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President Abraham Lincoln’s Involvement in the U.S.-Dakota War of 1862

May 21, 2013
President Abraham Lincoln

President Abraham Lincoln

Governor Alexander Ramsey

Governor Alexander Ramsey

Edwin Stanton

Edwin Stanton

 

 

 

 

 

 

 

 

On August 21, 1862, President Abraham Lincoln learned about the start four days earlier of the U.S.-Dakota War in southern Minnesota. This was the news in a telegram from Minnesota Governor Alexander Ramsey to U.S. Secretary of War Edwin Stanton. It said, “The Sioux [Dakota] Indians on our western border have risen, and are murdering men, women, and children.” [1]

Another telegram came from Governor Ramsey four days later (August 25th). He said the War was worsening, and the “panic among the people has depopulated whole counties.” As a result, Ramsey requested an extension of the deadline for a U.S. draft of an additional 5,360 men for the Civil War.

This was not good news for Lincoln and his Administration. The Civil War was not going well for the North, which desperately needed more troops. Indeed, earlier that month the President had ordered the call up of 300,000 additional men. Although Minnesota’s quota of 5,360 was not large, such an extension could set a dangerous precedent for other states and thus the Union Army. In addition, the Administration needed the troops because of fear that the Confederate states were attempting to enlist Indians in the northwest as allies.

Therefore, Secretary Stanton denied Ramsey’s request, prompting the latter’s August 27th direct request to Lincoln for a month’s extension to cope with half of the state’s population being “refugees.” This time Lincoln responded the same day to Ramsey. Lincoln’s telegram said, “Attend to the Indians. If the draft can not proceed, of course, it will not proceed. Necessity knows no law. The government cannot extend the time.” (Emphases in original.) In other words, a de facto extension was granted.

General John Pope

General John Pope

In addition, on September 5th the Administration granted another Ramsey request, this one to create a new military Department of the Northwest. Its commander appointed that day by Lincoln was General John Pope, who had just suffered defeat at the Second Battle of Bull Run (Second Manassas) and whom Lincoln wanted out of the Civil War.

Pope arrived in Minnesota on September 16th and immediately wired his superior in Washington, D.C. that there would be a loss of half the population of Minnesota and Wisconsin and “a general Indian war all along the frontier, unless immediate steps are taken to put a stop to it.”

Colonel Henry H. Sibley

Colonel Henry H. Sibley

Therefore, General Pope ordered Colonel Henry Hastings Sibley to destroy Indian farms and food. Pope said, “It is my purpose utterly to exterminate the Sioux [Dakota] if I have the power to do so and even if it requires a campaign lasting the whole of next year. They are to be treated as maniacs or wild beasts, and by no means as people with whom treaties or compromises can be made.” (Emphasis added.)[2]

By the end of September, however, the U.S.-Dakota war was over with the surrender of many Dakota to the U.S. Army and the escape of the other Indians to the west. Military commissions were then established to try the captured Dakota men. These commission proceedings and President Lincoln’s review of its judgments will be subjects of future posts.

Another important issue was weighing on President Lincoln at this time was preparing the Emancipation Proclamation and deciding when to release it.

He did so in a preliminary version on September 22nd that declared he would order the emancipation of all slaves in any state of the Confederate States of America which had not returned to Union control by January 1, 1863. None returned.

Emancipation Proclamation

Emancipation Proclamation

Thus, the actual Proclamation, which was issued on January 1, 1863, proclaimed all those enslaved in Confederate territory to be forever free, and ordered the U.S. Army (and all segments of the Executive branch) to treat as free all those enslaved in that territory.

[1]  A prior post contained a brief account of the War. This post is based upon Chapter VII “Rebellion in Minnesota: ‘A Most Terrible and Exciting Indian War,’” in David A. Nichols, Lincoln and the Indians: Civil War Policy and Politics (Minn. Historical Soc’y Press; 1978, 2000, 2012). This enjoyable book is regarded as the definitive study of President Lincoln’s policies and actions regarding Native Americans, and a future post will rely upon its discussion of President Lincoln’s review of the U.S. military commission’s convictions and sentences of Dakota men after the War.

[2] General Pope’s statement along with a similar statement at the time by Governor Ramsey raise interesting legal issues that will be discussed in another post.

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Jury Duty

May 18, 2013
Hennepin County Government Center

Hennepin County Government Center

In late April I received a Minnesota Jury Summons ordering me to appear at the Hennepin County Government Center in downtown Minneapolis on May 6th for two weeks of jury duty.[1]

The form advised me that my name “was randomly selected from a list of licensed drivers, state identification card holders and registered voters in [the County].” Each year approximately 30,000 such summonses are issued.

The Summons contained a Qualification Questionnaire that had to be answered and returned to the court within 10 days. In addition to basic personal information, the Questionnaire asked if you were a U.S. citizen, were at least 18 years of age and a resident of Hennepin County, were able to communicate in English, had any physical or mental disability that would affect your ability to serve, had ever been convicted of a felony, had been on jury duty in the State in the past four years and were a judge in the judicial branch.

Although I was eligible for an automatic excuse from such duty for people over 70 years of age, I did not exercise this right. I thought I was fit and able and should fulfill this obligation of citizenship. As a former lawyer who tried some jury cases, I also thought it would be educational and interesting to see the trial process from a different perspective. I thus answered the call for service even though I thought it most unlikely that I would sit on a jury because trial lawyers are reluctant to allow current or former lawyers on a jury due to fear that they would dominate other jurors and use their pre-existing  legal knowledge to influence their decision.

On May 6th at 8:15 a.m. I joined 124 other citizens in reporting for duty in the Jury Assembly Room at the Government Center. Our attendance was taken by having the bar codes on our summonses read electronically.

Before we watched a movie describing the jury system in Minnesota and read the State’s Jury Handbook, we were told there were 105 pending cases that might require juries, that we were not to discuss any cases or read or see any media coverage of cases while we served and that we were not to do any independent Internet or other research or investigation regarding such cases. We also were told not to discuss the cases on any social media until they were over.

Around 10:00 a.m. 14 potential jurors were called and escorted upstairs to the courtroom for a case.

Potential Juror in a Civil Case

Hennepin County Courtroom

Hennepin County Courtroom

A half hour later I was included in a panel of 16 for another case, and we were escorted upstairs to the courtroom of Judge Mel Dickstein[2] for a civil case by an interior design company against Bernard Berrian[3] for alleged unpaid fees for work on a condo in downtown Minneapolis.

Judge Mel Dickstein

Judge Mel Dickstein

After brief introductions of the trial lawyers and their clients, the prospective jurors were subjected to voir dire, questioning by the Judge and then by the lawyers to try to determine if any of us had any reasons why we could not be fair and impartial in this case. This process took an hour in the morning and one and a half hours in the afternoon.

One of the judge’s questions was whether we ever had been deposed, i.e., given sworn testimony before trial. I answered “Yes,” and when I said it had lasted for five days, the Judge asked for my reactions to that experience. I said I often was frustrated and had greater sympathy for the many people I had deposed in my legal career and for the clients I had defended in depositions taken by other lawyers.

When trial lawyers question the prospective jurors, in addition to trying to see if there are reasons for disqualifying an individual, they also have other objectives. They want to obtain a sense of what the individuals are like to aid the lawyers’ exercising their preemptory challenges, i.e., dismissing some individuals for no stated reasons. They also try to give prospective jurors a peak at what their case is about and build rapport with the prospective jurors.

One of the attorneys in this case, I thought, failed in these secondary objectives by engaging in very detailed and unnecessary quasi-cross examination of some of the members of the panel. At least it annoyed me. Finally the judge called the lawyers to the bench and undoubtedly told them to speed up the questioning because thereafter the questioning was much shorter and was soon over.

As I sat in the jury box, I wondered why this case had not settled, as most similar cases do. Each side had two lawyers (or one lawyer and a legal assistant) at the counsel tables, thus increasing the costs of litigation for both parties. In this preliminary phase, we were not told how much money was at stake, but I could not believe it was immense.

Only one of the panel was excused for cause; she was responsible for taking care of her elderly mother. The lawyers then exercised their preemptory challenges. I was one of those thus striken.

I, therefore, returned to the Jury Assembly Room until 4:00 p.m. when I was released for the day. Later I was told that 124 of the 125 citizens in the Room that day had been called upstairs as potential jurors.

The next day (May 7th) 86 other citizens and I reported to the Jury Assembly Room at 9:00 a.m. This included some who had been on On-Call status the prior day. We were told that there were 35 potential jury cases on the trial calendar for the day.

Around 10:30 a.m. a group of potential jurors was called for a case. However, the Room’s computer had gone down, and all of us had to write our names on slips of paper, and the requisite number of slips was drawn at random from a bowl.  I was not included.

At 11: 45 a.m. those of us still in the Room were released for our lunch break.

Potential Juror in a Criminal Case

Judge Lyonel Norris

Judge Lyonel Norris

After we had returned at 1:30 p.m., I was included in a panel of 35 potential jurors and escorted upstairs to the courtroom of Judge Lyonel Norris[4] for a criminal case. The defendant was an African-American man accused of domestic and sexual abuse, as I recall.

Judge Norris and then the lawyers in the case questioned 21 of us who were in the jury box to try to determine if there were any reasons why we could not be fair and impartial jurors in the case. This process lasted the rest of the afternoon until nearly 5:30 p.m. and most of the next morning (May 8th).

We were asked if we or any members of our families, including close friends, had ever been a victim of sexual or physical abuse or ever been accused of such crimes. I was astounded that 9 of the 21 said that they had. Some of the nine were then questioned about the circumstances at the judge’s bench while a “white noise” machine was turned on so that others in the courtroom could not hear what was said. Others of the 9 provided details involving other members of their families in open court. Afterwards one of the 9 was excused when she said she could not be fair and impartial in this case because of the nature of the criminal charges.

I was also surprised by how many of us answered affirmatively to the question of whether we or any members of our families, including close friends, had ever been accused of a crime, including DUI. Most talked about relatives and friends accused of DUI.

Each of the 21 people in the jury box provided basic personal information.  I said that I was a retired lawyer and adjunct law professor, that my wife was also retired, that one of our sons lived in the Twin Cities area and was a principal of a gourmet coffee company, that our other son lived in Ecuador and was the C.E.O. of a non-profit environmental group and that I was an active member of Minneapolis’ Westminster Presbyterian Church.

In response to specific questions, I disclosed I had been a defendant in two civil cases, both of which had been resolved in my favor; that I had testified as a foundation witness in a federal court criminal case; that in the early 1970′s I had been a pro bono (no fee) lawyer for the Minnesota Civil Liberties Union in a lawsuit against a group of Minneapolis policemen for a political raid and that we had obtained compensatory and punitive damages against some of the defendants; that although I had never practiced criminal law, I had become interested in international criminal justice and the International Criminal Court as a result of my teaching international human rights at the Law School; and that my wife had been a volunteer coordinator at Minneapolis’ Neighborhood Involvement Program and Chrysalis Women’s Center which had programs for battered women.

After the questioning of the potential jurors was completed, no one else was excused for cause. Again, however, I was striken by the attorneys.

I returned to the Jury Assembly Room and was excused for lunch. When I returned at 1:30 p.m., I was informed that all of the other potential jurors and I were excused from the balance of our jury duty.

This week I received my State compensation for my jury duty $30.00 ($10.00/day) plus $11.34 for mileage.

Conclusion

I was impressed by the operation of the jury system. People in the Jury Assembly Room were attentive to the instructions and information being conveyed and respectful of the court officials and their fellow potential jurors.

In the two courtrooms the judges and trial lawyers were courteous and respectful of one another and of the potential jurors. I was most impressed with the judges’ emphasis of the need to have fair and impartial jurors and by their questioning of us, especially in the criminal case.

I also got to know some of my fellow prospective jurors and was most impressed by all of our ability and willingness to answer in public questions about our personal lives. I certainly believed that all of us were striving to do our best to provide information to the court about our personal circumstances that might affect our ability to be fair and impartial.

[1] Information about jury service is available on websites for the Minnesota State Courts and for the Hennepin County District Court.

[2] Although I knew or had appeared as an attorney before 19 of the 61 Hennepin County District Judges, I had had no prior experience with Judge Dickstein. Later I did research and discovered that he holds undergraduate and law degrees from the University of Minnesota and was a former Assistant U.S. District Attorney and a former Associate and Partner attorney in the Minneapolis law office of Robins Kaplan Miller & Ciresi, with which I had had several cases in my career. Mr. Dickstein was appointed to the bench in 2002 and elected for retention in 2004 and 2010.

[3] As several other prospective jurors and I stated to the court, we recognized Mr. Berrian as a former professional football player who had played for the Minnesota Vikings football team. After I had been dismissed as a juror in the case, I did some research and discovered that he had his own website.

[4] I also had no prior experience with Judge Norris. Later I did research and discovered that he had been a Law Clerk for Judge Michael J. Davis in state and federal courts, an Assistant Public Defender, Public Defender, Director of the Minnesota Department of Education’s Office of Equity and Assistant Federal Defender before he was appointed to the bench by Governor Mark Dayton in 2011 and then elected to retain his judgeship in 2012. Growing up in Washington, D.C., Mr. Norris in an interview after his judicial appointment said he was a runaway and homeless at age 16. He was fortunate to meet someone “in the business of helping kids,” who lead him to Runaway House and later to Carleton College, one of Minnesota’s premier private liberal arts institutions. There he became interested in law and then attended, and was graduated from, the University of Minnesota Law School.

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Evaluations of President Obama

April 24, 2013

Maureen Dowd of the New York Times on April 21st criticized President Barack Obama. She said “he still has not learned how to govern” and “doesn’t know how to work the system.” The next day a similar critique was made in the Times by two “reporters”–Michael Shear and Peter Baker–that used the bullying President Lyndon Johnson as a model of what a president should do in these circumstances.

I disagree with these criticisms, and my letter to that effect was published in the Times on April 24th. I said,

  • “Maureen Dowd asserts that President Obama ‘still has not learned how to govern.’ I disagree.
  • Last week the Senate, by a good majority, voted in favor of expanded background checks and making straw purchases and gun trafficking a federal crime. Those votes were attributable, in part, to strong advocacy by Mr. Obama and Vice President Joseph R. Biden Jr.
  • The true outrage lies in two places.
  • First is the Senate’s filibuster rule, which is being used by the Republicans to require a supermajority vote of 60.
  • Second is the Republican senators’ determination to prevent Mr. Obama from accomplishing anything. Remember Mitch McConnell’s statement in the last Congress that his top priority was to stop Mr. Obama’s re-election.”

This letter was a synopsis of my post, The Outrageous, Dysfunctional U.S. Senate, and my previous blog posts criticizing the Senate’s filibuster rule and the Republican Senators’ obstructionism.

Two columnists for the Washington Post–Greg Sargent and Jonathan Bernstein–also have taken vigorous exception to the opinions of Maureen Dowd and Messrs. Shear and Baker.

Sargent sees this recent criticism of Obama as focusing on his alleged failure “to put enough pressure on red-state Democratic Senators like Mark Begich.” However, says Sargent, even if all four of the red-state Democrats [who voted against the measure instead] had voted for the measure, it still would not have passed because of the 60-vote requirement of the Senate’s filibuster rule. Moreover, if these four Democrats “were basing their vote in the calculation that they need to achieve distance from the president and signal cultural affinity with their red state constituents, as many have speculated, any open pressure [by Obama] would only make the vote harder for them.”

The plain conclusion for Sargent was “the Republican Party — and the 60 vote Senate — are the prime culprits in the killing of [the bi-partisan background-check bill].”

Bernstein has had enough of others comparing Obama to President Lyndon Johnson. Bernstein pointed out the following reasons why such a comparison is inappropriate:

  1. The situation for Johnson was very different. He had huge majorities in both chambers of Congress, and in the aftermath of a presidential assassination, there was a strong national desire for unity and action.
  2. In the mid-1960s, political parties were much weaker and not as polarized as today.
  3. Although Johnson faced filibusters on key civil rights legislation, he did not face filibusters on every single thing he proposed. Nor did he have to fight a dedicated partisan opposition over every judicial and executive branch nomination.
  4. Obama, on the other hand, to get anything through the Senate needs the votes of Republicans, every one of whom has strong partisan incentives to oppose him. Johnson really never faced anything like that.
  5. “Generally, the political science literature on presidential persuasion emphasizes how little presidents are able to accomplish when it comes to swaying votes in Congress.
  6. “Johnson wasn’t just any president; he was a president who had been a very effective Senate Majority Leader. He came to the White House with years of relationships with many senators; to the extent he was successful, it’s probably not something that’s easy for anyone else to duplicate.”
  7. “Johnson’s bullying style was successful … for a while. By the end of his presidency, it wasn’t working any more. Getting a reputation as an effective negotiator has a lot of advantages, but getting a reputation as a bully who can’t be trusted creates a lot of problems — even if bullying can be effective in the short run.”

I, therefore, continue to be a strong supporter of our President and a severe critic of the dysfunctional U.S. Senate (and the House of Representatives too).

 

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Latest U.S. Report on Human Rights Around the World

April 24, 2013

StateDeptlogo

On Friday (April 19th), the U.S. Department of State released its latest annual Country Reports on Human Rights Practices.[1]

In his Preface, Secretary of State John F. Kerry said, “It is in our interest to promote the universal rights of all persons. Governments that respect human rights are more peaceful and more prosperous. They are better neighbors, stronger allies, and better economic partners. Governments that enforce safe workplaces, prohibit exploitative child and forced labor, and educate their citizens create a more level playing field and broader customer base for the global marketplace. Conversely, governments that threaten regional and global peace, from Iran to North Korea, are also egregious human rights abusers, with citizens trapped in the grip of domestic repression, economic deprivation, and international isolation.”

Therefore, Kerry continued,” we advocate around the world for governments to adopt policies and practices that respect human rights regardless of ethnicity, religion, gender, race, sexual orientation, or disability; that allow for and honor the results of free and fair elections; that ensure safe and healthy workplaces; and that respect peaceful protests and other forms of dissent.”

In so doing, Kerry acknowledged that “from our own experience [we know] that the work of building a more perfect union – a sustainable and durable democracy – will never be complete.”

The Introduction to the Report highlighted these five developments from 2012.

  1. Shrinking space for civil society activism around the world. Active participation of civil society in determining policies for the society is an important part of human rights. Yet in 2012, many governments “continued to repress or attack the means by which individuals have the ability to come together, air their views, and put forward their own proposals.” Mentioned specifically in this regard were Iran, Venezuela, Russia, Egypt, Bangladesh and China. [2]
  2. The ongoing struggle by people in the Middle East and North Africa for democratic change. Although there were some encouraging changes in this region, there also was “erosion of protections for civil society, sexual violence against women, violence against and increased marginalization of members of religious minorities, and escalating human rights violations.” This was most pronounced in Syria, but significant problems in this regard were seen in Bahrain and Egypt.
  3. Steps toward emerging democracy and a tentative opening for civil society in Burma. In 2012 Burma “continued to take significant steps in a historic transition toward democracy.” These changes are “the result of hard work by the Burmese people and sustained U.S. and international pressure to reform.” This transition, however, is not yet complete. Much work remains to be done.[3]
  4. The game-changing nature of information and communication technologies, in the face of increased suppression of traditional media and freedom of expression.  New technologies have made information more widely available throughout the world. Yet some governments seek to stop the free press. The world-wide number of journalists killed or imprisoned increased. Some governments used counter-terrorism as a “pretext for suppressing freedom of expression.”  Others endeavored to restrict internet freedom. Ecuador was cited as an example of a state where the president publicly criticized specific journalists and encouraged lawsuits to be brought against them, where a ban was instituted on press coverage favoring one candidate, philosophy or political theory and where the government used legal pretexts to harass and close several media outlets.[4]
  5. The continued marginalization of and violence against members of vulnerable groups. Too many governments “continue to persecute, or allow the persecution of, members of religious and ethnic minorities; women; lesbian, gay, bisexual and transgender (LGBT) people; people with disabilities; migrants; and members of other vulnerable populations, including tribal communities.” Anti-Semitism in the Middle East, Europe and Latin America was specifically mentioned as a problem.

These reports have been prepared by the State Department pursuant to a 1961 federal statute. Since then other federal statutes require U.S. foreign and trade policy to take into account countries’ human rights and worker rights performance.

Since 1976 a Coordinator of Human Rights (later upgraded to an Assistant Secretary) in the Department of State has the overall responsibility for preparing these reports based upon information from U.S. embassies and consulates abroad, foreign government officials, nongovernmental and international organizations, published reports, foreign government officials, jurists, the armed forces, journalists, human rights monitors, academics, and labor activists.

[1]  News of the Report in the U.S. media has been virtually nonexistent. Here is the New York Times article on the Report.

[2] On April 21st China responded to the U.S. criticism with “The Human Rights Record of the United States in 2012.” This year, the Chinese report focused on U.S. gun crime, citing “astonishing casualties”; growing poverty in the U.S. and a wide wealth gap; and America’s overseas wars. It also singled out what it said was low voter participation in U.S. elections and the detention of terrorism suspects in Guantánamo.

[3] Similar recent reports about Burma come from Human Rights Watch, Former South African Archbishop Desmond Tutu and a Burmese Buddhist. On the other hand, the government continues to declare amnesties and release political prisoners, and we continue to be inspired by Aung San Suu Kyi’s, whose  acceptance in 2012 of her Nobel Peace Prize of 1991 was the subject of an earlier post.

[4] Ecuador’s wide-ranging measures to squelch hostile journalism have been the subject of persistent and detailed criticism by the Inter-American Commission on Human Rights, and as discussed in a prior post Ecuador in retaliation has mounted, and continues to mount, a campaign to try to weaken the Commission and thereby its criticism of Ecuador.

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U.S. Supreme Court Severely Limits Application of the Alien Tort Statute

April 18, 2013

On April 17, 2013, the U.S. Supreme Court issued a decision in Kiobel v. Royal Dutch Petroleum Co. that severely limited the application of the Alien Tort Statute (ATS),[1] which provides that the U.S. district courts “shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].”[2]

The Court unanimously decided that the ATS did not cover a lawsuit by Nigerian plaintiffs for money damages against corporations incorporated in the Netherlands, the U.K. and Nigeria for their alleged aiding and abetting the Nigerian military and police’s beating, raping, killing and arresting of Nigerians and destroying and looting their property, all in Nigeria.[3]

The Court, however, differed, 5 to 4, on the rationale for this conclusion.

The Majority’s Rationale

The opinion for the Court by Chief Justice John Roberts, expressing the majority’s rationale, held that the Court’s presumption against extraterritorial application of federal statutes applies to claims under the ATS and that nothing in the ATS rebutted that presumption. Therefore, said the Chief Justice, this “case seeking relief for violations of the law of nations occurring outside the [U.S.] . . . is barred.”[4]

This presumption, according to Roberts, was recognized in these precedents from the Court in 1957, 1991, 2007 and 2010, which were referenced by him as follows:

  • The 1957 case, Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957), was merely quoted in the 1991 case to say, “For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.”
  • The 1991 case, EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991), said this presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” After the above quotation from the Benz case, the Court in the 1991 case continued, ” The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.”
  • The 2007 case, Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454 (2007), said the “presumption [assumes] that [U.S.] . . . law governs domestically but does not rule the world.”
  • The 2010 case, Morrison v. National Australian Bank Ltd., 561 U.S. ___, ___ (2010), said this canon of statutory construction provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” This case, noted the Chief Justice, said “the question of extraterritorial application was a ‘merits question,’ not a question of jurisdiction.”

In discussing whether and how this presumption applied to the ATS, the Chief Justice first disposed of the Morrison case’s limitation of the presumption to the merits whereas the ATS was only jurisdictional as established by the Supreme Court in Sosa v. Alverez-Machain, 542 U.S.692, 713 (2004). Said Roberts, “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”

Roberts then found nothing in the ATS itself that suggested a congressional intent that it have extraterritorial application. It refers to “violations of the law of nations,” but such violations can occur in the U.S. It says it covers “any” civil action, but the Court in decisions in 1949 and 2005 had established that generic terms like “any” or “every” do not rebut the presumption. It covers actions for “torts,” but that word does not evidence such an intent.

Nor, according to Roberts, did the historical context of the 1789 adoption of the ATS overcome the presumption. At the time, as Sosa noted, two of the three recognized violations of the law of nations at the time–violation of safe conducts and infringement of the rights of ambassadors–had no extraterritorial application.

The other recognized violation in 1789–piracy–was not as easy for the Chief Justice to get around. He said, “Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the [U.S.] . . . or any other country.” Although the Court “has generally treated the high seas the same as foreign soil for purposes of the presumption,” Roberts refused to regard that as evidence of congressional intent for extraterritorial application. Said Roberts, “Applying U.S. law to pirates . . . does not typically impose the sovereign will of the [U.S.] . . .  onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.”

Finally, according to Roberts, “there is no indication that the ATS was passed to make the [U.S.] . . . a uniquely hospitable forum for the enforcement of international norms . . . It is implausible to suppose that the First Congress wanted their fledgling Republic–struggling to receive international recognition–to be the first [custos morum or guardian of manners or morals of the  whole world]. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.”

Applying these principles to the Kiobel case itself, Roberts said “all the relevant conduct took place outside the . . .  [U.S.]. And even where the claims touch and concern the territory of the . . . [U.S.], they must do so with sufficient force to displace the presumption against extraterritorial application.” A “mere corporate presence” in the U.S. such as an office of a corporate affiliate of the corporate defendants in this case had would not suffice.

The Minority’s Rationale

The minority’s rationale was set forth in the concurring opinion of Justice Breyer, which was joined by Justices Ginsburg, Sotomayor and Kagan.

Breyer first rejected use of the presumption against extraterritoriality because the ATS’ use of “alien,” “treaties” and “the law of nations” clearly demonstrate that Congress had foreign matters in mind.

Moreover, piracy was clearly contemplated as covered by the statute in 1789 and takes place abroad. The Chief Justice’s treatment of piracy, however, Breyer implied, is erroneous. Says Breyer, “the robbery and murder that make up piracy do not normally take place on the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies.” Thus, ‘applying U.S. law to pirates’ does typically involve applying our law to acts taking place within the jurisdiction of another sovereign.”

On the other hand, Breyer agreed with Roberts that pirates “were fair game wherever found, by any nation,” but not, as Roberts said, because they did not operate within any jurisdiction, but because pirates were “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.”  Today, according to Breyer, torturers and perpetrators of genocide are today’s pirates.

Breyer then said that international jurisdictional principles justified the conclusion that ATS jurisdiction exists where “(1) the alleged tort occurs on American soil, [or] (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest.” One such national interest, according to Breyer,  is “preventing the [U.S.] from become a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

With respect to Kiobel itself, Breyer noted that the corporate defendants were foreign corporations who were present in the U.S. only through a small office of a corporate affiliate, that the plaintiffs are not U.S. nationals, that the conduct at issue took place abroad and that the alleged illegal corporate conduct was not direct, but accessory. It, therefore, “would be farfetched to believe . . . that this legal action helps to vindicate a distinct American interest.”

Conclusion

The majority’s rationale essentially obliterates the 34 years of ATS jurisprudence carefully developed by the lower federal courts. It should lead to the immediate dismissal of many pending ATS cases.[5]

I disagree with the result in this case and with the majority’s rationale because I believe that the ATS has been an important way of expanding the reach of international human rights norms and because the Congress in these 34 years has not chosen to amend the ATS to negate this jurisprudential development. Indeed, when Congress in 1991 adopted the Torture Victims Protection Act, it recognized and approved this ATS jurisprudence.

Moreover, the Supreme Court’s creation and elaboration of the presumption against extraterritorial application, I believe, is a development of the last 60 years and was not clearly known to the Congress when it initially adopted the ATS in 1789. It, therefore, seems unfair and inappropriate to employ this interpretative presumption to construe the ATS. In more recent years, on the other hand, the Congress should be aware of this presumption in drafting statutes.

I also continue to be baffled by everyone’s failure to include in the analysis of the congressional intent behind the ATS the fact that Congress in 1948 re-enacted the ATS as part of the Judicial Code (title 28 of the U.S. Code). That year–1948– was a very important year in the development of the law of nations regarding human rights.  The U.N. Charter–a treaty ratified by the U.S.–was three years old, and one of its purposes was “promoting and encouraging respect for human rights” (Article 1(3)) while its Economic and Social Council was directed to set up a commission “for the promotion of human rights” (Article 68). Such a commission was established, and in 1948 its Universal Declaration of Human Rights and its Convention on the Prevention and Punishment of the Crime of Genocide were approved by the U.N. General Assembly. Such an appreciation should broaden the types of “torts in violation of the law of nations” beyond the three discussed by the Chief Justice.

Justice Breyer’s legitimate concern for the U.S. interest in not being a safe haven for the common enemies of mankind, as discussed in a prior post, has been recognized by the Congress in several statutes–the Intelligence Reform and Terrorism Prevention act of 2004 and the Magnitsky Act of 2012–and by the legal proceedings to remove or deport such common enemies of mankind from the U.S. by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency and by the criminal prosecution of other such individuals for immigration fraud and perjury.

Finally, we must remember that this is a case of statutory interpretation, and Congress could always amend the ATS or adopt a new statute to overrule this decision. In a future post, I will set forth a draft outline of such a new statute even though I am not hopeful that this dysfunctional U.S. Congress will be prepared to take such action in the near future.

[1] The New York Times and the Washington Post obviously covered this decision. The Times editorial board criticized the decision while the Wall Street Journal reached the opposite conclusion.

[2] Many prior posts have discussed the ATS. Some of these focused on the Kiobel case itself.

[3] The Court did not address another issue presented by this case–whether corporations could be held liable under the ATS.

[4] The Chief Justice’s opinion was joined by Justices Scalia, Kennedy, Thomas and Alito. Justice Kennedy also authored a short concurring opinion, which stated, “Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the [Torture Victims Protection Act] . . . nor by the reasoning and holding of today’s case; and in these disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.” Another concurring opinion was submitted by Justice Alito joined by Justice Thomas; it said, “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality–and will therefore be barred–unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations.”

[5] For example, the Supreme Court’s decision should lead to the dismissal of the ATS claims against Ernesto Zedillo, the former President of Mexico, but the claims against him under the Torture Victims Protection Act should survive for the court’s ruling on the immunity issue.

 

 

 

 

 

 

 

 

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The Outrageous, Dysfunctional U.S. Senate

April 17, 2013

Today (April 17th) the U.S. Senate again demonstrated its dysfunctionality in outrageously refusing to vote on the merits on adopting reasonable, common-sense legislation to combat the horrendous toll of gun violence in the U.S. Just look at the New York Times and Washington Post articles on this day in the Senate.

Under the unconstitutional Senate filibuster rule that requires 60 votes to end debate and proceed to voting on the merits, the compromise measure crafted by Democratic Senator Joe Machin and Republican Senator Pat Toomey to require background checks for sales of guns online and at gun shows (but not between neighbors and family members) failed to get the 60 votes although it had the support of 54% of the Senate.

Similarly a measure to increase enforcement and reporting on gun purchases by mentally ill persons had majority support (52%), but not the “necessary” 60 votes and thus failed to advance.

Another failure despite majority support (58%) was a measure to make straw purchasing and trafficking of guns a federal crime.

One gun control measure–renewal and strengthening of a ban on assault weapons and high-capacity magazines–also failed to even get a simple majority, 40-60.

For me these actions once again show the outrageousness of the filibuster rule and the failure of the Senate earlier this year to abolish or make significant changes to that rule. I have frequently railed against the filibuster rule and practice in this blog.

As President Obama said afterwards, it was a “shameful day for Washington.”

 

 

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Former Mexican President Tells U.S. Court To Ignore Mexican Court Decision

April 17, 2013

This blog has been following the civil lawsuit for money damages in U.S. federal court against Ernesto Zedillo, the former President of Mexico, for his alleged involvement in a 1977 massacre in a Mexican village and his claim for immunity from same.

That request for immunity has prompted another lawsuit, this in a Mexican court, over the legality of the request under Mexican law. In early March 2013 the Mexican court decided that the request for such immunity by the Mexican Ambassador to the U.S. State Department was illegal, and on March 28th that Mexican court decision was filed with the U.S. court.

The latest move in this duel between the two court systems took place on April 12th when Mr. Zedillo told the U.S. court that it should just ignore the Mexican court.

That was the bottom line in the Defendant’s Response to Plaintiffs’ Notice Regarding Mexican Trial Court Decision that was filed that day in the U.S. District Court for the District of Connecticut.

Although Mr. Zedillo in this document noted that his pending appeal of the Mexican court decision had been joined by the current Mexican President and Secretary of Foreign Affairs, that decision is asserted to be “irrelevant” to the U.S. case, and the U.S. court should “promptly and finally” dismiss the U.S. case. This conclusion purportedly follows from these premises:

  • The U.S. Department of State decides whether immunity for a foreign official advances U.S. interests and U.S. law.
  • The U.S. Department of State does not judge whether a foreign nation’s request for immunity for one of its former officials is in accordance with that country’s laws.
  • The U.S. Department of State already has decided that immunity in the U.S. case for Mr. Zedillo is in accordance with U.S. law and foreign policy and so advised the U.S. court.
  • Under U.S. law, U.S. courts are required to honor the U.S. Department of State’s decisions on immunity of former foreign officials.

Although I do not quarrel with these premises, I do not think that they support the conclusion put forward by Mr. Zedillo.

If the Mexican trial court decision is sustained on appeal in Mexico, then that should result in the Mexican government’s rescission of the earlier request for immunity by its Ambassador. That hypothetical situation, to me, looks like the case where the State Department recently refused to support immunity in a U.S. case for a former Somali official because there was no Somali government that could ask the Department for such immunity.

In any event, if I were the U.S. judge in the Zedillo case, I would postpone making any decision on immunity for Mr. Zedillo until after the Mexican case was concluded and the U.S. State Department had expressed its views on the impact of the Mexican case. Perhaps I would now ask the State Department for its views before the Mexican case had concluded, but I anticipate the Department would say it was waiting for a final judgment in the Mexican case before it expressed its views.

This blog will continue to watch for further developments in these cases.

 

 

 

 

 

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Enforcement of International Human Rights Norms with U.S. Immigration Laws

April 14, 2013

Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]

Introduction

First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . .  be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]

Generals Casanova (left) and Garcia (right)

Generals Casanova (left) and Garcia (right)

This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”

Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).

Innocente Orlando Montano

Innocente Orlando Montano

This set of provisions currently is being used with respect to another former Salvadoran military officer,  Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]

Sergei Magnitsky Grave

Sergei Magnitsky Grave

Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]

Discussion

 Vides Casanova

After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]

The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . .  command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.

On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.

On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.

Jose Guillermo Garcia

In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]

On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”

The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).

  • Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
  • Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
  • Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
  • Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He  admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
  • During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.

Innocente Orlando Montano

In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.

On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.

Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending  one of 51 months while Montano argues that is too long.

The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:

  • During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
  • Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
  • In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
  • After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of  investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
  • When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
  • A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
  • Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.

Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.

Magnitsky Act Developments

On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.

The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.

The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.

Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”

Conclusion

These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.

Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based human rights organization “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” It ”uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.”

The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.

Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.

[1]  Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.

[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)

[3]  The ATS (28 U.S.C.§1350) provides that U.S.”district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].” Many prior posts have discussed this statute and cases thereunder.

[4]   The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.

[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.

[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . .  Magnitsky, financially benefitted from the detention, abuse, or death of . . .  Magnitsky, or was involved in the criminal conspiracy uncovered by  . . . Magnitsky.” That presidential  list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”

[7]  A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.

[8] A summary of this immigration case is available on the web.  Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.

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Judging on the U.S. Court of Appeals for the D.C. Circuit

April 11, 2013

The U.S. Court of Appeals for the District of Columbia Circuit, the second most important court in the U.S., is once again back in the news.

"Sri" Srinivasan

“Sri” Srinivasan

The immediate issue is the need for the U.S. Senate to confirm President Obama’s appointment of Srikanth “Sri” Srinivasan to one of the four vacancies on this Court.[1]

Srinivasan has a blue-chip resume. Currently he is the Principal Deputy Solicitor General of the U.S. and has argued 20 cases before the U.S. Supreme Court. He previously clerked for the Reagan-appointed Supreme Court Justice Sandra Day O’Connor. He also served with distinction in the Justice Department for both Presidents George W. Bush and Barack Obama and with the Washington, D.C. office of the eminent law firm of O’Melveny & Myers. A native of India, Srinivasan grew up in Kansas and earned a bachelor’s degree in 1989 from Stanford University and a J.D./M.B.A. degree in 1995 from its Law School and Graduate School of Business.

On April 10th Srinivasan had an uneventful 90-minute hearing before the Senate Judiciary Committee. His nomination is strongly supported by the Obama Administration and by noted conservative and liberal lawyers and academics.

The next step is for the Committee to vote on whether to send this nomination to the Senate floor for a vote. At least one of the eight Republican members of the Committee, Orrin Hatch, said he was impressed and would support such a motion. Assuming all 10 Democratic Committee members support such a motion, then it should be approved by a vote of at least 11 to 7. Then the whole Senate would vote on the nomination unless there was a filibuster of same.[2]

Perhaps the partisan wrangling over appointments to this Court is overwrought.

Senior Judge David B. Sentelle

Senior Judge David B. Sentelle

Evidence for a less partisan view of this Court is found in its April 5th Presentation Ceremony of the Portrait of D.C. Circuit Senior Judge David B. Sentelle, who was appointed to the Court in 1987 by Republican President Ronald Reagan. For remarks of appreciation from his own Court, Judge Sentelle chose Circuit Judge David S. Tatel, who was appointed by Democratic President Bill Clinton in 1994.[3]

Judge David S. Tatel

Judge David S. Tatel

Judge Tatel commented on the apparent oddity of his speaking for Judge Sentelle.  Tatel said, “those who believe that judges’ decisions are driven by ideology may wonder why Dave [Sentelle] asked me to speak. After all, you would be hard pressed to find two judges with more different backgrounds, different worldviews, different beliefs, and, indeed, different shoes than we two Davids. But those who focus on these differences do not understand what it means to be a federal judge, do not understand this Court’s long tradition of collegiality, and surely do not understand Dave Sentelle.”  Tatel continued, “when Judge Sentelle and I sit together, we very rarely disagree.” In “the nineteen years we’ve served together, we have disagreed less than 3% of the time.”

The answer to why there had been so little disagreement, according to Judge Tatel, was “Judge Sentelle’s decisions are driven not by personal preferences, but by a conscientious application of the principles and texts that bind us. Uncommonly peppered with the hallmarks of restrained decision-making, his opinions are full of phrases like, ‘If the intent of Congress is clear, that is the end of the matter’; ‘Courts must accord substantial deference to Congress’s findings’; ‘We are bound by the decisions of the Supreme Court’; ‘One three judge panel has no authority to overrule another’; ‘We owe agency fact-finding great deference’; ‘Issues not raised on appeal are deemed waived’; and ‘Absent jurisdiction we are powerless to act.’ For Judge Sentelle, “the tenets of judicial restraint are not mere slogans to be invoked when convenient; they are the building blocks of all that we do here.”

Judge Tatel also complimented Judge Sentelle’s judicial opinions. According to Tatel, Judge Sentelle “crafts opinions that treat every one of his colleagues, as well as every citizen who appears before us, with respect and a true generosity of spirit. Flipping through his opinions, including his dissents, you’ll find no sarcasm, no belittling remarks, no callous dismissals. This is, after all, a United States Court, and Judge Sentelle’s opinions are a credit to the dignity of this institution. In his five years as our Chief Judge, Dave has protected our proudly nurtured tradition of collegiality.”

In conclusion, Judge Tatel said, Judge Sentelle is “a man who has the greatest respect for the office he holds and an abiding dedication to a life of service and the rule of law.”

[1] President Obama’s only other eminently qualified nominee to the court, Caitlin J. Halligan, was named in 2010 to fill the vacancy created by the elevation of John G. Roberts Jr. to the Supreme Court. In March of this year Republicans for a second time mounted a filibuster that prevented the Senate from voting on Ms. Halligan, and President Obama granted her request to withdraw her nomination saying, “This unjustified filibuster obstructed the majority of Senators from expressing their support. I am confident that with Caitlin’s impressive qualifications and reputation, she would have served with distinction.” Her nomination was supported by the New York Times and Washington Post .

[2] If the Srinivasan nomination is filibustered , then Senate Majority Leader Harry Reid has threatened to modify the Senate Rules to bar such filibusters on at least judicial nominees. I frequently have voiced my strong disapproval of the filibuster rule and practice.

[3] Judge Tatel is a University of Chicago Law School classmate and friend of mine, and I have written a post about his opinion for the D.C. Circuit in the Voting Rights Act case now pending in the U.S. Supreme Court.

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Are the International Criminal Court’s Kenyan Cases Collapsing?

April 9, 2013

 

Uhuru Kenyatta

Uhuru Kenyatta

William Ruto

William Ruto

 Today before a cheering crowd of 60,000 in a Nairobi stadium, Uhuru Kenyatta and William Ruto were inaugurated as the new president and deputy president of Kenya. In his inaugural speech Kenyatta made a  veiled reference to the pending charges against him and other Kenyans in the International Criminal Court (ICC) when he said, ““Kenya will strive to uphold our international obligations” but that these obligations must be based on “mutual respect.”

Also in attendance was Uganda’s president, Yoweri Museveni, who told the crowd he applauded Kenyans for rejecting the “blackmail” of the ICC, which was steered by “arrogant actors” to “install leaders of their choice in Africa and eliminate those they don’t like.”

As discussed in a prior post, both Kenyatta and Ruto and another Kenyan (Joseph Arap Sang) are scheduled to go to trial in the next three months before the ICC in the Hague on charges of crimes against humanity in connection with violent deaths after the Kenyan election in 2007.

Now there are rumblings that suggest these three cases are collapsing not long after three other Kenyan cases had been terminated. [1]

The key case is Kenyatta’s. The Office of the Prosecutor (TOP) recently informed the Court that four of the 12 witnesses against Kenyatta have recanted their testimony because of security threats and fears of retaliation against their families.[2]

In response Kenyatta’s lawyers have asserted that the charges against their client were based on false evidence and have asked the ICC’s Trial Chamber to refer the case to the Pre-Trial Chamber for reconsideration of its January 2012 decision confirming the charges.

On April 5th the ICC Prosecutor issued a public statement deploring “the recent stream of sensationalist reports in the Kenyan media, on the level of witness cooperation [in these cases]. Witness protection remains one of our highest priorities. The Office will therefore not be drawn into any public speculation on the status of witnesses.  The courage and integrity of witnesses are essential to the Court’s determination of the truth, which is at the heart of justice. It is in the interest of all concerned to allow justice to take its course.”

A long-time observer of Kenya has said that the Kenyan Supreme Court’s March 30th validation of the election of Kenyatta “secured Kenya’s place as a shining international symbol of impunity” and that the ICC “case against Kenyatta now seems doomed.” According to this observer, witness intimidation and bribery “will only escalate, and it’s hard to see any Kenyan being brave — or foolhardy — enough now to take the witness stand against a head of state.”

This observer even thought “the failure of the Kenyatta case may be the first chime of the death knell for the I.C.C.”

We will have to stay tuned to see what happens in these cases. For this supporter of the Court, the outlook is not bright.

[1]  The Court’s Pre-Trial Chamber has refused to confirm charges against two other Kenyans (Henry Kiprono Kosgey and Mohammed Hussein Ali), and in March 2013 the Office of the Prosecutor withdrew the charges against another Kenyan (Francis Kirimi Muthaura) because of problems with prosecution witnesses, including alleged bribery. These cases also were discussed in the prior post.

[2] The same problem has emerged with at least one of the witnesses against the other two defendants (Ruto and Sang).

 

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