LA Times: Battle in Bush administration over interrogation techniques

The latest (and perhaps final) fight within the Bush Administration concerning the application and interpretation of international law in the context of counterterrorism is recounted in a Wednesday Los Angeles Times story. Here it is:

Reporting from Washington -- As the clock runs down on the Bush administration, moderates within the government are mounting what may be one last drive to roll back many of the harsh detention and interrogation policies pushed through by Vice President Dick Cheney. The effort, led by officials at the State Department, represents the latest battle in a war between hard-liners and moderates that has raged though most of the Bush administration.

In the early years of George W. Bush's presidency, Cheney and his allies won most of the internal contests over the Guantanamo Bay prison, the CIA's interrogation program, domestic spying, military commissions and other contentious issues. But internal critics -- including the State Department's legal advisor, John B. Bellinger III -- fought against those efforts. Buoyed by congressional action and court rulings, the moderates in recent years have helped break down administration resistance to international agreements and standards. The latest push underscores how deeply unpopular the most hawkish White House stances have proved to be even within the administration itself.

President-elect Barack Obama is likely to favor the internal critics' proposals. But the Bush administration moderates want to push the changes through before Obama takes over, in hope of undoing some of the damage they believe has been done.

Bellinger initiated the latest skirmish with a letter earlier in the year urging the administration to follow a broad and detailed set of international minimum standards for the treatment of detainees suspected of terrorism. The move is controversial within the administration in part because of concerns that it could force changes in the CIA's secretive interrogation program. But backers are intent on taking the step to improve relations with allies and allow the U.S. to help shape the debate over how terrorism suspects should be treated.

"We could blunt criticism that the United States takes an opportunistic view of customary law, relying on it as a sword . . . but rarely working to develop it as a source of humanitarian safeguards," Bellinger said in the letter, written to then-Pentagon General Counsel William J. Haynes II, a Cheney ally, in January.

A copy of the letter, which has never been made public, was read to The Times. But neither Bellinger nor Cheney's office would discuss it. A State Department spokesman said only that Bellinger continued to study the issue. Months after Haynes resigned his post, administration officials now are debating whether to follow Bellinger's recommendation on the standard, an addendum to the Geneva Convention officially known as Article 75 of Protocol 1.

Adopting the standard would show that the U.S. has "turned a page" in how it treats detainees, said Matthew C. Waxman, who worked with Bellinger at the State Department before becoming a Columbia University law professor.

"The U.S. used to set the gold standard," Waxman said. "We should strive to get there again by drawing sensible lines and persuading others to use them. And you can't do that if you do not acknowledge the lines exist."

Bellinger, who is close to Secretary of State Condoleezza Rice, has clashed for years with administration hawks, first as the lawyer for the White House National Security Council and then as legal advisor at the State Department. Beginning early in the Bush administration, Cheney's office sought to translate its expansive view of presidential powers into the adoption of harsh interrogation practices, a secret detention system, ad hoc terrorism trials and increased domestic surveillance. The administration argued that terrorism detainees are unlawful combatants not covered by the Geneva Convention.

The policies met with widespread condemnation from American human rights groups and many international leaders. The initiatives also met resistance from high-ranking officials at the FBI, Justice Department, State Department and elsewhere. Even the Bush administration's harshest outside critics believe the internal resistance ultimately had a positive effect. "From the point of the view of critics of the administration, things have been quite bad," said Tom Malinowski, the Washington advocacy director of Human Rights Watch. "The question is, would they have been worse if not for the efforts of more moderate voices within the administration? My gut feeling is they would have been worse."

Article 75 includes provisions designed to ensure fair trials. It also bans corporal punishment, mental torture and violence to the "physical or mental well-being" of detainees. The protocol was never ratified by the Senate. But backers of Bellinger's proposal believe that presidential recognition of the addendum's standards would boost U.S. standing on the issue.

Following three Supreme Court rulings, several new federal laws and an overhaul of the Army Field Manual on Interrogation, many administration policies have been changed. The Pentagon's practices -- including the military commissions at Guantanamo -- are in line with Article 75, officials said. But the CIA program remains secretive. Bush earlier this year vetoed a bill that would have blocked the CIA from using harsh methods such as waterboarding. Formal administration recognition of the international standard, as proposed by the State Department, could force changes.

"If the U.S. were to take the view this is international law, that would apply across the board," said an administration official who, like others, discussed the ongoing debate on condition of anonymity. "Treatment standards within the CIA program would have to be consistent with it, or we would be breaching international law."

At first, Bellinger's letter to Haynes received little attention. In recent months, Sandra Hodgkinson, the deputy assistant secretary of Defense for detainee affairs, took the request to Deputy Defense Secretary Gordon R. England, the No. 2 civilian in the Pentagon. Officials said that England was intrigued by the proposal, but that lawyers at the Justice Department had raised questions about the wisdom of formal recognition. By recognizing the standard as "customary law," the U.S. would be bound to adhere to it, even without Senate ratification. Hodgkinson declined to discuss "internal correspondence" or her role in advising top Pentagon officials. But she said the administration did not have a "unified position" on Article 75.

"That discussion is still ongoing within the government," she said. "There hasn't been agreement at this time about whether it constitutes customary international law." Some officials are concerned that recognition of Article 75 could allow other nations to challenge U.S. detention policies. The addendum contains terms -- like "mental well-being" and "corporal punishment" -- that have been interpreted internationally in ways the U.S. might not agree with, the administration official said.

"There is concern the terms are vague," the official said.

Charles Stimson, Hodgkinson's predecessor at the Pentagon, said that much of the substance of Article 75 had been incorporated into Defense Department policy. While at the Pentagon, Stimson added many of the provisions into Pentagon rules."

I felt very strongly at the time that those were common-sense provisions from Article 75 that we needed to have in there," Stimson said.

Hodgkinson agreed that the Defense Department's detention operations are in compliance with Article 75, something the Pentagon has told allies who have raised the issue.

"Which prompts the question: If you do it, why don't you say it is the law?" Hodgkinson said. "And that is what makes this an interesting discussion."

Anderson: Global Governance: The Problematic Legitimacy Relationship between Global Civil Society and the United Nations

Kenneth Anderson (American Univ. - Law) has posted Global Governance: The Problematic Legitimacy Relationship between Global Civil Society and the United Nations. Here's the abstract:

This essay, intended as a chapter in a book on ethical issues in global philanthropy, analyzes the problematic relationship between the United Nations and global civil society. Offering a brief history of the ideological transformation of international NGOs into 'global civil society', it critiques the idea of global civil society as representing the world's peoples to international organizations. It notes, however, that the idea of global civil society is considered somewhat passe today as a vehicle of legitimacy for global governance - likewise, for that matter, the UN, also somewhat passe in leading intellectual circles as the chosen vehicle for the platonic ideal of global governance. Leading intellectuals of global governance today lean instead toward such ideas as global government networks and other forms of governance that look to technocratic expertise in particular, indeed narrow, areas as their source of (deliberately limited) legitimacy, rather than seeking broad-based political legitimacy for governance. The debate over the legitimacy of the UN via legitimation from global civil society, while of great importance, perhaps, to the UN and to global civil society, appears in important respects to have been by-passed by theorists of the technocracy that has no more 'global' ambition than to ensure that the internet arrives on time. (The essay proceeds through stylized, highly notional time periods as a means to offer a convenient way of characterizing different phases of conceptualization of global governance, global civil society, the UN, and legitimacy.)

Call for Papers: Modern Day Slavery and Human Trafficking

The Connecticut Journal of International Law has issued a call for papers for a symposium on "Modern Day Slavery and Human Trafficking." Here's the call:

In March 2009, the Connecticut Journal of International Law at the University of Connecticut School of Law will hold a symposium on Modern Day Slavery and Human Trafficking with special emphasis on adult labor and child soldiers. The Connecticut Journal of International Law cordially invites scholars and practitioners to submit papers related to any of the subject matter panels discussed below.

Panel 1 Domestic Servitude: “Hidden in Plain Sight” - Domestic slavery is the situation of a vulnerable individual forced, by physical and/or moral coercion, to work in private households without any real financial reward, deprived of liberty and in a situation contrary to human dignity.

Panel 2 Debt Bondage: “Peonage Labor: 21st Century Bondage” - A person enters debt bondage when their labor is demanded as a means of repayment of a loan or of money given in advance. Usually, people are tricked or trapped into working in conditions that violate their human rights for very little or no pay in repayment of a loan. Invariably, the value of the work done by a bonded laborer is greater that the original sum of money borrowed or advanced.

Panel 3 Child Soldiers: “Life on the Front Lines” - Over the last ten years hundreds of thousands of children have fought and died in conflicts around the world. Child soldiers are forced to engage in hazardous activities, such as laying mines or explosives and using weapons, while being subject to insufficient food, lack of heath care, and humiliating treatment.

Deadline

The deadline for submission of papers is Wednesday, April 1, 2009. However, we encourage scholars to submit their work as soon as possible. Electronic submissions are preferred but not required. When submitting electronically, please email the document as a Microsoft Word or PDF attachment to: CJIL.Articles@yahoo.com. All hardcopy submissions should be mailed to: Editor–in–Chief, Connecticut Journal of International Law, University of Connecticut School of Law, 65 Elizabeth Street, Hartford, CT 06105-2290.

Format Formalities

Submissions shall have 1 inch margins, be double spaced, with Times New Roman font. All citations must be in footnotes. Text and Citations should conform to the 18th edition of The Bluebook: A Uniform System of Citation. Please provide a CV and a cover letter or abstract summarizing the submission. Please include a word court (including footnotes) on the first page of the submission.

Workshop: Carozza

Paolo Carozza (Univ. of Notre Dame - Law) will give a talk today at the Harvard Law School International Law Workshop on "Amnesty Laws, Democracy and International Human Rights."

New Issue: Journal of International Criminal Justice

The latest issue of the Journal of International Criminal Justice (Vol. 6, no. 4, September 2008) is out. Contents include:

• Goran Sluiter, Karadzic on Trial: Two Procedural Problems
• John C. Dehn, Permissible Perfidy?: Analysing the Colombian Hostage Rescue, the Capture of Rebel Leaders and the World's Reaction
• Workshops
• Fausto Pocar, Completion or Continuation Strategy?: Appraising Problems and Possible Developments in Building the Legacy of the ICTY
• Erik Møse, The ICTR's Completion Strategy - Challenges and Possible Solutions
• Discussion
• René Blattmann & Kïrsten Bowman, Achievements and Problems of the International Criminal Court: A View From Within
• William A. Schabas, Prosecutorial Discretion v. Judicial Activism at the International Criminal Court
• Discussion
• Notes and Comments
• Flavia Zorzi Giustiniani, Stretching the Boundaries of Commission Liability: The ICTR Appeal Judgment in Seromba
• Kasaija Phillip Apuuli, The ICC's Possible Deferral of the LRA Case to Uganda

Workshops: Cuellar, Reinisch

Tino Cuellar (Stanford Univ. - Law) will give a talk today at the University of California, Berkeley School of Law International Law and International Relations Workshop on "Coalitions, Autonomy and the State."

August Reinisch (Univ. of Vienna - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "The Enforcement of Investment Awards in National Courts."

Davis: Upstairs, Downstairs: Subnational Incorporation of International Human Rights Law at the End of an Era

Martha F. Davis (Northeastern Univ. - Law) has posted Upstairs, Downstairs: Subnational Incorporation of International Human Rights Law at the End of an Era (Fordham Law Review, forthcoming). Here's the abstract:

Traditionally, states and the federal government maintained an "upstairs, downstairs" relationship when it came to global affairs, with states serving in the background role as the downstairs members of the national household. However, the traditional federal-state relationship in the international affairs arena is increasingly unworkable as states become more and more transnationally active. This is particularly true in the area of human rights implementation, where states have both used their own policies to associate with human rights movements worldwide and have incorporated human rights norms into their own state laws. Federal courts' approach to human rights implementation, however, has failed to recognize these complexities. Instead, through American Insurance Ass'n v. Garamendi and Crosby v. National Foreign Trade Council, the courts have endorsed a regime that generally disfavors human rights implementation on the state level by finding broad federal preemption, even in the absence of any direct conflict between state and federal policy. At the same time, the recent Supreme Court decision of Medellin v. Texas permits states to eschew human rights norms even in the face of a contrary executive memorandum and Senate ratification. Examining these contrasting cases in detail, this essay proposes a series of principles to establish greater scope for subnational human rights implementation through a more sensitive and realistic approach to federal preemption doctrine in an age when states are no longer simply a "downstairs" presence but are directly engaged in the human rights project.

New Issue: International Community Law Review

The latest issue of the International Community Law Review (Vol. 10, no. 4, December 2008) is out. Contents include:

• Situating Third World Approaches to International Law (TWAIL): Inspirations, Challenges and Possibilities
• Karin Mickelson, Ibironke Odumosu, & Pooja Parmar, Foreword
• Karin Mickelson, Taking Stock of TWAIL Histories
• Pooja Parmar, TWAIL: An Epistemological Inquiry
• Obiora Chinedu Okafor, Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?
• Opeoluwa Adetoro Badaru, Examining the Utility of Third World Approaches to International Law for International Human Rights Law
• Jalia Kangave, 'Taxing' TWAIL: A Preliminary Inquiry into TWAIL's Application to the Taxation of Foreign Direct Investment
• Mosope Fagbongbe, The Future of Women's Rights from a TWAIL Perspective
• Vijayashri Sripati, The United Nation's Role in Post-Conflict Constitution-Making Processes: TWAIL Insights
• Sunera Thobani, Reading TWAIL in the Canadian Context: Race, Gender and National Formation
• Gerardo J. Munarriz, Rhetoric and Reality: The World Bank Development Policies, Mining Corporations, and Indigenous Communities in Latin America
• Ruth Buchanan, Writing Resistance Into International Law
• Michael Fakhri, Law as the Interplay of Ideas, Institutions, and Interests: Using Polyani (and Foucault) to Ask TWAIL Questions
• Ibironke T. Odumosu, Challenges for the (Present/) Future of Third World Approaches to International Law
• Antony Anghie, TWAIL: Past and Future

Workshops: Blanco-Bazan, Waldron

Agustin Blanco-Bazan (International Maritime Organization) will give a talk today at the International Law Association (British Branch)-University College London Faculty of Laws International Law Seminar on "Piracy and Terrorism at Sea."

Jeremy Waldron (New York Univ. - Law) will give a talk today at the New York University School of Law Hauser Globalization Colloquium on Global Governance and Legal Theory on "Are Sovereigns Entitled to the Benefit of the International Rule of Law."

Conference: Issues relating to Enforcement in International Arbitration

The Alumni & Friends of the School of International Arbitration will host its inaugural conference on December 3, 2008, in London. The topic is "Issues relating to Enforcement in International Arbitration." The program is here.

Symposium: The Future of International Criminal Justice

The Santa Clara Journal of International Law, together with the Santa Clara University School of Law Center for Global Law and Policy, will host a symposium on "The Future of International Criminal Justice," March 13-14, 2009. The program is here. Why attend?

Given the centrality of institutions and processes of international criminal justice to contemporary public international law and international relations, this conference brings together leading academics and practitioners to discuss cutting edge issues associated with international criminal law and its enforcement. Our perspective is expressly forward looking in an effort to anticipate where the field is going in light of its current manifestations.

Our keynote speaker is Professor M. Cherif Bassiouni, one of the world’s leading experts on international criminal law. The conference will feature four main papers on the following topics: the controversial exercise of universal jurisdiction, the principle of complementarity before the International Criminal Court, responses to collective and systemic criminal behavior, and the contested crime of terrorism. The symposium will feature four panels, one for each of the four main papers, in which expert commentators will provide a range of perspectives on the topics addressed in those papers. The symposium will conclude with a roundtable discussion in which panelists will explore how the international legal system may better achieve the goals of international criminal law.

Conference: International Commercial Arbitration: Fifty Years After the New York Convention

The Georgia Journal of International and Comparative Law and the University of Georgia School of Law's Dean Rusk Center will host a conference on "International Commercial Arbitration: Fifty Years After the New York Convention," January 30, 2009, in Athens, Georgia. The full program is not yet available online.

New Issue: Human Rights Quarterly

The latest issue of the Human Rights Quarterly (Vol. 30, no. 4, November 2008) is out. Contents include:

• David Keane, Cartoon Violence and Freedom of Expression
• Tsun Hang Tey, Confining the Freedom of the Press in Singapore: A "Pragmatic" Press for "Nation-Building"?
• Zehra F. Kabasakal Arat, Human Rights Ideology and Dimensions of Power: A Radical Approach to the State, Property, and Discrimination
• Judith V. Welling, International Indicators and Economic, Social, and Cultural Rights
• Fred M. Frohock, Human Rights and Research on Inchoate Life: An Emerging Set of Limits for Rights Vocabularies
• James W. Nickel, Rethinking Indivisibility: Towards A Theory of Supporting Relations between Human Rights

Symposium: The Exercise of Public Authority by International Institutions

The latest issue of the German Law Journal contains a symposium on "The Exercise of Public Authority by International Institutions." Contents include:

• Armin von Bogdandy, Philipp Dann, & Matthias Goldmann, Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities
• Ingo Venzke, International Bureaucracies from a Political Science Perspective – Agency, Authority and International Institutional Law
• Erika de Wet, Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work
• Anuscheh Farahat, Regulating Minority Issues through Standard-Setting and Mediation: The Case of the High Commissioner on National Minorities
• Isabel Feichtner, The Administration of the Vocabulary of International Trade: The Adaptation of WTO Schedules to Changes in the Harmonized System - Part I and Part II
• Clemens A. Feinäugle, The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?
• Jürgen Friedrich, Legal Challenges of Nonbinding Instruments: The Case of the FAO Code of Conduct for Responsible Fisheries
• Christine Fuchs, Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) - Conservation Efforts Undermine The Legality Principle
• Karen Kaiser, WIPO's International Registration of Trademarks: An International Administrative Act Subject to Examination by the Designated Contracting Parties
• Petra Lea Lancos, Flexibility and Legitimacy - The Emissions Trading System Under the Kyoto Protocol
• Steven Less, International Administration of Holocaust Compensation: The International Commission on Holocaust Era Insurance Claims (ICHEIC) - Part I and Part II
• Ravi Afonso Pereira, Why Would International Administrative Activity Be Any Less Legitimate? – A Study of the Codex Alimentarius Commission
• Bettina Schöndorf-Haubold, The Administration of Information in International Administrative Law - The Example of Interpol - Part I and Part II
• Gefion Schuler, Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises
• Maja Smrkolj, International Institutions and Individualized Decision-Making: An Example of UNHCR’s Refuge Status Determination
• Joseph Windsor, The WTO Committee on Trade in Financial Services: The Exercise of Public Authority within an Informational Forum
• Diana Zacharias, The UNESCO Regime for the Protection of World Heritage as Prototype of an Autonomy-Gaining International Institution - Part I and Part II
• Matthias Goldmann, Inside Relative Normativity: From Sources to Standard Instruments for the Exercise of International Public Authority - Part I and Part II
• Armin von Bogdandy, General Principles of International Public Authority: Sketching a Research Field
• Jochen von Bernstorff, Procedures of Decision-Making and the Role of Law in International Organizations
• Volker Röben, The Enforcement Authority of International Institutions
• Erika de Wet, Holding International Institutions Accountable: The Complementary Role of Non-Judicial Oversight Mechanisms and Judicial Review
• Armin von Bogdandy & Philipp Dann, International Composite Administration: Conceptualizing Multi-Level and Network Aspects in the Exercise of International Public Authority
• Rüdiger Wolfrum, Legitimacy of International Law and the Exercise of Administrative Functions: The Example of the International Seabed Authority, the International Maritime Organization (IMO) and International Fisheries Organizations
• Eberhard Schmidt-Aßmann, The Internationalization of Administrative Relations as a Challenge for Administrative Law Scholarship

New Issue: Global Governance

The latest issue of Global Governance: A Review of Multilateralism and International Institutions (Vol 14, no. 4, October-December 2008) is out. Contents include:

• Claudia Pahl-Wostl, Joyeeta Gupta, & Daniel Petry, Introduction: Global Governance of Water
• Olcay Ünver, Global Governance of Water: A Practitioner’s Perspective
• Claudia Pahl-Wostl, Joyeeta Gupta, & Daniel Petry, Governance and the Global Water System: A Theoretical Exploration
• Joseph Dellapenna & Joyeeta Gupta, Toward Global Law on Water
• Ines Dombrowsky, Integration in the Management of International Waters: Economic Perspectives on a Global Policy Discourse
• Thomas Bernauer & Tobias Siegfried, Compliance and Performance in International Water Agreements: The Case of the Naryn/Syr Darya Basin
• Yongsong Liao, Charlotte de Fraiture, & Mark Giordano, Global Trade and Water: Lessons from China and the WTO

New Volumes: Recueil des Cours

Volumes 324, 329, and 332 of the Recueil des Cours, Collected Courses of the Hague Academy of International Law (Martinus Nijhoff Publishers 2008) are out. Contents include:

• Volume 324
• M. Bedjaoui (formerly, Judge, International Court of Justice), L'humanité en quête de paix et de développement (I)
• Volume 329
• A. Pellet (l'Université Paris X-Nanterre), L'adaptation du droit international aux besoins changeants de la société internationale
• E. Gaillard (l'Université Paris XII) Aspects philosophiques du droit de l'arbitrage international
• N. Schrijver (Free University of Amsterdam), The Evolution of Sustainable Development in International Law: Inception, Meaning and Status
• Volume 332
• J.-Y. Carlier (l'Université catholique de Louvain), Droit d'asile et des réfugiés. De la protection aux droits
• A. A. Fatouros (University of Athens), An International Legal Framework for Energy

Workshop: Safrin

Sabrina Safrin (Rutgers Univ., Newark - Law) will give a talk today at the Georgetown University Law Center International Legal Theory Colloquium on "The Un-Exceptionalism of U.S. Exceptionalism."

Conference: Investment and Commercial Arbitration - Similarities and Divergences

This year's Vienna International Arbitration Forum will take place November 21, 2008, at the University of Vienna Law School. The topic is "Investment and Commercial Arbitration - Similarities and Divergences." The program is here.

New Issue: Netherlands Quarterly of Human Rights

The latest issue of the Netherlands Quarterly of Human Rights (Vol. 26, no. 3, 2008) is out. Contents include:

• Manisuli Ssenyonjo, State Reservations to the ICESCR: A Critique of Selected Reservations
• Gerd Oberleitner, A Decade of Mainstreaming Human Rights in the UN: Achievements, Failures, Challenges
• Wouter Vandenhole & Tamara Wielders, Water as a Human Right—Water as an Essential Service: Does It Matter?