Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship
in the fields of international law and politics

Tuesday, July 1, 2008

Second Circuit Decides that Constitutional Rights Litigation Does Not Follow the Flag
The U.S. Court of Appeals for the Second Circuit has rejected an appeal by Maher Arar, a Canadian national who is suing various U.S. government officials for injuries suffered during his "extraordinary rendition" shortly after 9/11 (h/t to Vince Vitowsky). The court, via Judge Jose Cabranes, held that Arar had failed to state a claim under the Torture Victim Protection Act and the Fifth Amendment of the U.S. Constitution, and that to the extent he had stated a constitutional claim, the court refused to create a cause of action in a case implicating foreign affairs and national security issues.

In essence, the majority followed the logic of the lower court (which I applauded at length here) by refusing to create a cause of action for a foreign national in a case implicating complex foreign affairs issues absent clear congressional authorization. It further held that Arar's confinement in the United States did not state a claim for violation of the Fifth Amendment Due Process Clause since it did not amount to gross physical abuse.

As I have stated before, this case is a tough one. Almost all the evidence I've seen points to Arar's blamelessness and to serious mistakes by the U.S. and Canadian governments. On the other hand, Bivens, which is the doctrine allowing courts to create a cause of action to recover damages for violations of constitutional right, is supposed to be used sparingly, especially in cases involving activities overseas and implicating foreign relations. I side with the majority on this prudential conclusion, but I do understand the temptation of the dissenting judge to give Arar the chance to get some relief for the horrors he appears to have suffered.

The majority and dissent got a little punchy in this opinion, which suggests the judges had some serious disagreements and that they see a cert petition to the Supreme Court in their near future. I think this case has a good chance to get to the Court given the astonishing facts and the unsettled nature of the law. Something to stay on top of...

Sunday, June 29, 2008

There Will Be Blood
The NY Times Week in Review has an article written by Graham Bowley on the effect of recent attacks by Movement for the Emancipation of the Niger Delta (MEND) on Nigeria’s oil infrastructure and the effects of these attacks on world oil prices. The piece begins:
When armed rebels from the Movement for the Emancipation of the Niger Delta attacked an enormous oil facility 75 miles off the swampy West African coast on June 19, traveling hours by speedboat under cover of darkness and kidnapping an oil worker, their brazen assault underlined the perhaps underappreciated dependence of the United States — and the world — on oil from Nigeria.

Three days afterward, Nigerian officials said at a hastily arranged global energy summit in Jidda, Saudi Arabia, that recent attacks had cut Nigeria’s oil production to its lowest level in nearly two decades, giving oil markets the jitters and helping to send prices higher…

“We always focus on the Persian Gulf but this is one of the key oil security issues in the world today,” said Daniel Yergin, one of the nation’s best-known energy experts and chairman of Cambridge Energy Research Associates, a consulting firm. “It’s tied up with Nigerian politics, regional and national battles for power, and criminality.” When Mr. Yergin spoke to lawmakers at a hearing in Congress last week, he was asked what would most help stabilize world markets. “Helping bring peace to the Niger Delta would be a major contribution,” he responded.
The Times article continues that responding to the situation in Nigeria will need both a sound development policy and a counter-insurgency strategy:
According to J. Stephen Morrison, director of the Africa program at the Center for Strategic and International Studies in Washington, the government led by Nigeria’s new president, Umaru Yar’Adua, must break with decades of neglect and pay attention to the troubles of the southern delta region by promoting development but also cracking down on the rebels and “demonstrating that these guys cannot operate with impunity.”

He’s not very optimistic, however. “When you look at the delta, the overwhelming picture is that the situation has very little promise of being fixed,” he said.
While development policy is always a complex issue, the “operate with impunity” part is also a problem, as MEND has started attacking not just oil pipelines, but offshore oil platforms, as well. MEND even issued a press release that states, "The location for today's attack was deliberately chosen to remove any notion that off-shore oil exploration is far from our reach." Jeff Vail of The Oil Drum explains that this is especially significant as 90% of Nigeria’s oil growth is expected to be via new offshore platforms. Which now seem vulnerable to attack.

John Robb, who writes extensively on guerilla-based “fourth generation warfare” is concerned that destabilization from infrastructure attacks will worsen:
So, given production limitations and strong/concentrated demand, even small disruptions by guerrilla groups on light sweet crude production is likely to have a direct influence on global oil pricing (in contrast, disruptions aimed at heavy crude production should have little impact on global pricing). Further, there are already active groups in many of the most critical production areas.

Fortunately, from the demonstrated behavior of these groups it doesn't appear that guerrilla/terrorist groups have fully grasped their potential market power with small attacks (despite aspirational pronouncements from al Qaeda and large scale attacks in 2005/2006). Once they do, as bad as disruption is today, it could get MUCH worse.

Why? A direct connection to scalable profits...

As we saw with e-mail spam/phishing, even the faintest whiff of profits can turn a loose collection of individuals/groups into a torrential crime-fueled marketplace generated billions and attracting tens of thousands of participants. Are we about to see the same occur with oil?
For example, consider Columbia. John Robb notes that
Disruption isn't limited to Nigeria. A remote control bomb by the FARC on Occidental Petroleum's pipeline in Colombia just knocked out 100,000 barrels a day. It's also interesting to note how irrelevant the US military/national security system has become in regards to global energy security. The entire paradigm of warfare has changed but the $1 Trillion behemoth has barely budged.
While I doubt that the end is nigh, the situation is obviously serious and it won’t be solved by a combination of a dithering domestic energy policy and a foreign policy of “assisted” regime-change. So, for now, only one thing is certain…

Where Else Does the Great Writ Extend? Afghanistan???
As this WaPo article points out, the U.S. military base in Bagram, Afghanistan is likely to be the next source of litigation from detainees seeking to challenge their detention in U.S. courts. Of course, Boumediene doesn't make it clear that the writ extends to Guantanamo, but it does not rule out extending the Writ there either. That is part of the problem with the decision. It is pretty much impossible to predict how Justice Kennedy will rule on this? Will President Obama or McCain have to close Bagram as well as Guantanamo? I think the answer is "probably."