Category Archives: Law: International Law

The Man Who Would Own Eros

I will never forget my college political philosophy professor mocking John Locke's attempt to ground the foundations of property on the admixture of labor or property to unclaimed resources by asking whether, were he to legitimately acquire a can of tomato paste and pour it into the ocean, he could therefore claim the ocean as his own.

Think that's silly? How about Gregory Nemitz of Carson City, Nevada, who claims to own Eros, and wants NASA to pay him $20 for “parking and storage fees” now that it has landed the NEAR Shoemaker spacecraft on “his” asteroid. Basically, the basis of Nemitz's claim to ownership of Eros is, well, that he claims to own it, and that he's expending resources to pursue the claim, so it must be his. Oh yes, and that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967, which precludes private ownership of celestial bodies, sounds in the Communist Manifesto, so it must be illegal.

This would be funny if the guy were not (it seems) funded by the sale of beef jerky (I am not making this up, see the bottom of his web site), and appealing (pro se) the loss of his district court case up to the 9th Circuit. Where I confidently predict he will lose again.

(The words “sui juris” on his brief are by the way a giveaway that the appellant is in the grip of a legal cult, akin to the common law court cultists, or the people who think that writing “Without Prejudice UCC 1-207” will somehow have a magic effect on their debts, or who think that they can avoid paying taxes by eschewing Social Security numbers and claiming to be just a state citizen not a citizen of the US.)

Posted in Law: International Law | 1 Comment

Red Cross Wants Information on Missing Detainees

I've been going on and on about whether the US is holding people in secret interrogation camps abroad. Now AP reports that the Red Cross Fears U.S. Is Hiding Detainees and has been expressing this concern to the US for some time without getting a satisfactory reply:

But Notari told The Associated Press that some suspects reported as arrested by the FBI on its Web site, or identified in media reports, are unaccounted for.

“Some of these people who have been reported to be arrested never showed up in any of the places of detention run by the U.S. where we visit,” Notari said.

She said she had read media reports that some people are being held at Diego Garcia, a British-held island in the Indian Ocean used as a strategic military base by the United States, but the ICRC has not been notified of any prisoners there.

“We just simply have absolutely no confirmation of this in any formal way,” she said.

The U.S. government has not officially responded to a Red Cross demand for notification of all detainees, including those held in undisclosed locations, she said.

That request was made by ICRC President Jakob Kellenberger in January during a visit to Washington that featured meetings with Secretary of State Colin Powell, Deputy Defense Secretary Paul Wolfowitz and National Security Adviser Condoleezza Rice.

“So far we haven't had a satisfactory reply,” Notari said.

This is a serious issue.

Posted in Law: International Law | 9 Comments

Today’s Trifecta–What Does it All Mean? (Pt. II: Guantanamo)

“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”

So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I'm not entirely happy with how the majority got there.

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Posted in Guantanamo, Law: Constitutional Law, Law: International Law | 1 Comment

Guantanamo is NOT a Lawless Place

The main opinion is by Stevens. The whole LONG thing is here (.pdf). I'm reproducing the syllabus in the jump.

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Bush Ordered “Humane” Treatment in Feb. 2002. Then What?

This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.

This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don't have rights, but doesn't say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.

The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”

al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it's possible to tell who is al-Qaida and who isn't just by looking at them?]

al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).

The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”

On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).

Note also what's not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there's a separate order for the CIA with more … flexibility?

It's also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President's closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don't know what if anything came of it.

In short, we don't know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.

UPDATE: The New York Times reports

White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.

Full text of the Feb. 7, 2002 Bush order below.

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Posted in Iraq Atrocities, Law: Constitutional Law, Law: International Law | 50 Comments

Please, No US Gulag

Back in May we learned of allegations of excessive violence in a CIA-run secret prison and about the CIA's successful move to exempt itself from any restraints on questioning methods that might apply to the armed forces. (Then we learned about the various Torture Memos, which cast doubt on whether those restraints existed….)

Just yesterday we learned about one, then another, Rumsfeld-approved 'ghost' detainee, unpersons, hidden from the Red Cross, in violation of the 4th Geneva Convention. Oh, wait, it's today now, make that 13 ghost detainees.

It remains unclear how many of CIA prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them. Until now I had not seen an attempt to list the military prisons either.

Thanks to a report released yesterday, we now have a start on some numbers.

In Ending Secret Detention (.pdf), Human Rights First (formerly the Lawyers' Committee for Human Rights), compile a list of the US world-wide prison empire, a list dominated by military-run camps in Iraq and Afghanistan.

Consider it a first approximation. It's still a long list:

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Posted in Law: International Law, National Security | 1 Comment