The United States Code defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.” 18 U.S.C.A. § 2340 (West 2012). Further,

 “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from: (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D)  the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

18 U.S.C.A. § 2340 (West 2012).  The problem with this definition is its workability.  To one person on the street, keeping a prisoner awake for 36 hours may not fit any of these definitions, while to another person it might “disrupt profoundly the senses.”  The same can be said for stress positions, a 20-hour interrogation, and waterboarding.  Ultimately, the meaning of the definition depends on who you ask, which does little to help interrogators trying to do the right thing.

Further, government agencies are little help.  Ali Soufan, a top FBI Interrogator, testified before Congress that harsh interrogation techniques are slow and unreliable and he recommended the use of the Informed Interrogation Approach, which involves having knowledge beforehand about the detainee’s past and building a relationship with the detainee. On the other hand, the CIA claims that the interrogation of Khalid Sheikh Mohammed (who was waterboarded 183 times) saved numerous lives, both here and abroad, and “led to the arrests of al Qaeda operatives that same month, while they were plotting attacks on American soil.” Both accounts have fair points, but should be taken with a grain of salt.  Since the FBI has a policy not to use harsh interrogation techniques while the CIA does employ such techniques, it makes sense for each agency to defend its own policy.

In sum, torture is not an easy thing to define.  The definition we have is vague and cannot be used to clearly put any tactics in the column of either “torture” or “acceptable interrogation.”  Congress can work on the definition and the president can issue executive orders, but at the end of the day the definition of “torture” is a philosophical and moral issue, complicated by the threats facing our country today.  It is hard to get just right, so until someone comes up with a practical, workable definition, we simply have to trust our government not to go too far.

The Alien Tort Statute (“ATS”) creates federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.

Sosa’s guidance notwithstanding, the frequent indeterminacy of international custom creates a significant risk of disagreement among circuit courts tasked with identifying the precise contours of ATS jurisdiction. And indeed, over the past year, appellate courts have split on a new and important aspect of the statute—namely, whether it creates federal jurisdiction over claims alleging corporate violations of customary international law. The D.C. and Seventh Circuits have answered the question affirmatively, and thus permitted plaintiffs to sue corporations for engaging in conduct that violates international custom. But in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit reached precisely the opposite conclusion. The plaintiffs in Kiobel alleged that Royal Dutch helped the Nigerian government to suppress dissent among Nigerian citizens who were unhappy with the environmental effects of oil exploration in the region, and in doing so aided and abetted the government’s commission of various human rights abuses. The complaint asserted, for example, that Royal Dutch provided transportation to Nigerian forces, allowed its property to be used as a staging ground for military attacks on protestors, and provided food and compensation to soldiers involved in the attacks. The Nigerian forces allegedly used this support to engage in extrajudicial killings, crimes against humanity, torture, and arbitrary arrest and detention, among other acts. The plaintiffs asserted jurisdiction under the ATS, but Royal Dutch moved to dismiss on the ground that the statute does not confer jurisdiction over corporate defendants because there is no norm of corporate liability under international custom for the types of offenses alleged. The Second Circuit agreed, and therefore dismissed for lack of jurisdiction.

Given the circuit split and the importance of the question, the Supreme Court granted certiorari in Kiobel last month. It is difficult to predict how the Court will decide the case, but a ruling in favor of either side of the split will have significant implications for corporate responsibility abroad. If the Court agrees with the D.C. and Seventh Circuits, we can expect that plaintiffs will use the ATS to hold corporations accountable for conduct at odds with important international legal norms. If the Court agrees with the Second Circuit, however, plaintiffs will lose a valuable tool for constraining corporate behavior.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment.

The legality of the extrajudicial assassination of al-Awlaki was the subject of a civil suit in 2010.  After learning that his son had been placed on a CIA/Joint Special Operations Command “kill list”, al-Awlaki’s father brought suit in the U.S. District Court for the District of Columbia against President Obama, Secretary of Defense Robert Gates, and CIA Director Leon Panetta.  In an attempt to enjoin the executive branch from killing his son, al-Awlaki introduced several claims based in both constitutional and tort law.  The court’s lengthy opinion begins with a compelling recitation of the questions presented:

How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen –himself or through another — use the U.S. judicial system to vindicate his constitutional rights while simultaneously evading U.S. law enforcement authorities, calling for “jihad against the West,” and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts, as plaintiff proposes, make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the “target” of contemplated military action the precise standards under which it will take that military action? And how does the evolving AQAP relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?

Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 8-9 (D.D.C. 2010).

Before contemplating the more compelling issues, the court first decided the issue of standing.  Al-Awlaki’s father lacked “next-friend” standing because he failed to provide an adequate reason justifying why Anwar could not appear in court on his own behalf.  His father claimed that if Anwar presented himself to authorities he would be exposed to attack.  The court disagreed, citing public government statements indicating that if al-Awlaki surrendered peacefully he could not be executed without due process.

The court also denied third party standing, holding that Anwar’s father could not show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.  Anwar’s status as an adult was of particular importance because a parent does not have a constitutionally (or common law) protected liberty interest in maintaining a relationship with his adult child free from government influence.

Prudential standing was denied because, among other reasons, the court refused to “unnecessarily adjudicate rights” that it believed al-Awlaki did not wish to assert himself.  The court noted that al-Awlaki made numerous public statements professing his contempt for the U.S. legal system.  Al-Awlaki did not believe that he was bound by U.S. laws because, in his view, they are contrary to the teachings of Allah.  I personally find it difficult to believe that a person would not want to contest his own assassination, but it also seems unlikely that al-Awlaki would wish to assert legal rights in a court system that he did not recognize as authoritative, especially in a country that he openly despised.

Ultimately, the most compelling issues were not addressed because the court found that judicial review was inappropriate.  The court held that separation of powers and the political question doctrine prohibited interfering with the executive branch’s orders with respect to military action abroad.   Meaningful review was deemed impossible, because it would require an unmanageable assessment of the quality of the President’s interpretation of military intelligence and his resulting decision (based upon that intelligence) to use military force against terrorist targets overseas:

[T]his Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” (citation omitted), the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, (citation omitted), presents such a threat to national security that the United States may authorize the use of lethal force against him. This Court readily acknowledges that it is a “drastic measure” for the United States to employ lethal force against one of its own citizens abroad, even if that citizen is currently playing an operational role in a “terrorist group that has claimed responsibility for numerous attacks against Saudi, Korean, Yemeni, and U.S. targets since January 2009,”(citation omitted) But as the D.C. Circuit explained in Schneider, a determination as to whether “drastic measures should be taken in matters of foreign policy and national security is not the stuff of adjudication, but of policymaking.” (citation omitted) Because decision-making in the realm of military and foreign affairs is textually committed to the political branches, and because courts are functionally ill-equipped to make the types of complex policy judgments that would be required to adjudicate the merits of plaintiff’s claims, the Court finds that the political question doctrine bars judicial resolution of this case.

Al-Aulaqi, 727 F.Supp.2d at 52-53.

It is unfortunate that the Aulaqi case never made it beyond the issue of standing, but perhaps that was the proper outcome.  Although Awlaki was a U.S. citizen (and a citizen of Yemen), he was also clearly a member of al-Qaeda.  Shortly after 9/11, Congress passed the Authorization for Use of Military Force (“AUMF”).  The AUMF provides that:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001…in order to prevent any future acts of international terrorism against the United States…

Everyone (except for the guy who leaves “9/11 was inside job” comments beneath every news article on the internet) knows that al-Qaeda is the organization that planned and committed the terrorist attacks that occurred on 9/11.  Al-Awlaki was indisputably a member of al-Qaeda.  The Executive’s killing of al-Awlaki was certainly aimed at preventing future acts of international terrorism against the United States.  If the AUMF can be read as authorizing al-Awlaki’s killing, then it would appear that the President assassinated him with congressional approval.  In that scenario, Justice Jackson’s concurrence in Youngstown would indicate that the President was acting at the highest ebb of his authority.

Still, many columnists and politicians like Ron Paul believe that Obama’s decision was illegal on due process grounds.  Might Ron Paul be engaging in political grandstanding?  I do seem to remember hearing something about an upcoming election.  On the other hand, the AUMF only authorizes necessary and appropriate force.  In his suit against the Executive, al-Aulaqi suggested that imminence is the key factor in determining whether lethal force is justified.  It would have been interesting to find out what legal standard the court would apply to the use of lethal force on foreign soil against a member of al-Qaeda holding U.S. citizenship, but that issue was never addressed.

Was the force used against al-Awlaki necessary and appropriate?  It seems difficult to determine without a meaningful presentation of evidence against al-Awlaki.  Personally, I don’t think I’ll hold my breath waiting for the day that the general public is offered an explanation as to why al-Awlaki couldn’t be captured and tried in a U.S. courtroom.  It is troubling to know that the President can order the extrajudicial execution of a U.S. citizen based upon secret evidence.  On the other hand, it has been said that the Constitution is not a suicide pact, and it’s comforting to know that the President is tracking and killing those who are actively trying to kill Americans.

After reading the al-Aulaqi opinion, I was left feeling unsatisfied with the court’s decision to defer to the other branches of government, but I understood why it did so.  In many ways, the moral issue of al-Awlaki’s murder leaves me feeling the same way.  I think it’s unfortunate that al-Awlaki was not indicted, captured, and tried in Federal court.  I also understand that applying traditional due process to a terrorist abroad might create a logistical nightmare and place many innocent lives in danger.  Is this a slippery slope?  If so, wouldn’t requiring the judicial approval of military strategy abroad be just as slippery?  Either way, I respect those who speak out in favor of due process.  I also wonder how many of those people, if faced with the same choice as the President, would choose differently.

According to the complaint (which can be viewed here), on March 10, 2010, MSP submitted a development application to construct 180 units of affordable housing in what is known as New Berlin’s “City Center.”  The proposal stated that the development would include 100 elderly units and 80 workforce housing units.  The development was intended to be financed in part by the Low-Income Housing Tax Credit program, a program that allows a developer to sell tax credits to investors in exchange for the promise that the developer will rent the apartments for below-market rates to tenants who qualify.  For this specific development, MSP was going to rent to individuals who made 40 to 60 percent of the median household income in New Berlin.  In New Berlin, the median income as of 2000 was approximately $70,000, which means the proposed development would rent to individuals who made $28,000 to $42,000 a year.

On May 3, 2010, the New Berlin plan commission voted 4-3 to approve MSP’s application.  The next day, the local media reported the approval, and residents of New Berlin began to voice their disapproval, with protests culminating at a local town hall meeting.  (Some examples of the local opinions voiced at that meeting are here.)  According to the complaint, Mayor Chiovatero also received threatening phone calls at his home, and had a sign that read “n—-r lover” placed in his front yard.

The complaint alleges that these events eventually led the Mayor to move for reconsideration of the approval, and the plan commission unanimously approved the Mayor’s motion to reconsider on June 7, 2010.  This vote eventually led to a 90-day moratorium on any new development proposals, and effectively denied the MSP application.  Now, the government alleges that New Berlin’s action violated § 3604(a) insofar as the City denied housing to individuals on the basis of their race when it voted against the MSP project.

Although it may seem like the complaint is based on income level, a class that is not protected by the Fair Housing Act, the complaint points out that minority households make less income annually, on average, than white households do.  Further, minority households are more likely to be below the poverty line.  Thus, these statistics, taken together with the allegations of racially based comments, will lay the groundwork for the theory that citizens of New Berlin opposed the project based on the belief that it would attract more minority residents.  Liability might then extend to the City through the theory that the City denied the project to appease the citizens’ racially-based opposition.

Like the proposed development, the filing of this complaint has provoked feelings of strong opposition.  These feelings come with good measure.  The filing of the complaint implicitly calls New Berlin residents racist, and brings national attention to the City that is not favorable.  To be sure, this post is not endorsing the belief that all residents of New Berlin are racists, or that the government is trying to make that allegation; however, these are inferences that the public will make upon learning about this complaint.

Nonetheless, the fact remains that Milwaukee is the third-most segregated city, and the Milwaukee metro area is the most segregated metropolitan area, in the Country.  Census data show that Milwaukee County is only 54 percent white, whereas Waukesha County is approximately 90 percent white, Ozaukee is 93 percent white, Washington is 94.2 percent white, Racine is 74 percent white, and Kenosha is 78 percent white.

As problems of racial discrimination and separation continue on into 2011, perhaps the main question becomes whether integration will ever be an achievable goal for this country.  It may be possible that the legal fight against racial discrimination has grown similar to the legal fight against drugs; no matter how hard one tries, people will always engage in the illegal practice.  And no matter how hard one tries, perhaps racial integration is something that cannot be forced upon various communities in our society.

Housing discrimination and segregationist practices are problems that still plague the City of Milwaukee, the Milwaukee metropolitan area, and the United States as a whole.  Although there are many individuals who either applaud or bemoan this lawsuit, most do so for incorrect, politically charged reasons.  Segregation and racial discrimination are both issues that need to be addressed in Southeastern Wisconsin.  At the very least, perhaps this complaint can bring attention to these problems and provide an impetus for people to work toward a solution to fix them.

The latter view is hardly foreign to the American legal tradition.  The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s.  Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.

And a line of decisions extending back at least to the 1950′s does embrace the view that even criminals are entitled to some level of decent treatment simply by virtue of their humanity.  Here’s how Justice Kennedy, writing for the majority in Brown, put it:

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty.  Yet the law and the Constitution demand recognition of certain other rights.  Prisoners retain the essence of human dignity inherent in all persons.  Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.  The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.

To contemporary lawyers, this passage may sound like a cliche, but these ideas that prisoners retain their essential moral status as human beings and are entitled to dignified treatment is profoundly at odds with the Thirteenth Amendment’s equation of convicts with slaves — a view that was long accepted without serious question in our legal culture and that even today seems still entrenched in our political culture.

Indeed, even on the Supreme Court, the expansion of Eighth Amendment rights beyond the bare minimum of protections that were expressly mentioned by the framers remains possibly the most enduringly divisive legacy of the Warren Court.  Brown put the division on vivid display, with a 5-4 split and two strongly worded dissenting opinions (even by Justice Scalia’s normally dyspeptic standards).  In the Court’s close division and the strongly worded dissents, Brown echoes other recent Eighth Amendment cases dealing with sentencing, such as Graham v. Florida (banning life without parole for juveniles convicted of nonhomicide crimes), Kennedy v. Louisiana (banning the death penalty for sexual assault of a child), and Roper v. Simmons (banning the death penalty for all juvenile offenders).

If you accept the premise that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” then Kennedy’s majority opinion in Brown seems reasonable enough.  Designed to hold a population of about 80,000 inmates, California’s prisons hold close to 160,000.  Ample evidence demonstrates that overcrowding has had devastating, sometimes lethal, consequences for inmates suffering from mental illness or other serious medical problems.  More than fifteen years ago, in response to a class-action lawsuit, a federal district judge found that inmates with mental illness experienced systemic constitutional violations.  A decade ago, in connection with a separate class action, California actually conceded that deficiencies in its prison medical care also violated the Eighth Amendment.  Less drastic remedial measures proved unsuccessful over a period of many years, leading to consolidation of the two cases before a three-judge panel and an order to reduce the prison population to 137.5 percent of capacity within two years.

California’s appeal to the Supreme Court focused less on the underlying constitutional violations than on the remedy and its consistency with the Prison Litigation Reform Act.  The PLRA expressly contemplates that a three-judge panel may issue a “prisoner release order” in response to constitutional violations, but imposes a stringent set of criteria that must be satisfied first.

The Supreme Court affirmed that the PLRA requirements were met.  Of particular importance were the requirements that “no other relief will remedy the [constitutional] violation” and that the court “give substantial weight to any adverse impact on public safety.”  In finding these requirements satisfied, the Court emphasized the fifteen-year history of the litigation, the lack of success with other remedies, California’s fiscal crisis and resulting inability to address constitutional violations through new spending, the flexibility afforded by the panel’s order (for instance, permitting transfer of prisoners to county jails or out-of-state facilities in lieu of outright release), the ability to accomplish release through expanded good-time credits and other mechanisms that would serve to distinguish riskier from less risky inmates, and the likelihood that better prison conditions would reduce the recidivism risk posed by many inmates.

Justice Scalia’s dissent is framed primarily as an objection to federal judges engaging in just this sort of social policy analysis.  Scalia is sounding very familiar Scalian themes of judicial restraint.  He would interpret the PLRA to preclude “structural injunctions” under any circumstances — a “prisoner release order” could only provide for the release of a single prisoner.  His vision of prisoner rights litigation would seem to involve adjudication one prisoner at a time; each inmate would have to prove an individual violation of rights and would receive an individualized remedy.

This would be, of course, a tremendously cumbersome process, and it is hard to see how it would ever result in structural changes, no matter how compelling the case for structural change is.

The trouble for Scalia’s position, as even he seems to admit, is that “the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular.”  It turns out that Scalia isn’t really being much of a restraintist, at least when it comes to interpreting statutory text.  He suggests that the Court should “bend every effort to read the law in such a way as to avoid” the release of prisoners.  Why?  As a matter of social policy choice.

Scalia says that federal courts are “incompetent” to make penal policy, and should defer to the experts in the executive branch.  Yet, a parade of prison experts from across the nation, including former officials from California, testified before the three-judge panel that the California system was horribly broken.  Simply deferring to the “experts” in the executive branch would predictably result in an ongoing series of constitutional violations.  I’m not sure even the state would seriously contest this point.

In the end, I think what animates Scalia’s dissent is not really a view about the PLRA, but a view about the Eighth Amendment.  As he notes in passing in Brown, Scalia has never accepted that the Eighth Amendment is a general mandate to treat criminals with basic decency.  For Scalia, criminals don’t “count” — at least not in any meaningful way that the law is bound to respect.

This view of criminals received its fullest articulation in Chief Justice Burger’s majority opinion in Hudson v. Palmer, which held that prisoners have no Fourth Amendment rights in their cells.  (I have an extended discussion of the opinion, here.)  The criminal is the dangerous outsider, a profound and irredeemable threat to law-abiding citizens.  I hear an echo of this view in Scalia’s crack in Brown that “many [of those released as a result of the lower-court's order] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”   Certainly, the view informs Scalia’s assertion that a release of 46,000 convicts is “outrageous,” “absurd,” and contrary to “common sense.”  It probably also helps to account for his cavalier attitude toward the Eighth Amendment violations that could only be prevented through the sort of structural remedies that his interpretation of the PLRA would preclude.

Justice Alito’s dissent is less strident in tone and less extreme in its implications.  Alito would not interpret the PLRA to ban mass prisoner releases as a matter of law.  He would, however, interpret the statute such that they might be nearly impossible as a practical matter.

Alito’s opinion sounded two themes.  First, the three-judge panel moved too quickly to the mass-prisoner-release remedy, and should have considered more complete and up-to-date information regarding the state of the California system and alternative remedies.  But it’s not as if the panel moved precipitously.  Fifteen years of litigation preceded the prisoner release order.   Moreover, the remedy trial involved 14 days of testimony and resulted in a 184-page opinion.  It’s always possible for a court to do more, and I don’t doubt that the panel’s work was less than perfect.  At some point, though, a court’s work must end and a remedy must be selected; otherwise, the underlying right that was violated is effectively nullified.  I’m not sure that is what Alito is driving at, but the consequence of what he contemplates may well be judicial paralysis by analysis.

Alito’s second major theme was that the three-judge panel was not “duly mindful of the overriding need to guard public safety.”  Alito seems to recognize what Scalia denies — that the PLRA itself contemplates that judges will engage in social policy analysis when they decide whether to order a prison release.  (Maybe this is why Scalia did not join Alito’s opinion, and Alito did not join Scalia’s.)  Alito is obviously skeptical of the view that overcrowding contributes to recidivism risk, and believes that “prisoner release orders present an inherent risk to the safety of the public.”  This use of the term “inherent,” coupled with Alito’s characterization of public safety as an “overriding” concern, raises the question of whether Alito would find any release order consistent with the PLRA.  In any event, he closes by restating his fear that Brown ”will lead to a grim roster of victims.”

Alito’s fear should not be discounted; in my view, the risks of victimization, particularly violent victimization, make Brown a difficult case.  At the same time, I would find Alito’s opinion more persuasive if he grappled with two countervailing considerations.  First, Alito’s opinion is very much in the spirit of Hudson – all prisoners are inherently and uniformly dangerous.  But we know that not all prisoners reoffend, and many important risk factors are now well-understood.  There’s no reason to assume that California will indiscriminately release 46,000 prisoners, and indeed the lower-court’s decision was apparently premised on the expectation that the state would respond to the release order in a much more nuanced fashion.  An analysis of whether the lower court gave adequate weight to public safety should, I think, focus on what the state is actually likely to do, rather than a worst-case scenario.

Second, Alito’s opinion makes no mention of the harm to prisoners from failing to address overcrowding, including the near-certainty of lethal negligence in the delivery of medical and mental-health care.  As Alito talks about public safety as the “overriding” consideration and the “grim roster of victims,” there is an implicit tradeoff being made: the lives and well-being of prisoners are being sacrificed in favor of the lives and well-being of anticipated crime victims.  Again, it would seem that criminals don’t “count” in his calculus.

I don’t mean to suggest that I would necessarily weigh the interests of the Brown classes ahead of their prospective victims.  My point here is just to observe the invisibility in Alito’s analysis of the inmates as individual human beings for whom we might conceivably have some fellow-feeling.  We seem back to that Thirteenth Amendment mentality.

Cross posted at On Point.

This almost certainly doesn’t put Ratner in the mainstream of American opinion, but it is consistent with what Ratner has advocated as president of the Center for Constitutional Rights, a New York-based non-profit organization, and as an attorney who has played key roles in defending the legal rights of prisoners at the military prison at Guantanamo Bay and in opposing interrogation techniques Ratner considers torture.

Ratner visited Eckstein Hall last week to speak to about 20 people at a lunch session of the American Constitution Society for Law and Policy, Milwaukee Lawyer Chapter.

Ratner realizes where the preponderance of American opinion lies on the killing on May 1 of bin Laden. “No one really cares whether he was lawfully killed or not,” he said. “People wanted him killed.”

President Barack Obama said justice was done. But to Ratner, justice being done would have meant putting bin Laden on trial. “The US has never actually put out the evidence that he (bin Laden) was” the master planner behind the attacks on September 11, 2001, against the World Trade Center in New York and the Pentagon in Washington, D.C., Ratner said.

Ratner said his organization has strongly advocated using the law enforcement model in approaching terror suspects, which is why it has led efforts to give those detained at Guantanamo rights such as habeas corpus. The US Supreme Court has ruled in favor of extending at least some rights to those at Guantanamo in cases in which Ratner played a role.

Ratner had little praise for President Obama’s work on issues such as using techniques many consider torture in dealing with terrorism suspects.  “We all had these great hopes for Obama,” he said. But two years after Obama became president and said he wanted to close Guantanamo, the military detention operation there looks more permanent than ever, Ratner said.

Ratner said that on the issues that are his priorities, Obama “has not been great.”  He gave the president credit for eliminating the secret prisons US agents had operated around the world. But Obama said at one point that the US should look forward, rather than backward, when deciding whether to consider action against those who gave permission to engage in extreme techniques for questioning terror suspects during the administration of President George W. Bush. Ratner called that “one of the most disingenuous statements I could hear. “ He said, “He’s looking forward to a country that may well torture again.”

For me, Roni Lev was one of the most interesting speakers we had during the trip. She presented on the operational legal questions she would face in her job as legal adviser to the Northern Command of the IDF. I was most interested in how Israeli law has evolved to address targeting and weighing the risk of civilian casualties. It was fairly clear the Israeli military and legal system had devoted a considerable amount of time to those questions, and that Israeli ethics had weighed heavily in the determination of operational rules. The whole discussion was rounded out nicely by Roni’s father, who provided an anecdote from his Air Force days of an Israeli pilot who received orders to fire but chose not to because of the probability of substantial civilian casualties. The commanding officer expressed his disagreement but respected the pilot’s decision. Overall, it was an interesting look at how the law tries to solve difficult operational questions, but also how the law will never be able to govern the complex situations that confront the Israeli military.

Cross posted at Indisputably.

When we arrived in Israel and began our sightseeing and touring, one of the things that struck me the most was how “normal” our surroundings were – people went to work, had families, and lived their day-to-day lives like the nothing out of the ordinary was going on in the region. Even though the conflict was not as apparent as I thought it would be, as the trip went on, we heard many different speakers with many different perspectives on the Israeli-Palestinian conflict, some more favorable to Israel and some more favorable to Palestinians. However, it was during our time meeting with two individuals from Parent’s Circle that the consequences of the conflict became real while at the same time breaking down the barrier between the two sides.  During our Parent’s Circle meeting, we met with two individuals both of whom lost a loved one in the conflict. The older woman, Robi, lost her son while he was on active duty in the Israeli Defense Force and the younger Palestinian man, Ali, lost his brother at the hands of the Israeli Defense Force. At first blush, one might assume these two individuals would be natural enemies given their stories, but instead they have come together in their grief to move past the conflict. Although these two individuals, like many others who participate in Parent’s Circle, have come together as a result of unfortunate circumstances, I think it demonstrates a larger concept at the heart of resolving disputes peacefully. Participants in the Parent’s Circle, both Israelis and Palestinians, are able to move beyond the conflict because they each have something in common, something in common that humanizes one another. I hope that if more Israelis and Palestinians can come together based on common interests or common experiences such that each side realizes that the other is human, both living day-to-day lives as mothers, fathers, brothers, sisters, wives and husbands, the conflict can fade into the background.

“A woman in South Africa described forgiving as giving up your just right for revenge, for me forgiving is understanding.” Such were the words of Robi during our meeting with Parent’s Circle on March 13, 2011, in Jerusalem. Robi is an Israeli woman who lost her son, an Israeli soldier, amidst the numerous confrontations that have assailed Israeli-Palestinian relations in the last fifty years. Robi’s remarks described the necessity of non-legal measures to reach the peace that both parties to the conflict in Israel desire. Robi’s co-speaker, a Palestinian by the name of Ali who had lost his brother in the same conflict, expressed hope in that if only Palestinians and Jews could understand each other’s narrative, not from their own perspective but from the other’s point of view, a solution might be reached. In his view, understanding each other’s narrative puts a “face on the enemy.” Robi and Ali led me to believe that current efforts by the Knesset and other organizations are working, but that  governmental efforts alone are insufficient to overcome decades (and centuries) of social, political, and religious animosity. In addition, the ability of Parent’s Circle to humanize the conflict would seem to stand for the proposition that a humanistic approach would prove more powerful and would create more permanent change than brute force or legislation. Anecdotal references from Parent’s Circle emphasize that violence creates a pernicious circle of victimization, revenge, and mistrust. To break this circle, individuals, followed by communities and states, must adhere to acts of non-violence, create empathy, and enable an atmosphere of trust. Trust is crucial to reach an agreement. Legislative efforts may establish trust through the rule of law, but community efforts are necessary to reach individual and collective reconciliation.

We had the opportunity to meet some extremely bright and influential people in the Israel-Palestinian debate.  When I think back to the speakers we heard from, my mind turns to the three Arab men that we met.  [Ed. note--We met with Justice Joubron of the Israeli Supreme Court, Ali from the Parent's Circle, and Youssef Jabareen from the Arab Center for Law & Policy.]  Many of the Israelis (Jews) that we met were committed to the concept of peace and, likewise, were very open minded and tried to present fair assessments of how the conflict affects everyone involved.  I felt that I got a very good sense of the conflict from the Israeli perspective, but we often got the Palestinian and Arab Israeli perspective through the lens of an Israeli Jew.  There was something about hearing these concerns from people within the affected community that made me want to pay attention.  For me, understanding the human rights concerns that the Arab population in Israel faces  helps me to understand a facet of war that I have never been able to relate to.

Essentially, Israeli (Jews) are concerned about safety.

They have a fully formed and functioning country based on Jewish ideals . . . exactly what they envisioned when they fought for independence in the 1940’s.  My impression is that Israelis don’t care much about whether Gaza and the West Bank become part of Israel . . . IF turning over the land would mean peaceful borders and interactions between the residents.  I can relate to the desire for safety.  I’ve lived in a post-9/11 world filled with Level Orange Alerts and near-body cavity searches to board airplanes.

I have much more difficulty relating to a systematic cycle of discrimination and segregation that I liken to conditions in the South pre-1950’s.  The closest comparison I can make is to the segregated inner-city neighborhoods that populate the schools I’ve been privileged to teach in.  After championing myself as a forward-thinker in the area of diversity, the most surprising moment of self-awareness on the trip was walking through the Arab markets in Jerusalem and realizing how tense I felt.  I was hyperaware of cars with a junk-loaded back seat.  I felt nervous when I heard Arab shop owners yelling to each other in Arabic.  I think this anxiety stemmed from a combination of being among a culture that was completely unlike my own and thinking of all the images of terrorists I’ve seen on TV and in the movies.

When I took a step back and began meeting our Arab speakers, I could see that there was no need to be afraid.  These people wanted the same thing the Israelis do, a good, safe life.  Suddenly, I could see the cycle.  Not knowing and understanding another culture makes us afraid.  Fear encourages us to separate and discriminate.  Discriminating creates anger.  Anger causes acting out.  Acting out causes fear.  This cycle fuels the Israeli-Palestinian conflict, but also racial, religious, and class tensions here.  The only way to break this cycle is to remove the fear, and to remove the fear, we must understand.  Now, I can’t honestly say that a week in the Middle East has made me fearless, but I can say that I am committed to continuing to try and understand.

Cross posted at Indisputably.

One useful human rights resource is the website of the Human Rights Education Association, an international initiative that serves governmental, inter-governmental, and non-governmental organizations, as well as individuals, who are interested in learning more about human rights.  There are distance learning materials for adults as well as various curriculum resources for educators who want to develop educational materials for children.

One of my subject areas is refugee law. There are only a handful of Supreme Court decisions in the area, but instead of making the selection easier, the paucity of case law only made it harder to choose one case as the “most” important.  Because the Court has interpreted the Refugee Act relatively rarely, each of its decisions in the area has taken on even more significance than it might otherwise have had.  For instance, it is difficult to overstate the impact of the decision in Sale v. Haitian Centers Council, Inc., the repercussions of which still plague the international refugee law system, because the Court said that the United States could stop and return Haitians at sea, without verifying whether they were refugees, seemingly in direct conflict with the highest principle of international refugee law, “non-refoulement,” or, “non-returning,” of refugees. And what about the pair of cases, INS v. Stevic and INS v. Cardoza-Fonseca, which, prior to Sale, held that the Refugee Act  created two distinct categories of refugees, those whom the U.S. had promised not to return to their persecutors and those whom the U.S. could, in its discretion, allow to stay in the U.S. (a distinction generally not recognized by any of the other nations who signed the refugee treaties)?

In the end, of course, it’s impossible to identify a single case as most important. But I decided to write about INS v. Elias-Zacarias, 502 U.S. 478 (1992), because its holding, that an asylum applicant must provide direct or circumstantial evidence establishing the alleged persecutor’s motivations, has had such dramatic, and (I hope) unintentional impacts on refugee law and practice in the United States.  One could even argue that the extreme disparities in judges’ decisions in similar asylum cases stem, at least in part, from the near-impossibility of reliably applying Elias-Zacarias‘s demand for evidence of the persecutor’s motive, in the context of the record that can reasonably be developed in the vast majority of asylum cases.

I am starting with a short, oversimplified discussion of refugee law, for context; if you already know the basics of refugee law, skip this paragraph.  In the wake of World War II, most of the nations of the world signed on to a pair of treaties that defined a refugee as (essentially–remember, I’m oversimplifying) someone who “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”  The United States eventually agreed to the treaty, and in 1980 Congress passed legislation that adopted a virtually-identical definition of “refugee”: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .”   8 U.S.C. § 1101(a)(42)(A).  The U.S. law further provided that an alien who met the “refugee” definition could (subject to a number of limitations not relevant here) be granted permission to stay in the United States, as an “asylee.” See 8 U.S.C. § 1158.

The majority opinion in INS v. Elias-Zacarias, written by Justice Scalia, in interpreting of the words “on account of . . . political opinion,” upheld the denial of an asylum application filed by a young Guatemalan, Jairo Jonathan Elias-Zacarias.  Jairo sought asylum in the United States after a group of armed, masked guerrillas visited his home in late January 1987, asking him to join their cause.  When he refused to join them, the guerrillas said that Jairo should “think it over” and that they would return.  Jairo fled his country in late March 1987.

The Immigration Judge found Jairo to be a credible witness, and (notwithstanding a side dispute as to whether the State Department had conceded that guerrillas in Guatemala were engaging in forced recruitment) there was no real question as to the plausibility of Jairo’s fear, given the conditions in Guatemala at that time.  In its holding, the Court assumed that Jairo might, indeed, be killed by the guerrillas if he returned to Guatemala but refused to join them.

Instead of questioning the plausibility of Jairo’s fear of being killed, the Court reasoned that, in any event, even if Jairo was right to fear that the guerrillas would kill him if he refused to join, he was not a “refugee,” because he couldn’t establish that the guerrillas’ threats were “on account of” any political motive.  This holding is set forth in two paragraphs near the end of the majority opinion:

Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a “narrow, grudging construction of the concept of ‘political opinion,’” . . . would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a “well-founded fear” that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at all.

Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he must show that the evidence he presented was [footnote omitted] so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done.

Elias-Zacarias, 502 U.S. at 483-84.  Many commentators found that reasoning unpersuasive, and if a student had written those paragraphs in a memo in one of my legal writing classes, I think I would have commented something to the effect of, “conclusory, unpersuasive–avoids the other side’s argument, justify your reasoning with more thorough explanation.” The three dissenting Justices (Stevens, Blackmun, and O’Connor) were particularly incredulous of the majority’s assertion that Jairo had failed to provide any evidence of that the guerrillas  had a political motive:

It follows as night follows day that the guerrillas’ implied threat to “take” him or to “kill” [Jairo]if he did not change his position constituted threatened persecution “on account of” that political opinion. As the Court of Appeals explained in Bolanos- Hernandez:

“It does not matter to the persecutors what the individual’s motivation is. The guerrillas in EI Salvador do not inquire into the reasoning process of those who insist on remaining neutral and refuse to join their cause. They are concerned only with an act that constitutes an overt manifestation of a political opinion. Persecution because of that overt manifestation is persecution because of a political opinion.” 767 F. 2d, at 1287.

It is important to emphasize that the statute does not require that an applicant for asylum prove exactly why his persecutors would act against him; it only requires him to show that he has a “well-founded fear of persecution on account of . . . political opinion.” . . . Because respondent expressed a political opinion by refusing to join the guerrillas, and they responded by threatening to “take” or to “kill” him if he did not change his mind, his fear that the guerrillas will persecute him on account of his political opinion is well founded. [footnotes omitted]

Given the context in which the refugee treaties were negotiated and drafted, I find the dissent’s statutory interpretation argument more convincing.  It seems most likely to me that the drafters would have considered a human being who fled from forcible recruitment by a rebel army that his government couldn’t control to be a “refugee,” given the reasonable likelihood that the guerrillas would actually carry out the implied threat of execution.

While the majority opinion’s disdain for the importance of addressing the other side’s best arguments is disappointing, the opinion’s rhetorical failings are relatively unimportant. Instead what’s most troubling about the majority opinion in Elias-Zacarias is its very concrete, practical impact upon an alien attempting to establish his or her status as a “refugee.”  I ask my students to imagine themselves as lawyers representing an alien like Jairo after the Court’s decision in Elias-Zacarias.  What can you do?  Is there any reliable way to succeed with a case like Jairo’s after this decision?

It is true that in a few types of cases, the persecutor’s motivation will be obvious and easy to prove.  For instance, anti-Semitic statements made during persecution would (seemingly) unequivocally establish a persecutor’s anti-religious motivation.  Likewise, the government’s imprisoning of the leader of a peaceful, opposing political party on grounds of  danger to the State would probably establish an express political motive.

The trouble is that nowadays, most of the human beings who are forced to flee their homelands due to fear of imprisonment, torture, or death escape from confusing situations of civil strife and state failure.  Like Jairo in 1987, many of them are caught between two or more extremist groups, the government on the one hand and one or more rebel groups on the other.  Unless they are “lucky” enough to fall into an ethnic or social group that news reports establish has been specifically targeted, they will be deemed mere victims of “generalized civil strife” rather than “refugees.”

The practical reason for denying refugee status to those fleeing civil war is obvious; it’s the fear of “opening the floodgates” to the thousands of human beings who typically flee from situations of civil strife or state failure.  But while the particular legal justification that the Court used to “bar” the gates (heightening the refugee’s burden to establish the persecutor’s motives) has indeed barred thousands of refugees’ claims, this result was achieved by sanctioning an arbitrary, unpredictable decision-making process in the immigration courts.

Because of the procedural posture in Elias-Zacarias, the majority had the luxury to side-step the really difficult question presented by the case:  how in the world is a judge in an immigration court in some office building in the United States supposed to assess, based on an asylum seeker’s testimony and documentary evidence, a far-away persecutor’s particular motives for targeting the applicant? As the Court noted, the decision in Jairo’s case could not be overturned unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”  The majority’s ultimate holding was, essentially, “well, even if the guerrillas did target Jairo because of his politics, he didn’t prove that conclusively here.” In other words, the majority didn’t even hold that Jairo’s evidence was insufficient to establish that the guerrillas had a political motive; instead, the Court assumed, without deciding, that in Jairo’s case, the court below could have decided either way.

Nowhere in the majority opinion does the Court express any concern for the prospect that a human being’s physical safety, even his or her life, would in the majority of cases depend on a fact-finder’s determination of whether he or she had sufficiently proved via “direct or circumstantial evidence,” the persecutor’s specific intent.  It should surprise no one that, under this standard (and, obviously, in the context of numerous other factors including the crushing caseload faced by our immigration judges) the result has been what a 2007 law review article labeled “refugee roulette.” The majority opinion in Elias-Zacarias affirmatively sanctioned such a state of affairs.

There is plenty of room for debate about the goals of refugee law, and the proper means for achieving them.  Indeed, the need for strong, serious debate about these issues is pressing, given the failings of the current legal regime governing protection for forced migrants.  But no matter how narrow one thinks the definition of “refugee” should be, surely, it should be narrowed on some fairer and more consistent basis than the holding in Elias-Zacarias.

My contribution this week to our “best of the blogs” feature (which I have taken license to interpret as “best of the blogs and other news read online…”) is even more random than usual.

First, the drug-related story that caught my eye in the relatively recent past.  The Daily Beast Cheat Sheet reported on September 27th about a Cato Institute study showing that since Portugal decriminalized drug possession in 2001, drug use among adolescents has fallen, HIV infection rates fell, and addicts have increasingly sought help to overcome their addictions.  The full story was in Time, here. An excerpt:

The Cato paper reports that between 2001 and 2006 in Portugal, rates of lifetime use of any illegal drug among seventh through ninth graders fell from 14.1% to 10.6%; drug use in older teens also declined. Lifetime heroin use among 16-to-18-year-olds fell from 2.5% to 1.8% (although there was a slight increase in marijuana use in that age group). New HIV infections in drug users fell by 17% between 1999 and 2003, and deaths related to heroin and similar drugs were cut by more than half. In addition, the number of people on methadone and buprenorphine treatment for drug addiction rose to 14,877 from 6,040, after decriminalization, and money saved on enforcement allowed for increased funding of drug-free treatment as well.

The article notes that U.S. policymakers are taking notice of Portugal’s experience, especially in view of the spiking violence related to the drug trade in the U.S.-Mexico border region.  If you are interested in news and analysis of the situation in Mexico, you may want to read this piece in the New York Times.

It wouldn’t be a Jessica-Slavin-best-of-the-blogs post without some reference to an immigration-related story, would it?  The blogosphere took notice (and in some cases, an unfortunate degree of schadenfreude) of the Nation’s report that Lou Dobbs, well known for his concerns about the number of undocumented immigrants working in the United States, himself “has relied for years on undocumented labor for the upkeep of his multimillion-dollar estates and the horses he keeps for his 22-year-old daughter, Hillary, a champion show jumper.”

The title of the article labels Dobbs a hypocrite, but that kind of name-calling seems distracting and beside the point.  The larger and more important consideration that Dobbs’ situation highlights, to me, is how the attempt to brush this segment of our society out of the political picture with the label “illegal” is doomed, eventually, to failure, because it ignores reality:  these so-called “illegal” immigrants are deeply integrated into U.S. communities and the U.S. economy, to our mutual benefit.

Now, finally, the promised “death ray” story!  Engadget reported about the Vdara hotel on the Las Vegas strip and the unfortunately unforeseen side effect of its distinctive “curved mirror” design in the hot desert sun.  ABC News quoted one victim’s experience:

“I’m sitting there in the chair and all of the sudden my hair and the top of my head are burning,” Pintas told ABC News. “I’m rubbing my head and it felt like a chemical burn. I couldn’t imagine what it could be.”

It turns out that what Pintas felt was, as a reporter on a video on the ABC site called it, “laser-like beams” created when the hotel windows focus the sunlight and reflect it into the hotel’s outdoor pool area.

The ABC video includes footage of a plastic cup melted by the heat.  I am already dreaming of a legal writing problem focused on the potential legal claims that could arise from the unintended “death ray” effect created by this type of window….

Bertha Oliva is the General Coordinator of the Committee of Families of the Detained and Disappeared in Honduras (COFADEH). COFADEH is a Honduran non-governmental organization committed to fighting human rights violations. Ms. Oliva, along with others, founded COFADEH in 1982 to seek justice for the individuals who were detained, disappeared, and killed by Honduran death squads. COFADEH now investigates and documents human rights violations, represents victims of human rights violations, and educates the public on human rights issues.

Ms. Oliva spoke about the ongoing human rights violations in Honduras, particularly the violations that occurred (and continue to occur) after the coup d’etat last June. She described daily violence and threats that she, members of COFADEH, and other members of the resistance movement face because they oppose the post-coup government. Specifically, Ms. Oliva told about the rape of women, forced kidnappings, and the murder of resistance movement members that have become commonplace in Honduras. Additionally, resistance movement groups, including COFADEH, have been the victims of tear gas raids and attacks. 

Ms. Oliva also addressed the measures taken by the Honduran government, which in her view have been ineffective. She stated that the individuals responsible for investigating and prosecuting human rights violations were all members of the post-coup government, and were interested in supporting the post-coup government, rather than discovering the truth. According to Ms. Oliva, the state-sponsored Truth and Reconciliation Commission (CVR) is not actually seeking the truth about human rights violations by government officials, nor is it attempting reconciliation with the victims of those human rights violations. COFADEH and other organizations have created their own truth commission, dedicated to researching and documenting human rights violations.

Ms. Oliva noted that COFADEH has attempted to bring numerous charges against the perpetrators of the human rights violations. These charges were first brought through the Honduran justice system, without any success. Having exhausted their domestic remedies, COFADEH and other organizations then turned to the Organization of American States, specifically, its Inter-American Commission on Human Rights (IACHR). Although some Precautionary Measures have been issued by the IACHR, the Honduran government has not cooperated with these measures and requests by the IACHR to protect Honduran citizens.

COFADEH recently spoke out against proposals for an International Commission Against Impunity in Honduras, citing the failure of the Commission of Verification established by the San José-Guaymuras Accords and the CVR. It also noted the problem with using coup leaders and members of the post-coup government to investigate claims brought before the Commission for Truth and Reconciliation. It is COFADEH’s position that the legal authority to investigate and prosecute human rights violations must be held by individuals who were not a part of the coup or the post-coup government.

Ms. Oliva’s presentation was both insightful and troubling. It is easy to simply believe a situation has gotten better because it no longer dominates the headlines. Although most people are aware that a coup occurred last summer in Honduras, few outside of Honduras, it seems, know of the ongoing human rights violations and failure of the post-coup government to address them. The unfortunate truth in Ms. Oliva’s message, confirmed by IACHR statements and Precautionary Measures, is that the situation in Honduras is not “back to normal” and human rights violations continue to occur, without any recourse from the Honduran government. COFADEH has undertaken to document these violations and raise international awareness about the need for independent investigations in Honduras.

Ms. Oliva urged us all to contact our representatives and demand the U.S. put pressure on the Honduran post-coup government to comply with OAS injunctive measures and put an end to the human rights violations. Furthermore, Ms. Oliva reiterated the need for independent investigation into the human rights violations. Regardless of official U.S. policy towards the post-coup government of Honduras, ongoing human rights violations cannot be ignored. Countries around the world, including the United States, have committed to promote and protect human rights. It makes sense to encourage the development of an independent organization to investigate the human rights violations in Honduras. I think Ms. Oliva is right – the only answer to the situation in Honduras lies outside of the country now. As the Honduran government continues to perpetrate human rights violations, international pressure is the next step.

We were so fortunate to be able to host Ms. Oliva. Her story is compelling, and her dedication to fighting human rights violations in Honduras is incredible. On behalf of the International Law Society, and as a member of the MULS community, I’d like to again thank Bertha Oliva for speaking to us.

Today  (Monday, October 4^th) the National Lawyers Guild student chapter hosted human rights attorney Eric Sirotkin to give a talk on “Lawyering for Human Rights in the 21^st Century:  Journey from Soweto to Pyongyang.” Mr. Sirotkin’s inspiring talk about his own work in Latin America, Africa, and Asia communicated the important role of lawyers in peacemaking around the globe.   As Executive Director of the Ubuntuworks Peace Education Project, he was able to offer students practical advice on how to use their legal skills to be compassionate advocates.   Mr Sirotkin will be dining with MULS students this evening to continue the dialogue on how to work with and for people around the world seeking peace.

Tomorrow (Tuesday, October 5, at noon)  the Dispute Resolution Society & the Association for Women in Law will host Lucy Reed, a partner at the international law firm Freshfields Bruckaus Deringer and head of their international arbitration group, to hear her talk “Women & Negotiation:  Lessons Learned From Around the World.”

Finally, on Wednesday (October 6, also at noon), the International Law Society will host Bertha Oliva, General Coordinator of the Committee of Families of the Detained and Disappeared in Honduras (COFADEH), who will be sharing her story of three decades of searching for truth and justice following the disappearance of her husband.

In many ways this spontaneous ordering of events amounts to a thematic international law week, with the fortunate result of the world coming to MULS.

The portrait uniquely places Lincoln reading the newspaper within a horizontal vista next to stacks of books which represent the learned man on his campaign trail many days before he became the sixteenth president of the United States.  Professor Michael McCrystal explains that MULS commissioned this painting of Lincoln to symbolize the importance of reading: “Although we mean the building to be very contemporary in most respects, the intent of the reading room is to draw on strong academic and legal traditions to inspire students to serious work, and a Lincoln portrait seemed to serve this theme.”

The image seeks to capture Lincoln the great lawyer and the great reader.  It also serves as a reminder that the former president spoke of the importance of reading when on September 30, 1859 he addressed the Wisconsin State Agricultural Society, right in the same spot where the Marquette campus now sits.  On that day, Lincoln remarked,

“A capacity, and taste, for reading, gives access to whatever has already been discovered by others. It is the key, or one of the keys, to the already solved problems. And not only so. It gives a relish, and facility, for successfully pursuing the [yet] unsolved ones.”

The idea of learning the answers to old problems rings true today, as an appreciation for Lincoln’s legacy knows no borders and continues to teach important lessons across the globe.  Indeed, Lincoln offers a vision for countries seeking to recover from devastating internal armed conflicts.  Pollack’s own painting joins the collection of hundreds of portraits of Lincoln hung on walls around the world, from Italy and Germany to Ghana and Vietnam.  As the artist explained at the unveiling, “Lincoln is not a static memory” but rather a contemporary example of a “great unifier” for countries dealing with internal division and tension.

Pollack himself learned about Lincoln’s legacy while attending the Global Conference on Abraham Lincoln at Oxford University in July 2009.   He recounted the opening remarks made by Ellen Johnson-Sirleaf, president of Liberia who offered Lincoln as a “contemporary model for a nation in transition” drawing parallels between the Civil War and Reconstruction in the United States with the current struggles of her own country to recover from a fourteen year internal armed conflict.  Pollack explained that for Johnson-Sirleaf, Lincoln represented the possibility of wisdom, tolerance, optimism and hope.  But above all else Lincoln’s experience teaches other countries that out of ashes countries can build the rule of law and a culture of human rights.   These are possibilities that we take for granted but which in countries like Liberia must be built from the ‘ground up’.

Johnson-Sirleaf, who received her B.A. from the University of Wisconsin in 1964, inherited a country devastated by ethnic war led by Charles Taylor who now stands trial for war crimes before an international tribunal.  Taylor went into exile in 2003, allowing the country to sign peace accords with rebel groups and eventually establish a Truth and Reconciliation Commission which released its report in 2009 (https://www.trcofliberia.org/reports/final).

In my own Transitional Justice course, I teach not only about countries like Liberia but also about our own Civil War and the struggles of Lincoln.  I save this topic for last, however, to allow the students to appreciate that we, like so many nations across the world, also had to struggle for these principles.  At the same time, I try to convey to the students that the quest for tolerance, peace and human rights never really ends and that we must be constantly vigilant to practice law in a way that both celebrates and protects these values.

This lesson arises not only from the books we read, but the art we view.  Pollack’s other portrait of Lincoln (image at right; painting at the Abraham Presidential Library and Museum in Springfield, Illinois) is based on Gilbert Stuart’s unfinished Washington Athenaeum portrait.  Pollack explains, “It is a finished painting meant to look unfinished and intends to point towards our history, as well as Lincoln’s (and our) unfinished civic work.”

Indeed,  Lincoln’s legacy includes both solving some of the most pressing problems in our history, but leaving still those “unsolved ones” for new generations to attend to so that Lincoln’s vision remains an inspiration for others around the world.

The increased success rate is surely due to the fact that more asylum seekers are finding legal representation:  as the study explains, unrepresented asylum seekers have a success rate of about 11%, while those with attorneys have about a 54% chance of winning asylum.  The study also shows that the dramatic disparities in grant rates by different judges continues (e.g., in the New York Immigration Court, judges’ asylum grant rates ranged from 6% to 70%).

In any event, the other statistics referred to in that WSJ Law Blog post are from a Pew Hispanic Center study showing a dramatic decline in the population of undocumented immigrants in the United States over the past few years.   ImmigrationProf’s take on this data is that “It’s the (Labor) Market, Stupid.” In related news, Edward Schumacher at the Washington Post shared data that he received from the chief actuary of the Social Security Administration that undocumented immigrants’ contributions to Social Security  represent between 5.4 and 10.7 % of the fund’s total assets, roughly twice as much as previous estimates.  The decline in the undocumented population thus increases the Social Security trust fund’s solvency crisis.

There were a few other interesting legal developments in immigration law this week.  The Ninth Circuit, in a 2-1 decision, overturned the conviction of a humanitarian border activist, who had been convicted of littering because he left water in the Arizona desert, in an effort to prevent migrants from dying of thirst.  As the court explained,

Millis concede[d] that he placed water on refuge trails, but argue[d] that his conduct did not violate § 27.94(a) because the bottles of purified water did not constitute “garbage, refuse, sewage, sludge, earth, rocks, or other debris” within the meaning of the regulation. The United States counter[ed] that the bottles constitute “garbage.”

The majority, applying the rule of lenity and the ordinary meaning of the word “garbage,” decided that it was ambiguous whether jugs of water left for human beings to drink in the desert were “garbage,” and therefore threw out the charges.  The dissenter, Judge Jay Bybee would have upheld the conviction, unconvinced that there was any ambiguity as to whether leaving the bottles of drinking water in the desert was “littering” or the discarding of “garbage.”  David Luban over at Balkinization couldn’t help but point out that this same Jay Bybee “thinks that terms like ‘torture’ and ‘severe suffering’ are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.”

And I cannot help but point out that 170 human beings have already died trying to cross the border this year, mostly due to heat-related illness.

In other news, there were a couple more skirmishes in what seems to be a brewing battle over the vitality of Plyler v. Doe.  Seton Hall University Law School’s Center for Social Justice filed an amendment to its claim against the state of New Jersey for its new policies eliminating Medicaid benefits for some legal immigrants. And the DOJ reportedly has sued a network of Arizona community colleges because they required noncitizens to provide their green cards in order to be eligible for hiring.

Finally, a busy week for the DOJ:  the agency just filed a new lawsuit against Sheriff Joe Arpaio, seeking declaratory and injunctive relief forcing the Sheriff to cooperate with the DOJ’s investigation into national origin discrimination that allegedly pervades the Sheriff’s police and jail operations.

If you read this blog regularly, you will not be surprised to learn that abolishing birthright American citizenship seems like a terrible idea to me.   One more sally in the current  assault against immigrants, against the “other,” along with the police checkpoints for schoolchildren walking to school near the border, the Arizona law, the “deportation madness,” and the opposition to building mosques.  What’s more, it would be a terrible development for our society, a recipe to increase crime and instability, by enlarging and making permanent the underground world of people who reside here, even were born here, but are afraid to interact with the legitimate authorities and institutions of our society.

One of the more interesting blog posts about the Fourteenth Amendment controversy was posted by three law professors (Paul Finkelman, James Anaya, and Gabriel Chin) at the Huffington Post a couple of days ago.   They offer strong, well-supported historical, legal, and political arguments against the proposal.  But what’s most striking is their personal appeal–each of these professors is himself the grandchild of undocumented immigrants.  They write,

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem — if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either.

This admission is a rather dramatic rhetorical move, coming from law professors in the United States.  We lawyers are trained to do just the opposite, for the most part — to craft powerful legal arguments that give the audience an image of the worst consequences of the law we oppose, while avoiding any personal or individual connection to those consequences.   So the post is interesting from a rhetorical point of view.  The historical and legal argument is strong too, though:

In the past, America has come to regret policies denying citizenship to particular groups, policies like Dred Scott, and the racial tests for naturalized citizenship in force from 1790 to 1952. These policies always rested on the idea that some immigrants — almost always non-white — would not make good citizens. Doubt about the ability of the United States to take in and benefit from every branch of the human family has always been proved wrong, and, we have no doubt, will be here as well.

I came upon another post in the same vein this week, a video on youtube, actually an 1947 U.S. War Department-produced video called “Don’t Be a Sucker” (you can see the original in the internet archive).  The youtube poster has tacked the image of a waving American flag and an admonition to “Never Forget We Are Nothing Without Equality” at the end of the War Department PSA, an addition that actually fits fairly well with the video’s heavy-handed tone.

*The terrific Deportation Madness art accompanying this post is used by permission of the artist Dmitri Jackson and the Texas Observer, where it accompanied an article with the same title, written by Melissa Delbosque.

My International Criminal Law class has 34 students.  There are 15 students from Marquette University Law School, 4 students from the University of Wisconsin Law School, and 4 students from other U.S. law schools.  The remaining 11 students come from law schools around the world, including Germany, Ethiopia, Turkey, Luxembourg, South Africa, Norway, Greece and Brazil.

Giessen is a college town.  It is dominated by University buildings spread throughout the town, much like Madison, Wisconsin.  There are numerous outdoor beer gardens and cafes, and the local population seems to spend much of their time sitting outside and drinking either coffee or beer.  It seems appropriate that the word “Giessen” translates into english as “pouring.”

The course offerings for the Summer Session are quite substantive, and the assigned readings reflect that fact.  For example, my class this morning dealt with head of state immunity and problems of allocating responsibility to government leaders for war crimes and genocidal acts committed by soldiers.  Two of the major developments in International Law over the last decade have been the erosion of immunity for heads of state (even sitting heads of state) and the expansion of conspiracy-based theories of criminal responsibility for international crimes.   

The fact that the students in my class come from around the world can lead to some interesting debates.  Last week we discussed the International Criminal Court (ICC) in the Hague, and it was interesting to hear the different perspectives on whether the United States should join the ICC or not.  Even though the American students are in the majority, I fear that we were on the defensive on that topic.

Despite the hard work and the serious subject matter, it seems to me that our class is off to a good start.  Students in the other classes seem to be having a positive experience as well.  The faculty and staff at Justus Liebig University are incredibly welcoming, and a joy to work with.  And, to top it off, we managed to avoid the great Milwaukee flood of 2010.  This will definitely be a summer to remember.

Andrea suggests that formal adjudication may be necessary to provide a sense of procedural justice in places where the rule of law is not well established.  However, within the United States and other nations where the rule of law is better established, ADR becomes a viable alternative. 

Although there seems to be an inevitable shift to consensual dispute resolution after formal adjudication mechanisms are set up, Andrea worries that this shift may sometimes happen too quickly, particularly with respect to human rights disputes — “consensual dispute resolution [may become] just another set of processes to be abused by those with power.”

This is just one dimension of the article, which contains many interesting reflections on the present and future of international dispute resolution.  Entitled “Bargaining in the Shadow of (International) Law: What the Normalization of Adjudication in International Governance Regimes Means for Dispute Resolution,” the article is available here on SSRN.  It was published at 41 N.Y.U. J. Int’l L. & Pol. 789.  The abstract appears after the jump. 

After examining the similar goals and values that drive the simultaneous increase in international trials and the decrease in U.S. trials, the article then examines the challenges international adjudication poses to dealing with human rights violations and transitional justice situations. Simplistically, these tensions can be viewed as the need to strike a balance between peace and justice, top-down implementation and bottom-up impact, and process efficiency and conflict customization. The good news is that these challenges have been slowly working themselves out as the next generation of international adjudication models continues to improve. This continued improvement and normalization leads to an even more interesting question — what are the possibilities for human rights adjudication in the future? What happens when countries and individuals are bargaining in the shadow of international law? The last part of this article, looking through the lens of dispute resolution theory, addresses at least two intriguing developments that could occur in the next ten years. The first development might be the normalization of consensual international processes that mirror, at least to some degree, U.S. process. After moving away from negotiation toward judicialization of international disputes, the pendulum might start to swing back toward negotiated settlements. Will individual defendants be more likely to plea bargain (as has already occurred)? Will states be willing to work out settlements with their human rights victims prior to trial? Given the potential risks involved in these developments, the international community needs to be vigilant so that the rule of law, rights, and equality are still protected through these consensual dispute resolution processes. Second, the shift to broad community reparations like health care and education ordered by tribunals and truth commissions opens up a new chapter in more appropriate remedies for human rights victims.

His rhetorical approach was really effective, I think, so I am going to copy it: starting with a concession to gain your trust, before pointing out the flaw I see in Rick’s argument.

First concession:  I agree in principle that “[m]ass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate.”  I also agree wholeheartedly that political arguments these days are just about as likely to devolve into irrational hysteria, closed-mindedness, and outright bias on the left as on the right.

One example that comes to mind is the debate about the merits of nuclear power.  Though I tend to agree that maybe nuclear power isn’t so bad after all (or that at least, scientists should figure that out rather than unthinkingly conflating nuclear energy with nuclear weapons), the anti-nuclear power arguments are so fervent that I was hesitant to even admit to that opinion in this public forum.

And I agree with Rick’s argument about the protests about the Arizona law to the extent that anyone has said that they make Arizona “evocative of Nazi Germany and Communist Russia.”

But calling the Arizona law “racist” or “hysterical nativism”?  I don’t think analogizing these labels to “socialized medicine” or “death panels” is accurate.  As the foreign-born Governor of California recently (jokingly) pointed out, the Arizona law does put anyone with a foreign accent at risk of being detained and deported on suspicion of being a non-citizen. So, while Rick is right that it’s true that non-resident aliens are required to “carry documentation at all times,” that’s beside the point.  The trouble is that in practice, on what basis will the Arizona law enforcement officials form the reasonable suspicion that someone is an alien, instead of a citizen?   What else will they have to rely upon, besides skin color, other physical characteristics, and accented speech?  Those oval white country code bumper stickers?

Thus, the situation in Arizona, for those citizens who bear the characteristics that might lead Arizona law enforcement officers to suspect they are not citizens, does seem undeniably “nativistic.”  Indeed, while I wouldn’t make a broad analogy to the atrocities of Communist Russia, the travel situation for those folks in Arizona does seem, to this former Russian and Soviet Studies student, quite similar to the travel situation in the former Soviet Union; you’d better have your papers with you.  If the Arizona law were to be enforced as its plain language permits, some United States citizens, those who match whatever criteria the Arizona officers think creates a reasonable suspicion of “being an alien,” will need, basically, internal passports.

Indeed, even without the sort of stamp of approval that Arizona’s legislature has passed, those folks would probably already be wise to carry around their proof of citizenship.  Many citizens of the United States are already being wrongfully arrested, detained, and even deported, based upon immigration officials’ erroneous conclusion that they are non-citizens.  In fact, right here in Wisconsin, a McHenry county man has recently filed suit against law enforcement officers there, claiming that they falsely imprisoned him on suspicion that he was an illegal immigrant, refusing to release him even when his brother came to the jail with his naturalization certificate.  It cannot be a surprise to anybody that the citizens suffering these harms are, disproportionately, non-white.

In summary, I welcome conversation about the tone of political conversations these days.  I am a fan of really listening to the other side.  But once in a while, a law actually is racist and nativist, and I think the Arizona law is undeniably one of those.

Non-governmental organizations that work to end the phenomenon of child soldiers call the day “Red Hand Day”, and the photo above shows activities in Goma, in Congo DR, marking Red Hand Day in 2008.

An open debate on children and armed conflict in the Security Council last April raised interesting issues.  Radhika Coomaraswamy, the Secretary General’s Special Representative for the issue of children and armed conflict emphasized that the abuse and exploitation of children during armed conflict goes far beyond their recruitment as fighters:

Ideally, the list of the Secretary-General should include all grave violations against children to ensure that the framework for protecting children in situations of armed conflict is comprehensive. However, expectations do not always match realities, and therefore, the UN and its partners have chosen to call upon the Council to take a gradualist path for the expansion of the protection framework for children. This is why the child protection community is unanimously calling on the Council to begin, at a minimum, with expanding the listing criteria to include parties that commit rape and other grave sexual violence against children as a first step in this incremental approach. The inclusion of killing and maiming of children in line with international humanitarian law would also be an important contribution to protecting children. This would be a critical step forward, recognizing that sexual violence and intentional killing and maiming are  heinous crimes on par with the recruitment and use of children.

As I was writing this blog post this morning, my six-year-old son asked me what the people in the photo above were doing.  I explained that they were working together to stop the use of child soldiers.   He asked, “Child soldiers?  How could an army get child soldiers?  They could go to the child and say, “excuse me, we would like you to help us with our fighting please,” but the child could just say, “No, thank you.”  I explained the use of violence to force children (and other people) to do things they don’t want to do.

In my refugee law seminar, we have been discussing the status of child soldiers in refugee law.  As another blog post sums up, child soldiers are in a double bind.  First, they often have trouble proving their status as refugees, because their status as “children” is fleeting.  If you survive your life as a child soldier, you become an adult, probably a former child soldier.  And unless you can show that you face persecution on account of your status as a former child soldier, you do not fit the legal definition of a “refugee.”  Furthermore, under U.S. law, your actions as a child soldier will surely qualify as persecution of others, or terrorism, or at least material support for terrorism, making you ineligible for refugee protection, unless you receive a discretionary waiver of that bar.  It is discouraging, how quickly the law’s empathy for children’s vulnerability and exploitation changes, once the children become adults.

You’re looking at it the way President Barack Obama does – which is “almost entirely inside out and upside down,” Weigel said in a lecture sponsored by the student chapters of the Federalist Society and St. Thomas More Society.

Weigel, a distinguished senior fellow of the Ethics and Public Policy Center in Washington, D.C., is author of a widely read biography of Pope John Paul II and other books and a commentator on NBC on Catholic news.

He gave Obama credit for using Nobel Peace Prize speech recently to discuss the need to go to war against evil that exists in the world, but he said the underpinning of Obama’s justification of war was built too heavily on factors that were of lower priority than the main pillars of the subject in thought going back to St. Augustine. 

Those factors include regarding military action as a last resort or something that should only be used to respond to aggression.

As Weigel put it, Obama and others view the concept of just war as a way of setting up hurdles before a war can be launched. He said traditional thinking views the concept of just war as a theory of governance under which a legitimate authority has an obligation to build and defend a society based on justice, freedom, security, civil unity, and peace.

Weigel said the first question to be considered in determining whether a war is just is whether the government involved has the moral authority to use force. For example, he said, the president of the United States has such authority while Osama bin Laden does not.

The second question is whether such an authority is pursuing a just cause.

And the third question is whether the war is being pursued with the right intentions, including the furtherance of a moral, secure peace.

Weigel urged his audience to “ramp up our thinking about those three questions” in deciding whether military action is just. Other factors, such as using war as a last resort, are also part of the picture, but should play a lesser role, he said. He said this approach might serve well in making decisions about what to do about nuclear threats from Iran or North Korea.

Did Obama’s Nobel Price speech revive moral reasoning about just wars or harm the development of such thinking? Weigel said, “The answer tilts toward the second possibility.” He gave Obama credit for startling “appeasement-minded elites” in Europe with the notion that there is evil that needs to be fought, but the president’s concept of just wars was not anchored in the key questions Weigel listed.

Lisa, commenting on the recent film Men Who Stare At Goats, asks if we are Cassidy or Hooper? I haven’t seen the movie, but the question strikes me as too simple. We are  both and perhaps we should be.

What I have found frustrating in the debate over torture and interrogation is the failure of both “sides” to draw potentially relevant distinctions and to speak clearly. For example, what does it mean to say that the Bush administration “regularly” engaged in torture? There is certainly no evidence that it “regularly” engaged in waterboarding. To make that claim seems to require the adoption of a highly controverted definition of torture. (In fact, there does not even seem to be a consensus that waterboarding is torture, although I think it is.)

This is not to say that it is unreasonable to regard techniques such as sleep deprivation or stress positions as torture – only that the question is subject to dispute and may depend heavily on an assessment of rather unpleasant facts.

Indeed, it is the unpleasant – the “icky” – nature of the question that often causes us to retreat behind labels like “torture” or “enhanced interrogation.” Indeed, it is the engagement with the question that makes the DOJ memos so hard to read.

There are two ways to avoid those questions. At one end of the spectrum, some argue that the imposition of any pain or significant physical discomfort so dehumanizes both the interrogator and the interrogated that it ought never to be done. For such folks, the threshold for what constitutes torture may be relatively low (or at least much lower than that reflected in the DOJ memos) and it is largely irrelevant whether torture “works.” In fact, it seems to me that this position is akin to pacifism in that it completely rejects consequentialist reasoning.

At the other end are those that regard the latter perspective as a form of moral cowardice. On this view, the infliction of pain or discomfort on a wrongdoer might be justified if it is sufficiently likely to save innocent lives. For these folks, the question of whether torture – or, as they will call it, ”enhanced interrogation” - works is of primary importance.

The problem, I think, is that most people are somewhere between these two views. They acknowledge the dehumanizing nature of torture but might allow certain forms of “enhanced interrogation” if it is sufficiently likely to avoid dire harm. This is where we encounter pragmatic modifications of our extreme views and have to face the facts on the ground.

It is, I concede, an unsettling prospect. It is uncomfortable to embark on a road in which one weighs the benefits of torture against its harm. Can we really trust ourselves to follow any type of moral compass when faced with grave danger? Perhaps it is safer to just place the entire subject out of bounds.

But it seems fantastical to think that any society would abjure torture in all circumstances. As Richard Posner has argued, if a nuclear bomb is hidden in Times Square and we’ve caught someone who knows where it is, that person will be tortured if necessary. This brings us to a set of hypotheticals that have come to be referred to as “ticking time bomb” scenarios.

It seems to me that very few people are willing to say that, rather than waterboard a suspect, we ought to let the ticking time bomb explode. Rather, the arguments seem to be that a “ticking time bomb” scenario “never happens” or that the infliction of pain or discomfort “won’t work.”

The first objection is almost certainly false. I acknowledge that – thank God – we don’t live in an episode of 24. A ticking time bomb scenario may certainly be rare – it would most likely involve apprehending a terrorist suspect in a plot that is underway – but I see no reason to assume that it “can’t happen.”

The second objection also strikes me as false. If, as a categorical matter, the infliction of pain or physical discomfort “never works,” we would not expect to see intelligence agencies wishing, even if only in extreme circumstances, to use it. I am always skeptical of arguments that are based on the assumption that informed actors will continue to behave irrationally. When seeking objectively verifiable information (the interrogated knows he cannot get away with a lie) to avert a developing threat, it may well work. More accurately, it may have a sufficient probability of working in relationship to other potential responses. It may not be possible – there may be no time – to obtain more information from computer hard drives or wiretapping or “empathetic” interrogation.

Some people, like Charles Krauthammer, would extend the ticking time bomb scenarios to circumstances in which a captive person is believed to have extremely valuable information that may avert very substantial threats in which the length of the fuse is uncertain. I take that Krauthammer might argue that in these – still rare – situations, there may be some “enhanced interrogation” techniques that can be regarded as torture (he doesn’t shrink from that term) – such as waterboarding – that might be justified. If we allow for the infliction of pain or physical discomfort in these circumstances, the spectre of the slippery slope becomes larger and closer.

I don’t intend to get into a debate about whether any of these situations were present in any Bush era interrogations. There seems to be substantial difference of opinion on that and I don’t pretend to know who is right.

It does seem to me that well undertaken moral reasoning is likely to lead to reasonable arguments in favor of torture only in the rare circumstances. But it also seems to me that the matter is not quite black and white. It is not a binary choice between Hooper and Cassidy or, to use some popular entertainment that I’ve seen, between Jack Bauer and Senator Mayer. Some might argue that it is safer to have a categorical prohibition of torture knowing that this prohibition will be ignored in extreme circumstances. Maybe. But I tend to believe that the rule of law is better served by intentional policy that sees the world as it is and not how we wish it to be. If we are really willing to let the ticking time bomb explode, we should say so. If we are really willing to allow exceptions to a categorical prohibition of torture, we should say that and be willing to define – and properly limit – those exceptions.

Today Vice President Biden issued a statement marking the occasion:

Violence against women is found in every culture around the world. It is one of our most pervasive global problems, yet it is preventable.  When gang rape is a weapon of war, when women are beaten behind closed doors, or when young girls are trafficked in brothels and fields – we all suffer. This violence robs women and girls of their full potential, causes untold human suffering, and has great social and economic costs….

Indeed, it is hard to overestimate the impact of pervasive violence against women in the lives of women, men, and children all over the earth.  According to a Radio Free Europe/Radio Liberty report,

The UN Development Fund for Women estimates that one in three women around the world has been beaten, coerced into sex, or otherwise abused.

It describes domestic violence against women as perhaps the most pervasive human rights violation known today.

Women are more at risk of death or disability from violence than from cancer, road accidents, war, or malaria.

This year, the UN’s campaign includes a new emphasis on men’s contributions to the efforts to eliminate violence against women, including the establishment of a new Network of Men Leaders, whose members include a wide range of prominent politicians, activists, and other leaders, including Archbishop Desmond Tutu, Spain’s President Jose Luis Rodriguez Zapatero, and author Paulo Coehlo.

The Network of Men Leaders in some ways hearkens back to the White Ribbon Day campaigns that preceded the establishment of the IDEVW in the UN. (You can read a history of White Ribbon Day here at Womankind’s website.)  The Radio Free Europe article explains that today, the international White Ribbon Day campaign “urges men to wear a white ribbon on their lapel to show that they oppose violence against women and children. Started in Canada, the campaign has spread to 50 countries, including Russia, Georgia, Armenia, and Azerbaijan.

Campaign organizers are particularly eager to recruit the support of leading athletes from such “macho” sports as rugby, on the grounds that they can set a positive example for young men to follow.”  For instance, today eighteen teams of New Zealand men ran a race, tied together with white ribbon, to mark this day of protest against violence against women.

Along similar lines, in his remarks today UN Secretary General Ban Ki-moon said that “men must teach each other that real men do not violate or oppress women – and that a woman’s place is not just in the home or in the fields but in schools, offices and boardrooms.”

Broadening the appeal of the campaign to men seems wise to me, and not only because violence against women cannot be reduced without men joining in the effort.  Also because, of course, as one commenter wrote in to Australia’s White Ribbon Day campaign blog, “children, women and men are all entitled to their inalienable human rights and . . . all violence against all people is wrong.”

The exchange in that blog post and the comments that follow, on the question of whether emphasizing the elimination of violence against women does harm to men and boys, is an interesting one, and there are valid points on both sides of that debate. But, in the end, the focus on violence against women, for a part of the year, seems logical, given that there is disproportionately so much more impunity for the perpetrators of violence against women, than for the perpetrators of many other forms of violence. Acts that would be recognized as horrific, anti-social violence when perpetrated against strangers, or for reasons recognized as political, are not viewed as so terrible if perpetrated in the contexts we call “private” or “personal”–within families, intimate relationships, workplaces, even rape.  Focusing world attention on why that’s so can only be for the good.

As with any dark comedy, The Men Who Stare at Goats not so subtly confronts us with the question of our morality, and how much cruel and degrading treatment we can stomach in good conscience.

The quirky tale unfolds when reporter Bob Wilton (Ewan McGregor) encounters Lyn Cassady (George Clooney) who claims to have participated in a U.S. Military experiment to develop the paranormal powers of a group of hand-picked soldiers.   As Wilton accompanies Cassady on an incredulous journey through the arid deserts of Iraq sometime in 2003, he slowly pieces together the past and learns that Cassady took part in the “New Earth Army”,  under the tutelage of Bill Django (Jeff Bridges), who gleaned his training manual from six years of hanging out in “new age” circles.  The soldiers learn to exercise extra-sensory perceptions and telepathy to disarm their enemy, staying faithful to the principle that love and peace prove mightier weapons than hate and violence.

The movie offers a comical view of how straight laced soldiers “find themselves” on the path to becoming “warrior monks”, but soon encounter their nemesis in the form of Larry Hooper (Kevin Spacey) whose dark influence leads Cassady to use his powers to kill a goat with his naked stare.  Disillusioned, Cassady quits the army.   When Wilton encounters him years later, a beaten down Cassady still holds true to his belief in the supernatural and follows a vision to find the long lost Django.

I happened to see The Men Who Stare at Goats  a day after hearing a talk on the topic of torture by Professor Alfred McCoy during the all-day conference: “After the Violence: Crimes, Prosecutions and Then What?”, convened by the University of Wisconsin/Madison Law School.     Ever so predictably, I could not help but ponder over the classic question of “is it art or reality”?  Yet the juxtaposition of the two events brought to fore that the conversation about torture no longer belongs only to academics, but has now become a part of American popular culture.  As a society, we are in the process of grappling with the past, and The Men Who Stare at Goats confronts us with some difficult questions.

To begin, how do we make sense of the revelation that torture was regularly used during the Bush Administration’s war on terror?   Does it mean that torture is just something humans have always done and always will do?  Or is it a human aberration that most humans repel against?    Does the answer to these questions dictate the correct response?:  Turn the page and forget? Or hold the aberrant to account?

McCoy’s own research suggests that the use of torture was not an aberration in U.S. policy, but rather a planned feature.   He meticulously detailed for us, as he has already done in books and articles  , how the C.I.A. has spent billions of dollars since the Cold War perfecting methods of torture in a deliberate and systematic fashion, and it even exported these techniques to allies around the world such as through its School of Americas’ training programs.   In Larry Hooper fashion, the C.I.A. apparently experimented with electroshock, hypnosis, psychosurgery, and drugs (including LSD) on unsuspecting soldiers and civilians.  Yet eventually, the intelligence agency discovered that sensory disorientation (e.g. hooding, sleep manipulation, loud and bright stimulus, isolation) and “self-inflicted pain” (e.g. enforced standing for many hours) more effectively broke down prisoners.   McCoy describes how the use of these “hands-off” psychological attacks on personal and cultural identity, makes a person vulnerable to mind-control techniques.    It seems “no touch torture” ranks up there with “a little dunk in the water”, the infamous reference to water boarding made by Dick Cheney .

McCoy’s detailed study of many of the thousands of photos of torture leaked in May 2009 corroborate the idea that torture was systematic  and not just some sick and random game done by some deranged soldiers.    Yet, I noticed that people seemed almost apathetic to Obama’s attempt to block the release of these photos   .I was reminded of the cynicism of Latin Americans who seem so accustomed to corruption and abuse that they no longer react to new scandal.    Strangely, I felt a twisted nostalgia for the time when many Americans truly believed Defense Secretary Donald Rumsfeld in 2004 when he  dismissed the 2004 Abu Ghraib pictures as excesses done by “by a small number of U.S. military”, or as termed by New York Times columnist William Safire– a few “creeps”.

I will never forget how my own grandmother clung tightly to her faith in our leaders, and seemed incredulous of my own research on how the School of Americas trained the very same Latin American military leaders who used brutality in their own dirty wars.   As frustrating as it was not to be believed, it nevertheless broke my heart to see her so disillusioned soon after the Torture Memos were leaked in 2004.   She served as my barometer of the American public’s coming to terms with our dysfunction, our imperfection, and in many ways our lost innocence.  My experience in other parts of the world has revealed to me our nation’s incredibly unique belief in the good of our democratic system.     In this way, my grandmother –like so many Americans—reflect the idealism of Cassady.

Certainly, The Men Who Stare at Goats involves the classic struggle between good and evil by portraying how a well intentioned experiment went bad.   Hooper eventually becomes a private contractor for the U.S. military, using the information of the peaceful “warrior monks” to develop sadistic approaches to breaking down the enemy, including sensory deprivation and stimulus on detainees in Guantanamo-like orange prison garb.   

While the movie raises moral issues about torture, it does not address whether such interrogation tactics actually work—‘work’, that is, for eliciting valuable military intelligence to staved off future attacks.   Interestingly, the movie seems to assume that the revelation of cruelty inflicted by Hooper will suffice to make the audience despise him and his mission.  Yet, here is where fiction departs from reality. 

Revelations of systematic torture of Guantanamo detainees has not seemed to provoke universal outrage.   In fact, once the Bush administration and its supporters could no longer deny the institutionalized use of torture during the ‘war on terrorism’, the nation did not unanimously condemn this practice as immoral, nor did they universally embrace that torture is prohibited by national and international law.   Instead, the debate turned to whether the means justified the end.    Proponents of “enhanced interrogation” (an euphemism that strips the act of its brutality) argue that as long as it produces useful intelligence, torture is okay and we need not lose sleep.   The slippery slope of this assertion gives me bags under my eyes.  What else will we tolerate that is more “efficient”, even if morally reprehensible and technically illegal?

But alas, the question is now:  Does torture work? Professor McCoy’s own research found little specific factual evidence to prove the “ticking time bomb” rationale for torture (http://www.progressive.org/mag_mccoy1006).   Interestingly, the “ticking bomb scenario” is itself an academic concept first made popular in 1970 by philosopher Michael Walzer  who recognized the moral paradox of political leaders doing “wrong” for a right cause (and who should thus assume responsibility for their choices).   Yet, philosophical ruminations aside, there has been little hard evidence that torture actually has prevented ticking bombs from exploding and saving thousands of lives.   Instead, the sorted stories of new acts of terrorism being prevented  indicate that other types of intelligence work, such as evidence from computer hard drives or the tracing of phone conversations, provided the critical information for averting disaster.   

Torture victims themselves can tell you that torture does not work.   Last year (October 2008), Argentine Patricia Isasa came to speak to my class to discuss her own experience of being tortured when 16 years old and detained on suspicion of terrorism.   She has dedicated the last thirty years to seeking justice (and has seen many of the School of Americas trained soldiers who tortured her go to prison) as well as to educating the world that torture simply does not work. 

She logically explained to us that if a person truly is a part of any type of organized criminal enterprise, the information they hold about a ticking bomb will be immediately rendered useless once their cohorts learn of their capture and change their plans.    It is only those who have no such affiliation that will make false confessions and fabricate information to desperately try to escape near death experiences.    

 Yet, acting on this false information does not always have a negligible effect.  Consider for example the impact of Ibn al-Shaykh al-Libi’s claim that linked the Saddam Hussein government with al Qaeda operatives.  Bush relied on this confession in October 2002 to convince Congress to authorize military action against Iraq, and Colin Powell did the same in February 2003 to make the case for war to the United Nations.  Al-Libi later revealed that he had made this false claim under the duress of torture.   Yet, seven years later, hundreds of thousands of lives later (Iraqi civilians and American service men and women) and no end to the original global threat of terrorism, we should ask ourselves if torture really works.

Then again, the fact that some Guantanamo detainees had to be waterboarded up to 183 times should beg the question whether torture really is the most efficient way to get information quickly enough to stop the bomb from ticking.   

Alternatively, Professor McCoy documents how the “emphathetic interrogation” used by the FBI since 1940 has resulted in far more valuable intelligence information that kept us safer (especially since this approach also avoids creating thousands if not millions of new enemies around the world who hate us only because we condone torture).  
So if the “ticking time bomb” justification for torture doesn’t match up with experience, why do governments resort to it?  McCoy suggests a few reasons.  

For one, he views the human need to grasp for security in the time of crisis: “In sum, the powerful often turn to torture in times of crisis, not because it works but because it salves their fears and insecurities with the psychic balm of empowerment.”    Our most deeply seated need to feel safe can create such intense fear that humans will condone almost anything if it makes them think it will bring them security.

Yet, McCoy suggests an even more irrational and darker reason for torture: it has a “darkly erotic” seductive appeal.   McCoy says that not only the foot soldiers who inflict the pain are enticed by this wicked vice, but even the leaders far from the battle who, upon vivid imaginings of these techniques, approve their use.

I found this view incredibly hard to digest, and adamantly resisted the idea that a principled person could succumb to the evil of inflicting harm on another.    Yet, Cassady epitomized this human frailty when he kills a goat with his stare.   In the movie, he explains to Wilton that when ordered to undertake this assignment, he set out determined to resist it.  But then, all at once, he was overcome by the desire to see if he could in fact kill with his stare.   His encounter with his dark side ultimately defeated him.  It killed a defenseless creature and brought sorrow to his own soul.  And so, in the end, the movie is about Cassady’s seeking redemption.  While I cannot tell you how he does this (lest give away the whole plot) I can suggest that fiction presents yet another troubling human theme.  If we do not condemn the dark side, even when it is too late to prevent the damage, then we may in fact still be succumbing to its seductive appeal.
Here, McCoy explains why we, in whose name torture is performed, should oppose it:   “There’s an absolute ban on torture for a very good reason. Torture taps into the deepest recesses, unexplored recesses of human consciousness, where creation and destruction coexist, where the infinite human capacity for kindness and infinite human capacity for cruelty coexist, and it has a powerful perverse appeal, and once it starts, both the perpetrators and the powerful who order them, let it spread, and it spreads out of control.”

An implicit assumption of McCoy’s recommendation is that we actually have a choice when we face the option to give in –or not– to the “seductive appeal” of the dark side.   Thus, as reflected in Cassady’s struggle, the ultimate issue comes down to choosing between good and evil.   Movies, of course, help to simplify this classic human dilemma.   Yet, in light of contemporary events surrounding the issue of torture, The Men Who Stare at Goats uses fiction and metaphor to confront us with what might be one of the most pressing questions of our time:  As a society, are we Cassady or are we Hooper?