Opinio Juris http://www.opiniojuris.org/ en-us 2008-06-10T13:06+00:00 GITMO Interrogators Instructed to Destroy Notes http://www.opiniojuris.org/posts/1213104254.shtml First the judge who felt "badgered, beaten, and bruised" by prosecutors for trying to protect Khadr's rights was removed from the case "for personnel reasons." Now it turns out that... Kevin Jon Heller 2008-06-10T13:06+00:00 removed from the case "for personnel reasons." Now it turns out that Khadr's interrogators were "instructed" -- read: ordered -- to destroy their notes, lest anyone ever find out that Khadr had been tortured or mistreated:
Navy Lieutenant Commander Bill Kuebler said in a statement sent to reporters he considers the notes crucial to the defense of his client, Canadian Omar Khadr, during his upcoming murder trial by a special military tribunal at the US naval base.

Kuebler said the instructions were handed down to interrogators from the US Department of Defense as part of a standard operating procedure or "SOP" directive that he obtained from prosecutors last week.

If they were carried out, US interrogators may have "routinely destroyed evidence" that might have been used to defend the Khadr and other detainees, Kuebler charged.

"If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar's lawyers of key evidence with which to challenge the reliability" of alleged confessions made to military interrogators, Kuebler said.

He cited in particular one passage of the directive to military interrogators stating that "this mission has legal and political issues that may lead to interrogators being called to testify."

"Keeping the number of documents with interrogation information to a minimum can minimize certain legal issues," the policy statement said, according to Kuebler.
Yes, it certainly can. So can suborning perjury and fabricating evidence -- but that doesn't make them good ideas.

Can we please stop pretending that the (un)fairness of military commissions is still open to rational debate?]]> The Collapse of the "Bioterror" Case Against Dr. Steven Kurtz http://www.opiniojuris.org/posts/1211760090.shtml With so many failed terrorism prosecutions to cover — see, for example, here, here, and here — the media can be forgiven for overlooking one here or there.... Kevin Jon Heller 2008-05-26T00:05+00:00 here, here, and here — the media can be forgiven for overlooking one here or there. Still, it's a shame that the Bush administration's most recent failure, the baseless prosecution of Dr. Steven Kurtz on bioterror charges, has not received more attention.

It's an ugly story. Kurtz, a professor of visual arts at the University of Buffalo, fell asleep next to his wife of 20 years one night in May, 2004. When he woke up, she was dead. He immediately called 911, the police came to his house — and thus began what can only be described as a Kafkaesque nightmare:
When police responded to his 911 call, they noticed a small food-testing lab and petri dishes containing bacteria cultures.

The lab was part of the scheduled installation, which would have allowed museum visitors to see if their store bought food contained genetically modified (GM) organisms. The cultures were part of a multi-media project commissioned by the British-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Programme.

The project used the harmless bacteria Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programmes and their cost to global public health. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.

Local police called the Federal Bureau of Investigation (FBI). While politicians and federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was detained under the Patriot Act on suspicion of bioterrorism. The street where Kurtz's home was located was cordoned off, his house searched, and his property seized.

Federal agents confiscated Kurtz's art projects, computers, and all copies of a book manuscript Kurtz was working on, as well as his reference books and notes. The book, "Marching Plague: Germ Warfare and Global Public Health" (New York: Autonomedia), had to be entirely reconstructed and was finally published in 2006.

The then governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then U.S. attorney in Buffalo, Michael A. Battle — the lawyer who was later to become the Department of Justice employee who notified eight U.S. attorneys that they were being fired — praised the work of the Buffalo Joint Terrorism Task Force.
The initial investigation went nowhere — FBI tests revealed that the bacteria were harmless — and a grand jury ultimately refused to indict Kurtz on bioterrorism charges. The end of the case? Of course not. This is, after all, the Bush administration, for whom "justice" is a four-letter word:
Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. The government claimed that when Dr. Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the University of Pittsburgh and the supplier, American Type Culture Collection (ATCC).

Neither the university nor ATCC had brought any complaint, and observers pointed out that scientists routinely share non-hazardous cultures. The Department of Justice further claimed that this alleged contract discrepancy constituted federal mail and wire fraud.

Because the charges against the two academics were brought under the Patriot Act, the maximum penalty was increased from five years to 20.

Earlier, Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies. During the legal wrangling, he had two minor strokes and a major stroke that required months of rehabilitation. He was indicted as he was preparing to undergo a stem cell transplant, his second in seven years.

But Kurtz rejected any plea deal, instead demanding a public trial. Most of the art world has rallied behind him. His colleagues in the Critical Art Ensemble set up a website and a legal defence fund, and Kurtz continued to teach at the University of Buffalo.

When the case finally arrived in a courtroom this month, Federal Judge Richard J. Arcara ruled to dismiss the indictment. It is unclear whether the government will appeal the dismissal.
If Kurtz's four-year ordeal is any indication, the Bush administration most certainly will appeal. Why stop now? The absence of evidence that Kurtz did anything wrong never stopped them before.

Full disclosure: I was involved in the early stages of Kurtz's defense, providing the defense team with legal advice and giving the keynote lecture at a conference at the University of Buffalo on the PATRIOT Act and artistic freedom.]]> Russia v. Canada: Power and Interests Confront International Law http://www.opiniojuris.org/posts/1211144127.shtml Russia continues to keep the pressure on Canada in the race to claim rights over the seabed underneath the Arctic Sea.... Julian Ku 2008-05-19T04:05+00:00 continues to keep the pressure on Canada in the race to claim rights over the seabed underneath the Arctic Sea.

THE battle for "ownership" of polar oil reserves has intensified with Russia sending a fleet of nuclear-powered ice-breakers into the Arctic. It has reinforced fears that Moscow intends to unlawfully annex a vast portion of the ice-covered Arctic. Scientists believe up to 10 billion tonnes of gas and oil could lie under the region.


In response, Canada is going to spend $C40 Million to build a fleet of patrol boats. That doesn't sound very threatening, but the normally laid-back Canadians seem pretty juiced up about their rights in the Arctic. Or are they?

There is a widely accepted international legal regime to which both Canada and Russia belong -- the Convention on the Law of the Sea — that should resolve this dispute. But what if there really is 10 billion tons of oil and natural gas at stake? Will Russia or even law-abiding Canada be able to stick to that regime. An interesting test of the pull of law versus interests...

]]> ATS Apartheid Case Affirmed by Supreme Court http://www.opiniojuris.org/posts/1210952827.shtml In a strange move, the Supreme Court on Monday affirmed the ATS Apartheid case of Khulamani v. Barclay Bank (recaptioned at the Supreme Court as American Isuzu Motors v. Ntsebeza).... Roger Alford 2008-05-16T15:05+00:00 Khulamani v. Barclay Bank (recaptioned at the Supreme Court as American Isuzu Motors v. Ntsebeza). The stated reason? The Court lacked a quorum. From the docket sheet:

Because the Court lacks a quorum, 28 U.S.C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances the Court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided Court. The Chief Justice, Justice Kennedy, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.
Under 28 U.S.C. § 1, "the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum." And under 28 U.S.C. § 2109, in any case "which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Apparently four justices had to recuse themselves and therefore the Court lacked the six justice quorum required to decide the case.

If you look at the list of defendants it is perhaps not surprising that many of the justices had a conflict. Still, I have never heard of anything like this in such an important case. Lyle Denniston has more here.

]]> How Do You Interpret the Last-in-Time Rule? http://www.opiniojuris.org/posts/1210221886.shtml Boring tax case, interesting international law issue. That's how I would summarize Jamieson v. CIR. The issue in Jamieson is what happens if a treaty says one thing, a subsequent... Roger Alford 2008-05-08T15:05+00:00 Jamieson v. CIR. The issue in Jamieson is what happens if a treaty says one thing, a subsequent statute conflicts with that treaty, and then there is a subsequent treaty change to the conflicting treaty provision, but that amendment does not remove the conflict. Under the last-in-time rule which provision prevails? Here is what the U.S. Tax Court ruled:


In 1986, while the U.S.-Canada Convention was in force, Congress amended the AMT imposed on noncorporate taxpayers by section 55 and added section 59 to the Code.... [Thereafter] the U.S.-Canada Convention was amended.... The revised Protocol Amending the Convention... made changes to Article XXIV affecting credits for Social Security tax, corporate tax exemptions, and the tax treatment of dividends, interest, and royalties,... but did not alter the general rule found in article XXIV, paragraph 1. Neither the Third nor the Fourth Protocol references section 59 [the earlier conflicting statutory provision].

It is well established that, where a statute and a treaty pertain to the same subject matter, they must be read so as to give effect to both if at all possible.... If, however, the statute and the treaty conflict, the last-in-time rule requires that “the last expression of the sovereign will ... [controls].”...

Applying the last-in-time rule, we hold that section 59(a)(2) is the last expression of the sovereign will and that it takes precedence over the U.S.-Canada Convention to the extent there is a conflict between them. [The statute] makes it very clear that Congress intended the limitation of section 59(a)(2) to supersede existing treaty provisions prohibiting double taxation. The U.S.-Canada Convention was one of those treaties. Neither the Third nor the Fourth Protocol contains any provision clearly indicating that Congress's intention to ensure that taxpayers with sufficient means should contribute a minimum amount of tax to the United States had been superseded.

So a treaty provision conflicts with a statute, and then that treaty provision is amended without fixing the conflict. Under the last-in-time rule, although the amended treaty provision came later, the failure to address the conflict means that the earlier conflicting statute controls? That logic seems more than a little curious to me. I wonder what others think. ]]> Are Evolving Standards of Decency a One-Way Ratchet? http://www.opiniojuris.org/posts/1210000749.shtml One of the more intriguing questions from the oral argument in the child rape death penalty case of Kennedy v. Louisiana is whether evolving standards of decency are a one-way... Roger Alford 2008-05-05T15:05+00:00 Kennedy v. Louisiana is whether evolving standards of decency are a one-way ratchet. Here is Justice Stevens' question from the oral argument last month:


[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?... I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it's appropriate — are you aware of any case saying we can turn around and go in another direction?

The amicus brief of British Law Lords referenced by Justice Stevens summarizes the one-way ratchet argument succinctly:

International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply--a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.

It is an interesting idea. Note that the role of comparative and international law is not with respect to the content of a particular substantive right but rather the methodology by which standards should evolve. The question posed is not what other countries do with respect to child rape and the death penalty, but rather whether other countries allow for the expansion of the death penalty. Justice Stevens is suggesting that perhaps a living constitution should evolve in the same manner that international law evolves, with the death penalty moving in only one direction toward abolition.

The apparent concern that animates Justice Stevens' question is that the national consensus may be trending toward allowing the death penalty for child rape. If the national consensus is evolving toward a conclusion that this punishment is not cruel and unusual, on what basis can Justice Stevens limit the use of that evolving standard? I seriously doubt that the Court will rely on international or comparative law to embrace a one-way ratchet, but it is worth discussing whether our own jurisprudence would allow for such a limit on the evolving standards of decency.
]]> The Role of Precedent at the WTO http://www.opiniojuris.org/posts/1209742944.shtml Earlier this week the WTO Appellate Body clarified the role of legal precedent in WTO jurisprudence. The background to the discussion was a WTO panel’s refusal to follow a previous Appellate... Roger Alford 2008-05-02T15:05+00:00 here. I have written about judicial overreaching by the WTO Appellate Body and basically agreed with the lower panel’s legal reasoning on deference to permissible interpretations of Member States in the AD/CVD context.

Well, the Appellate Body in Stainless Steel (Mexico) did not take kindly to the panel’s refusal to follow the previous Appellate Body report and issued the following smack down:

158. It is well settled that Appellate Body reports are not binding, except with respect to resolving the particular dispute between the parties. This, however, does not mean that subsequent panels are free to disregard the legal interpretations and the ratio decidendi contained in previous Appellate Body reports that have been adopted by the DSB….

160. Dispute settlement practice demonstrates that WTO Members attach significance to reasoning provided in previous panel and Appellate Body reports. Adopted panel and Appellate Body reports are often cited by parties in support of legal arguments in dispute settlement proceedings, and are relied upon by panels and the Appellate Body in subsequent disputes. In addition, when enacting or modifying laws and national regulations pertaining to international trade matters, WTO Members take into account the legal interpretation of the covered agreements developed in adopted panel and Appellate Body reports. Thus, the legal interpretation embodied in adopted panel and Appellate Body reports becomes part and parcel of the acquis of the WTO dispute settlement system. Ensuring "security and predictability" in the dispute settlement system … implies that, absent cogent reasons, an adjudicatory body will resolve the same legal question in the same way in a subsequent case.

161. In the hierarchical structure contemplated in the DSU, panels and the Appellate Body have distinct roles to play…. The Panel's failure to follow previously adopted Appellate Body reports addressing the same issues undermines the development of a coherent and predictable body of jurisprudence clarifying Members' rights and obligations under the covered agreements as contemplated under the DSU….

162. We are deeply concerned about the Panel's decision to depart from well-established Appellate Body jurisprudence clarifying the interpretation of the same legal issues. The Panel's approach has serious implications for the proper functioning of the WTO dispute settlement system ….

Did you catch all of that? WTO Appellate Body decisions are not binding, but they must be followed. Unless, that is, there are cogent reasons not to follow them. But then if you don’t follow them because you think you do have cogent reasons (i.e., the standard of review in the treaty was ignored by the previous Appellate Body report), then the Appellate Body will be deeply concerned.

The role of precedent has always been difficult with respect to international courts and tribunals. But I read the Appellate Body in Stainless Steel (Mexico) as essentially requiring panels to follow Appellate Body decisions and treat them as legal precedent. You can't call it legal precedent, but it is. As one anonymous commenter put it in this post, the message from the Appellate Body to panels is the following:


You really, really should follow prior Appellate Body decisions. It would be quite bad for the system if you do not. But if you've got what you think are compelling reasons for not doing so, we understand if you feel you have to go your own way. Bearing in mind, of course, that if you do, we will almost certainly reverse you on appeal. You may think your reasons are pretty good, but if they were really that persuasive we would have gone that way ourselves, hence they are not, in fact, "cogent".

]]> The Law Firm of 2025: Richer, Larger, More Global http://www.opiniojuris.org/posts/1209572319.shtml The American Lawyer has just published a great article on the future of law firms. The bottom line: successful law firms will be global operations with thousands of lawyers led... Roger Alford 2008-04-30T16:04+00:00 great article on the future of law firms. The bottom line: successful law firms will be global operations with thousands of lawyers led by an elite group of partners with staggering profits-per-partner. Here is an excerpt:


The projections make it clear that U.S. corporate law firms of the future will be wealthier, larger, and more international than they were in the past…. Six firms … will gross more than $10 billion: Kirkland & Ellis; Mayer Brown; Baker & McKenzie; Jones Day; Skadden; and Latham. By 2025 Latham, at $23 billion, will have dramatically outpaced Skadden, its nearest competitor at $15.9 billion.

The PPP [profits-per-partner] projections for 2025 have Wachtell partners bringing home almost $15.7 million (before adjusting for inflation). Cravath, Swaine & Moore's PPP will be $9.6 million; Skadden's $6 million; and Baker & McKenzie's $2.5 million. The highest 2025 projected profits per partner are at Cadwalader, Wickersham & Taft, where the model suggests partners will net nearly $20 million apiece in 2025….

White & Case is projected to be the biggest of the 47 firms in the analysis, with 13,824 lawyers; Baker & McKenzie will follow closely behind with 13,512. More than three-quarters of the lawyers at both firms will be based outside the United States. Jones Day will have 11,623 lawyers and Latham 11,066, of whom almost 40 percent will be international….

And as the roster of firms atop the PPP and RPL projections indicates, the gap between firms will grow ever larger. The rich will continue to get richer and the poor relatively poorer…. Big firms will become bigger relative to smaller firms; and firms with a strong international presence will stand in greater contrast to those firms that have a minimal or no international presence.

These projections present numerous challenges and opportunities for firms in The Am Law 200. For firms to maintain the growth rates they established in the last 20 years-the rates that resulted in these optimistic predictions-they will have to grapple with a number of critical questions:

Will the market for high-end corporate legal services continue to expand? The projections assume that demand will continue to grow at historic rates. For that to happen, however, law firms will have to penetrate or create new markets, whether in other countries or new practice areas. …

How will the firms of the future manage the complexities of their ever-increasing size and geographical scope? The firm of the past had a few hundred lawyers. Several firms today have more than 1,000-but in 20 years, a 1,000-lawyer firm will be midsize. And firms will be much more geographically dispersed. Managing complexity will require that firm leaders continually develop and market their firm's expertise, while at the same time nurturing talent.

What will be the organizational identity of firms with an increasing percentage of lawyers outside the U.S.? A number of firms will cross the threshold and become global operations, no longer just U.S. firms with an international presence. Will such firms suffer identity crises? Will they be able to create a global identity that unites their partners worldwide?

Will firms that have avoided international expansion be able to continue to grow? Projections suggest that in 2025 Wachtell will still be wholly domestic and Cravath will have only about 6 percent of its lawyers outside the U.S. If the market forces them to move to a more global model, they may suffer significant financial and cultural costs, especially if they have to move quickly. Domestic firms with less marketable reputations may be hurt even more if they have to play global catch-up….

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