 70% of the signatories are active-duty military, while the rest are reservists or members of the National Guard, said Madden, who added that the group would not reveal the names of the signatories to protect them.

Employee Free Choice Act, 6/13/05 — This perennial progressive wish list item may have the best prospects in years. The measure allows for union locals to be formed once enough signatures are gathered — rather than via up or down votes notoriously susceptible to management pressure and bullying tactics. You can learn more about “card check” systems via American Rights at Work, and you can send your congressman a message you support this sensible measure via a AFL-CIO Working Families petition: “Some 58 million workers would join a union if they could. But, as Human Rights Watch has documented, employers routinely harass, coerce, intimidate and stall to block workers’ freedom to choose union representation. In fact, every 23 minutes a worker is fired or penalized for supporting a union.” The Senate bill is S. 842, and the House version is H.R. 1696; I’m happy to learn my congressman, Chris Van Hollen (D-MD-8), is a co-sponsor.

Security Council votes 12-0-3 for UN troops in Darfur, 8/31/06 — One of the three abstentions was China. Now that nation is signaling a slightly different stance — but still no real pressure. The New York Times is running the headline China’s Leader to Visit Sudan and Seek End to Darfur Conflict, with Howard French reporting that Chinese officials announced President Hu Jintao will visit Sudan in early February and “press for a diplomatic solution to the conflict in that country’s western Darfur region.” However, a Chinese foreign ministry spokesman said that, “while China intended to use its diplomatic influence to encourage a settlement of the Darfur crisis, it would not press Sudan publicly or threaten it with sanctions.”

Fair Share Health Care: canary in the ERISA coal mine, 12/15/06 — Last Thursday The U.S. Court of Appeals for the 4th Circuit upheld last year’s ruling overturning Maryland’s “Fair Share Health Care” law on the grounds that it conflicted with federal law, specifically the Employee Retirement Income Security Act (ERISA). The Baltimore Sun’s Matthew Dolan et al report:

…A divided three-judge panel ruled that the state’s Fair Share Health Care Act was incompatible with federal rules that promote uniform treatment of employees.

“In short, the Fair Share Act leaves employers no reasonable choices except to change how they structure their employee benefit plans,” Judge Paul V. Niemeyer wrote for the majority, adding that such a constricted choice also violates the federal Employee Retirement Income Security Act, or ERISA.

One of the three judges disagreed; Judge M. Blane Michael held that the law was “‘a permissible response to the problem’ of escalating Medicaid costs.” While the article reports that most Maryland legislators don’t want to revisit the legislation, Senate Leader Mike Miller is an important exception:

“We’re going to try to work around what the [court’s] majority said and comply with the law,” Miller said. “But at the same time, we can’t allow 60 percent of Wal-Mart employees’ kids to go without health insurance and use the emergency rooms for care. There has got to be some relief for Maryland and the other states.

Emphasis added. And even though he counsels against appealing the verdict, I also agree with Sen. Thomas M. Middleton, a Charles County Democrat and chairman of the Senate Finance Committee: “First of all, Congress needs to loosen up the ERISA laws.” More on the 4th Circuit’s ruling another time, I hope. For now, I’ll just reprint dissenting Judge Michael’s final words:

Because a covered employer has the option to comply with the Act by paying an assessment — a means that is not connected to an ERISA plan — I would hold that the Act is not preempted.

Yes! Jiminy Christmas, that ought to be the ballgame — at least one judge gets it.

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NOTES: Fair Share court ruling via Steve Fine (“fineline”)
EDIT, 1/25: Judge Michael’s final words and my comment added.

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