Update on Congressional Actions Regarding Cuba 

A June 12th post reviewed the status of appropriations bills relating to Cuba in the U.S. House of Representatives. Now we look at what happened last week in Congress on these and other measures.

National Defense Authorization Act FY 2016[1]

On June 18, the Senate passed its version of the spending authorization for the Department of Defense for Fiscal Year 2016.

The White House threatened to veto the bill. The main bone of contention is the bill’s continuation of sequestration of funds and use of so-called budget gimmicks. The White House opposes also opposes the bill because it contains language that it claims would make it hard to shutter the U.S. prison facility in Guantánamo Bay, Cuba. It calls the process for winning congressional approval of closing Guantánamo “unnecessary and overly restrictive.”

The same day, however, Senator John McCain (Rep., AZ) said that Defense Secretary Aston Carter had pledged to come forward to Congress with a plan to close the Guantanamo prison facility. Even if the administration hands over a plan to close the facility, however, it’s unclear if it could get passed through Congress. McCain’s proposal divided Republicans on the Senate Armed Services Committee and he faces opposition from House lawmakers.

Now the Senate and House have to confer and negotiate a bill that can pass both chambers. One of the major challenges are the different provisions regarding the Guantanamo detention facility and detainees:

  • The Senate’s version of the bill provides the President with a path to close the prison in Guantanamo if Congress signs off on the plan.
  • The House version does not include an option for closing the prison, but instead would maintain restrictions on transferring prisoners. The House bill also adds additional certification requirements, bans detainees from being transferred to “combat zones” and blocks any transfers of prisoners to the United States including for medical purposes.

Intelligence Authorization Act, FY 2016 (H.R.2596)[2]

On June 16 the House passed, 247-178, the Intelligence Authorization Act FY 2016 (H.R.2596). It outlines policy for 16 federal intelligence agencies, including the CIA and .the National Reconnaissance Agency. After the vote, John Boehner (Rep., OH), the Speaker of the House, said, “This bill sustains and strengthens our capabilities to combat terrorism, cyberattacks, and the proliferation of weapons of mass destruction, while making every taxpayer dollar count.”

The bill’s sections 321 would ban the transfer of certain Guantanamo detainees to the U.S.; section 322 would ban the construction or modification of U.S. facilities to house certain Guantanamo detainees; and section 323 would ban transfer of Guantanamo detainees to combat zones. Sections 331 and 333 would require certain reports to Congress regarding such detainees.

Rep. Adam Schiff (Dem., CA), the top Democrat on the Intelligence Committee, criticized the bill’s banning the government from transferring such detainees to the U.S. or a recognized “combat zone.” Schiff said, “We are not safer because of Guantanamo’s existence. In fact, it makes us more vulnerable by drawing more recruits to the jihad.” Moreover, the definition of “combat zone,” Schiff added, is “so broad as to include allies and partners such as Jordan.” An amendment from Schiff to eliminate the new restrictions failed 176-246.

Before the vote, the White House said, “While there are areas of agreement with the committee, the administration strongly objects to several provisions of the bill,” and “If this bill were presented to the president, the President’s senior advisors would recommend to the president that he veto it.”

Financial Services and General Government Appropriations Act FY 2016[3]

On June 17 the House Appropriations Committee approved the Financial Services and General Government Appropriations Act FY 2016 on a straight party-line vote, 30 to 20.The Committee’s press release states the bill provides $20.2 billion in funding for “critical national programs to enforce U.S. laws , maintain a fair and efficient judicial system, and help small businesses grow” while reducing or eliminating lower-priority programs and cutting “poor-performing agencies—including an $838 million reduction to the Internal Revenue Service.”

One of the most controversial provisions of the bill was the temporary blocking of the newly implemented net neutrality rules, which was criticized by the White House without a threat of a veto.

As noted in a prior post, according to the Committee’s press release, the bill contains prohibitions on (a) “travel to Cuba for educational exchanges not involving academic study pursuant to a degree program;” (b) “importation of property confiscated by the Cuban Government;” and (c) “financial transactions with the Cuban military or intelligence service.” I, however, am still unable to find these provisions in the bill. I solicit comments identifying these provisions.

In the Committee Rep. Nita Lowey (Dem., NY), the top Democrat of the full committee, offered an amendment that would have removed what she called “20 veto-bait riders” or policy provisions, including these Cuba-related measures. The proposal was blocked on a party-line vote.

Freedom to Travel to Cuba Act of 2015 (S.299)[4]

A prior post discussed the Freedom to Travel to Cuba Act of 2015 that was introduced by Senator Jeff Flake (Rep., AZ). In addition, it now has 44 cosponsors: 36 Democrats, 6 Republicans and 2 Independents.

A recent New York Times editorial endorsed the lifting the ban on travel to Cuba. It said, “The ban — the only travel prohibition American citizens are currently subjected to — never made sense, and it’s particularly misguided in an era of broadening engagement between the United States and Cuba.” Now, “the trajectory is unmistakable. Public opinion polls show that a majority of Cubans on the island and Americans favor engagement. Congress should wait no longer to do its part.”

Cuban Military Transparency Act (S.1489)[5]

On June 3 Senator Marco Rubio (Rep., FL) introduced the Cuban Military Transparency Act (S.1489) with seven cosponsors (Robert Menendez (Dem., NJ), Orrin Hatch (Rep., UT), Tom Cotton (Rep., AR), Ted Cruz (Rep., TX), Cory Gardner (Rep., CO), David Vitter (Rep., LA), Mark Kirk (Rep., IL). It was referred to the Committee on Foreign Relations.

The bill would prohibit a U.S. person from engaging in any financial transaction with or transfer of funds to: the Ministry of the Revolutionary Armed Forces of Cuba or the Ministry of the Interior of Cuba (or any of their subdivisions); a senior member of such Ministries; any agency, instrumentality, or other entity that is more than 25% owned, or that is operated or controlled by, such a Ministry; or any individual or entity for the purpose of avoiding a prohibited financial transaction or transfer of funds that is for the benefit of that individual or entity. Excluded from these bans are the sale to Cuba of agricultural commodities, medicines, and medical devices; remittances to an immediate family member; or assistance in furtherance of democracy-building efforts for Cuba.

The bill would also require (a) the U.S. Attorney General to coordinate with the International Criminal Police Organization (INTERPOL) in order to pursue the location and arrest of U.S. fugitives in Cuba, including current and former members of the Cuban military and (b) the U.S. President to provide reports on the role of the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior in Cuba and the return of property that has been confiscated by the Government of Cuba.

In his press release about the bill, Senator Rubio said, ““It is not in the interest of the United States or the people of Cuba for the U.S. to become a financier of the Castro regime’s brutality. The Cuban Military Transparency Act would prevent U.S. dollars from getting into the hands of the Cuban military and would demand accountability from the Obama Administration regarding fugitives of American justice in Cuba, the return of stolen and uncompensated property and the role of the Ministry of the Revolutionary Armed Forces and the Ministry of the Interior in Cuba.”

The Center for Democracy in the Americas opposes this bill. It admits “that in Cuba, a socialist state with a largely state-owned economy, the military is invested in state-owned businesses, and several of those . . . are dominant players in Cuba’s tourist industry. Given the military’s broad role in Cuba’s economy, any expenditure by U.S. travelers and businesses – including the cost of hotel rooms, telephone calls, airport taxes, the hotel occupancy tax, sales taxes on tourist purchases, resort fees – could be prohibited presumptively unless the traveler or company could persuade [the U.S. Treasury agency] they spent their money in Cuba some other way.” But “how could they prove the negative? Who in Cuba will hand out the forms that say “that hotel room” or “that painting” or “that serving of ropa vieja” didn’t come from an enterprise owned or controlled by Cuba’s military?”

Therefore, according to the Center for Democracy in the Americas, the true purpose of this bill is “to shame, harass, and try to stop every American from visiting Cuba or seeking to do business in Cuba, and to return U.S. policy to its pre-December 17, 2014 goal of starving the Cuban economy and the Cuban people along with it.”

Conclusion

These latest congressional developments reinforce the need for continued vigilance by supporters of U.S.-Cuba reconciliation to pay attention to what is happening in Congress and to continue to express their opinions on these issues to their representatives in that body and to the larger community.

I take pride in the strong support for such reconciliation in the State of Minnesota, so far away from Cuba. A recent article in MINNPOST explored this apparently strange phenomenon. Eric Schwartz, Dean of the Humphrey School of Public Affairs at the University of Minnesota and a non-native Minnesotan, believes there are three main reasons for this fact. First, two of Minnesota’s biggest industries — agriculture and medical devices — have massive potential exports to Cuba. Second, Minnesota’s lack of a large Cuban-American community and its distance from the island mean our lawmakers are not subject to the same pressures as representatives from states like Florida and New Jersey. Third, many of Minnesota’s federal legislators are reasonable people.

I concur in that opinion, but believe Schwartz has missed the fundamental reason for strong Minnesota support for this reconciliation. Many people in this State are interested in what goes on in the world and are actively engaged with the rest of the world through their churches like Minneapolis’ Westminster Presbyterian Church, the Center for Victims of Torture, Advocates for Human Rights, the Minnesota Cuba Committee and various programs at the University of Minnesota and through Minnesotans’ welcoming immigrants and refugees from around the world, especially from Somalia, Viet Nam and Laos, and through major multinational corporations headquartered here like Cargill, which is leading the U.S. Agricultural Coalition for Cuba,3M, Medtronic and General Mills.

I was pleased to read about the change of heart of a prominent Cuban-American Republican who was U.S. Secretary of Commerce in the George W. Bush Administration, Carlos Gutierrez. In an op-ed essay in the New York Times, he said,” it is now time for Republicans and the wider American business community to stop fixating on the past and embrace a new approach to Cuba.” He added, “Some of my fellow Cuban-Americans insist that continuing to squeeze Cuba economically will help the Cuban people because it will lead to democracy. I wonder if the Cubans who have to stand in line for the most basic necessities for hours in the hot Havana sun feel that this approach is helpful to them.”

Gutierrez concluded, “America must look to the future instead — and pursue this opportunity to assist Cubans in building a new economy. There is a lot of work to do, and progress will be slow. However, the business community and my fellow Cuban-Americans and Republicans should not ignore the possibilities ahead. The Cuban people need and deserve our help.”

======================================================

[1] Matishak, White House threatens to veto Senate’s defense spending bill, The Hill (June 18, 2015); Carney, McCain expects Pentagon plan on closing Guantanamo, The Hill (June 18, 2015);Carney, Five challenges for the defense bill (June 21, 2015).

[2] This section of the post is based upon Hattem, House passes intel bill over White House objections, The Hill (June 16, 2015).

[3] This section of the post is based upon the following: House Appropriations Comm., Press Release: Appropriations Committee Approves Fiscal Year 2016 Financial Services Bill (Jun 17, 2015); House Appropriations Comm., Financial Services Appropriations Act FY 2016 (June 9?, 2015); House Appropriations Comm., Report: Financial Services and General Government Appropriations Bill, 2016, No. 114- —( 2015);Trujillo, House panel advances rider to block Internet rules, The Hill (June 7, 2015); Trujillo, Obama administration knocks net neutrality riders in funding bill, The Hill (June 17, 2015)  Shabad, Bill with $838M IRS cut advances in House, The Hill (June 17, 2015).

[4] Library of Congress THOMAS, S.299 Freedom to Travel to Cuba Act of 2015 (Cosponsors)

[5] This portion of the post is based upon the following: Library of Congress THOMAS, Cuban Military Transparency Act; Rubio, Press Release: Senators Introduce Bill To Deny Resources To Castro’s Military and Security Services (June 3, 2015); Center for Democracy in Americas, The Cuban Military Not So Transparent Act (June 19, 2015).

Gratitude III

In “Gratitude I” I expressed gratitude for my educational and professional mentors. In “Gratitude II” the subject was gratitude for my wife, children and grandchildren, my spiritual journey and my financial ability to retire at age 62. Here are some other things to add to my list for thankfulness.

Malcolm Gladwell’s Outliers emphasizes the importance of an individual’s family and place and date of birth as determinants of success. Warren Buffett, the great investor from Omaha, frequently says how fortunate he is to have won the ovarian lottery by having been born born in the U.S. in the 1920’s. They remind me to be grateful for having been born in the U.S.A. It is indeed a great country and provided me with opportunity after opportunity.

I am also grateful that I was born at the end of the Great Depression-era and as a result am a member of a relatively small age-cohort. This has meant that I faced less competition for many of the opportunities I have had. This also meant that I entered the labor force, after all of my university-level education, in 1966 when there was strong demand in the U.S. for new law graduates with good records. Today I read the many stories in the press about the difficulties of contemporary law graduates in finding good jobs, and this is confirmed by the law students I know at the University of Minnesota Law School. I am grateful I was not in that predicament when I was starting out.

Contemporary law graduates and other young people today often finish their student days with large student debts, further exasperating their situation in this difficult job market. Because of the full-tuition scholarships I had over nine years at Grinnell College and the Universities of Oxford and Chicago, I did not have any student debt and did not face this problem. For this I am also grateful.

This last point also uncovers another reason for gratitude. The three scholarships I had were the result of businessmen (George F. Baker and Cecil Rhodes) and lawyers who were financially successful in capitalist systems and who had philanthropic motivations to give back and encourage others.

Elizabeth Warren, a Harvard Law School Professor and a candidate for the Democratic nomination for the U.S. Senate from Massachusetts, is absolutely correct when she says:

  • “There is nobody in this country who got rich on his own. Nobody. You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that   marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did.”
  • “Now look, you built a factory and it turned into something terrific, or a great idea? God bless. Keep a big hunk of it. But part of the underlying social contract is you take a hunk   of that and pay forward for the next kid who comes along.”

The same thought is expressed many times and many ways in the Bible. Here is what the letter to the Hebrews says. “[S]ince we are surrounded by so great a cloud of witnesses, let us also lay aside every weight and the sin that clings so closely, and let us run with perseverance the race that is set before us, looking to Jesus the pioneer and perfecter of our faith.” (Hebrews 12: 1-2.) “Let mutual love continue. Do not neglect to show hospitality to strangers, for by so doing that some have entertained angels without knowing it. Remember those who are in prison, as though you were in prison with them; and those who are being tortured, as though you yourselves were being tortured.” (Hebrews 13: 1-3.)

For all of these blessings, I give thanks to God and to those named and unnamed individuals who helped me along the way.

Gratitude I

It is so easy to credit all of your successes to your own talents and hard work. I know that I too often do that.

Lately, however, I am pausing to acknowledge the many blessings in my life.

My mother and father, Marian Frances Brown and Ward Glenn Krohnke, were directly responsible for endowing me with good genes. They also were loving and nurturing, especially in my early years, and supporting my many activities through college and beyond. Although of modest financial circumstances, my parents were able to afford many of the creature comforts of American middle class life as I was growing up. I did not have to work to provide financial support for the family although in junior and senior high school I had part-time jobs to earn spending money and saving for college. My parents and I were in good health as I grew up with no major illnesses or accidents. I am grateful.

The public schools in my small Iowa home town of Perry did not provide many of the curricular and extra-curricular activities of private schools or large, prosperous suburban school districts in the rest of the country. Yet I had many excellent teachers who did not let me coast through school. The teacher I remember most fondly for this nurturing and challenging was Emma Hepker, who taught speech and English Literature. I also participated in speech contests, football, baseball, track and concert and marching band playing the e-flat alto saxophone. I often focused on the limitations of growing up in this small town far away from where things were really happening. But I can now see that there were benefits from this protective environment. I am grateful.

Grinnell College, the next stop on my educational journey, was challenging and enriching. My major was history with a lot of political science and economics. The professors were excellent, especially Joe Wall, Alan Jones, Samuel Barron, Richard Westfall and George Drake in history, Harold Fletcher in political science and Philip Thomas and John Dawson in economics. As a student at a small college I had the opportunity to participate in many activities, including intercollegiate baseball and football and student government. I am grateful.

In the midst of my Grinnell experience, I had one semester at American University on the Washington Semester Program. The focus was seminars and meetings with politicians, government officials and others as we learned about American government in our nation’s capitol. Professor Louis Loeb was the excellent leader of our group. Each of us also did independent research for a paper. My topic was the participation of political interest groups in the U.S. Supreme Court’s consideration of contempt of Congress cases, mostly coming from the House Un-American Activities Committee, which I thought itself was un-American. I spent a lot of time in the Supreme Court Library reading briefs of the parties and of amici curiae (friends of the court), usually the American Civil Liberties Union and the American Association of University Professors, and then comparing their arguments with the Court’s decisions. This was also the first time I had lived in a major city, and I thoroughly enjoyed its many cultural attraction. I am grateful.

After Grinnell, I had the tremendous privilege and honor of being a student for two years at the University of Oxford. There I studied or, as they say, “read” Philosophy, Politics and Economics. During the three eight-week terms of the academic year, each week I read suggested readings on two topics or issues and prepared essays for two tutorials, usually by myself, but sometimes with one other student. The tutors, especially John Sargent and Roger Opie in economics and Michael Hinton in philosophy, were warm and encouraging while pressing me onward. During the terms you could also attend university-wide lectures in the subjects while over the vacations or “vacs” you were expected to continue your readings in the three fields. At the end of my two years, I had university-wide examinations or “Schools” as they were given in a building called “The Examination Schools.” There were six required examinations (two each in the three disciplines) plus two optional subjects (mine were public finance and currency and credit). Each examination was three hours long, and you had to answer four questions from a printed list of about 12 questions. Your answers were then read and graded by a university-wide committee, and your overall grade or results were posted on the Oxford bulletin boards and published in the London Times. I am grateful.

I then returned to the U.S. for three years at the University of Chicago Law School. Whereas there was great student independence at Oxford, Chicago like most law schools had large classes with daily assignments, usually with professors grilling the students with questions about the cases or statutes we were studying. At the end of the semester there was the familiar practice of the course’s professor giving the final examinations. There were great professors at Chicago: Harry Kalven, Walter Blum, Francis Allen, David Currie, Philip Kurland, Phil Neal, Bernard Meltzer, Soia Mentschikoff and Kenneth Dam to name a few. I am grateful.

In 1966 I commenced practicing law with the Wall Street firm of Cravath, Swaine & Moore, probably the preeminent law firm in New York City. In my four years there as a junior associate, I worked on many interesting cases, usually with the “grunt” work. The senior lawyers for whom I worked helped me to “learn the ropes” of practicing law. Jack Hupper and Tom Barr were the most significant in that regard. I am grateful.

In 1970 my family and I moved to Minneapolis where I commenced what turned out to be a 31-year career with the law firm of Faegre & Benson (now Faegre Baker Daniels). Here too I worked with excellent lawyers who helped me develop my legal skills. I think especially of John French, Norman Carpenter, Larry Brown and Jim Loken; Jim is now a Judge of the U. S. Court of Appeals for the Eighth Circuit. I am grateful.

After my retirement from Faegre in 2001, Professor David Weissbrodt at the University of Minnesota Law School asked me to help teach the international human rights course. I accepted the offer and did so for nine years (2002-10). I learned much more about this field of law and met many interesting students and faculty. I am grateful.

For all of these blessings, I give thanks to God and to those named and unnamed individuals who helped me along the way.

Tribute to Jim de Jong

Jim de Jong

Jim de Jong, my friend, died on October 31, 2011, just one day short of his 70th birthday.

He was a Professor of German at Normandale Community College in Bloomington, Minnesota from 1969 through 1996, when he was forced to take early disability retirement because of multiple sclerosis. He held degrees from Western Illinois University (B.A., 1964), the University of Chicago (M.A., 1966) and the University of Minnesota (Ph.D., 1975). He was survived by his wife Sheila, daughter Anne-Marie, son Peter (Jill) and four grandsons.

I first met Jim and Sheila over 25 years ago at Minneapolis’ Westminster Presbyterian Church where we all were members.

Jim and I quickly discovered we shared some things in common besides our love for Westminster. We both were born in the same hospital in Keokuk, Iowa–only two years apart.  We both held degrees from the University of Chicago. We both were interested in politics and liked to travel. We both then were parents of teenagers with all that that entails. And I at least knew a few words and phrase auf Deutsch.

Jim as a Professor of German had a special love and passion for one of the masterpieces of Germany’s greatest writer, Johann Wolfgang von Goethe. His Hermann und Dorothea is a love story of Dorothea, a poor refugee, and Hermann, the young son of a wealthy German businessman. His father is opposed to his son’s marrying Dorothea because she is below their status. Hermann’s mother, however, assists the son in overcoming his father’s opposition to the marriage. For Jim, this was a story that is “eternally valid, in contemporary dress” and could reach students no matter what time or place.

Jim’s collection of 162 editions of this epic poem now resides at the Elmer L. Andersen Library on the West Bank of the University of Minnesota.

As an undergraduate, Jim spent a year abroad at the University of Vienna. As reported in The Haunted Land: Facing Europe’s Ghosts After Communism Jim was befriended in Vienna by a lecturer from Czechoslovakia who was forced to try to recruit Jim as a spy for the Communist regime. After I learned this, I liked to tease Jim that I did not know if he had been–and perhaps still was– a spy for the Communists or for the CIA. Jim never answered my implicit question, and only redently did I learn from Sheila that Jim was interested in a CIA career, but was disqualified because of her British citizenship.

Jim was a good friend, always interested in what my wife and I, our sons and grandchildren were doing. Our Ecuadorian granddaughter still remembers at a very young age being in Jim and Sheila’s home one Christmas when in accordance with German custom, they decorated their Tannenbaum with actual burning candles.

Jim had the gift of being able to laugh at himself. He liked to tell us about his and Sheila’s vacation in Scotland to visit some of her relatives. Jim became ill and needed medical care. No medical doctor was available. “No problem,” Jim added–with a twinkle in his eye–“I was treated by a veterinarian.”

Later Jim discovered that he had suffered a heart attack just two days before they left home for that vacation. He converted this bad news into proof of his intestinal fortitude.

During his last years, Jim’s multiple sclerosis forced him to be confined to bed at home with occasional stays in hospitals and nursing homes.

I know how much Jim missed not being able to attend Westminster’s worship services and our Virtues and Values adult education class on Sunday mornings and to visit his grandsons in Boston and then Chicago.

Yet he did not complain or grumble about his plight. Jim accepted the limitations imposed by his disease with dignity and grace. He liked to tell us about the friendships he had made with his health care aides from Africa. There always was another language Jim wanted to learn.

Jim was still able to laugh and tell jokes. Some were even “off color.”  He was a kind, gentle soul that we all will miss.

Danke schoen, mein Freund.

 Auf wiedersehen.      

 

Supporting International Criminal Justice and the International Criminal Court

Another outgrowth of my eight years of teaching the international human rights law course at the University of Minnesota Law School was an expanding knowledge of, and interest in, international criminal justice, in general, and the International Criminal Court (ICC), in particular.[1]

The general topic of international criminal justice covers the efforts of national and international courts to impose criminal penalties on those who are convicted of committing the worst crimes: genocide, crimes against humanity and war crimes.[2] My interest in this topic is shown by the 14 posts on this topic to date.[3] Similarly my interest in the ICC is demonstrated by the 18 posts on this topic to date.[4]

I have put this interest into action in several ways.

I have served as the Provisional Organizer of the Minnesota Alliance for the ICC, which is a member of the American Non-Governmental Organizations Coalition for the ICC (AMICC). This Coalition is committed to achieving through education, information, promotion and an aroused public opinion full U.S. support for the ICC and the earliest possible U.S. ratification of the Court’s Rome Statute.[5] Some of my papers about the ICC and the Rome Statute are posted on the AMICC website.[6]

 

Professor Barbara Frey and I assisted the Human Rights Committee of the Minnesota State Bar Association (MSBA) in developing and presenting a resolution on the ICC that was adopted by the Association’s governing body in September 2010. That resolution stated that the MSBA “urges the [U.S.] Government to take steps towards ratification of the Rome Statute by expanding and broadening [U.S.] interaction with the [ICC], including cooperation with the Court’s investigations and proceedings. The MSBA also calls on the [U.S.] Government to participate in all future sessions of the [ICC’s] governing body, the Assembly of States Parties.”[7]

 

Luis Moreno-Ocampo, ICC Prosecutor
Duane W. Krohnke

In September 2010 I also presented a paper about the U.S.’ relationship with the ICC at a symposium at the University of Minnesota Law School.[8] The true highlight of the symposium was the appearance of the ICC’s Prosecutor, Luis Moreno-Ocampo. He said that when he was chosen as the Prosecutor in 2003, he told its judges that the best situation for the Court would be to have no cases. That would mean that there were no serious crimes in the world or that national courts by themselves were addressing these crimes. At the symposium he reviewed the history of the Court and its current investigations and prosecutions.[9]

In March 2011 I participated in a debate at a meeting at the University of Minnesota Law School that was hosted by the Federalist Society, Law School Democrats and InternationalLaw Society. The issue was whether the U.S. should become a member of the ICC. [10] The key points of that debate were the following:

  • Professor Eugene Kontorovich of Northwestern University School of Law asserted that U.S. membership in the ICC would be unconstitutional.  U.S. membership would expose U.S. citizens to trials without the structures of an Article III court. In such trials defendants would not have certain procedural rights guaranteed by the Constitution, such as the right to a grand jury. He based his constitutional argument on the U.S. refusal in the early 19th century to join international slave-trading courts or commissions organized by Great Britain.[11]
  • Professor Kontorovich also argued that the ICC was a failure: the sluggishness of the trial process, the failure to convict any defendant, and the absence of empirical research demonstrating meaningful deterrent effects. The ICC, he said, could actually extend conflict by inhibiting peace deals when militants or regimes see international criminal prosecution as unavoidable in spite of ceasing or surrendering. He was also critical of the recent aggression amendment to the Rome Statute.
  • I responded that the U.S. Constitution does not bar U.S. membership in the ICC.  I referred to the U.S. Supreme Court’s decision in Missouri v. Holland that endorsed a broad interpretation of the President’s constitutional treaty power subject to the U.S. Senate’s advice and consent. I said I had not had an opportunity to review Professor Kontorovich’s early 19th century sources for his constitutional argument, but in doing so anyone should have at least two overriding questions in mind: (a) was U.S. resistance to the slave-trading courts due to Southerners’ desire to preserve slavery and (b) was U.S. resistance to such courts due to a desire to avoid entanglement with Great Britain so soon after our Revolutionary War and the War of 1812.[12]
  • I then argued the U.S. should ratify the Rome Statute for the following additional reasons: (1) the Court will prosecute and punish those guilty of the most serious crime; (2) the Court provides deterrence from such crimes; (3) the Court promulgates the truth about these crimes; (4) the Court assists victims; and (5) the Court is active and appears to be permanent, making U.S. involvement pragmatic.

International criminal justice needs the support of all citizens of the world. Going forward, the ICC is the most important institution for holding violators of international rights accountable for their actions.


[1] See Post: Teaching the International Human Rights Law Course (July 1, 2011).

[2] See Post: International Criminal Justice: Introduction (April 26, 2011).

[3] These posts can be accessed by double-clicking on “International Criminal Justice” in the Tag Cloud (dwkcommentariestags) to the right of this post.

[4]  These posts can be accessed by double-clicking on “International Criminal Court” in the Tag Cloud (dwkcommentariestags) to the right of this post.

[5]  AMICC, Mission Statement, http://www.amicc.org/mission.html.

6] Krohnke, US FEDERAL COURTS RELY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT IN CIVIL CASES (Nov. 9, 2009); Krohnke, U.S. Court of Appeals Relies Upon Rome Statute in Case Raising Issue of Corporate Liability under the Alien Tort Statute (Nov. 22, 2010), http://amicc.blogspot.com/2010/11/us-court-of-appeals-relies-upon-rome.html; Krohnke, U.N. Human Rights Council Recommends U.S. Join the International Criminal Court (Nov. 12, 2010), http://amicc.blogspot.com/2010/11/un-human-rights-council-session.html; Krohnke, Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court (Oct. 4, 2010), http://amicc.blogspot.com/2010/10/symposium-on-international-criminal.html.

[7] MSBA, Resolution regarding the ICC (Sept. 17, 2010), http://www.mnbar.org/committees/humanrights.

[8] Many of the points of the symposium paper have been set forth in other postings to this blog. Post: The International Criminal Court and the Clinton Administration (May 11, 2011); Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: The Crime of Aggression (May 15, 2011).

[9]  Krohnke, Symposium on International Criminal Justice at the University of Minnesota Highlights the Importance of the International Criminal Court (Oct. 4, 2010), http://amicc.blogspot.com/2010/10/symposium-on-international-criminal.html; Univ. Minn. Journal of Law & Inequality, 2010 Symposium: “International Wrongs, International Rights: The Use of Criminal Law to Protect Human Rights” (Sept. 28, 2010), http://www.law.umn.edu/lawineq/symposiummain/september-2010-agenda.

[10]  Rau & Shepherd, AMICC  Representative Participates in University of Minnesota Law School Debate on the US Involvement in the ICC  (March 28, 2011), http://amicc.blogspot.com/2011/03/amicc-representative-in-minnesota.html.

[11] Kontorovich, The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals, 158 U. Penn. L. Rev. 39 (2009).

[12]  After the debate, I discovered that a Stanford University Law School professor had written a rebuttal to Professor Kontorovich’s interpretation of the U.S. refusal to join the British-led international courts or commissions with respect to slave trading. In essence, she argued that in the early 19th century slave trading was not against international law. Instead, only Great Britain and the U.S. had recently banned such activities. Thus, the proposed international courts or commissions potentially would be trying U.S. citizens under U.S. law. That was the source, and a legitimate one, for U.S. refusal to join such tribunals at that time. (Martinez, International Courts and the U.S. Constitution: Re-Examining the History (2011), http://www.pennumbra.com/issues/article.php?aid=306.

Teaching the International Human Rights Course

UM Law School Building
Prof. Fionnuala D. Ní Aoláin

After I had audited the International Human Rights Law course at the University of Minnesota Law School in the Fall of 2001, Professor David Weissbrodt asked if I wanted to help him teachthe course. Given the vast disparity between his and my knowledge of the field, I thought he was joking. “David,” I said, “you don’t need any help.” But he persisted, and I relented and accepted his offer. I then served as an Adjunct Professor at the Law School for nine years, 2002-2010.

The course continued to have the same outline and structure that I had experienced in my auditing the course in the Fall of 2001,[1] and we continued to use the same book.[2] Professors Weissbrodt and Frey still taught most of the class sessions and later were joined by another expert in the field, Fionnuala D. Ní Aoláin.[3]

Professor Weissbrodt and I decided that I would teach two class sessions. One was on refugee and asylum law that built on my experience as a pro bono asylum lawyer. The other was on civil litigation over foreign human rights abuses in U.S. federal courts that took advantage of my considerable experience litigating civil cases in these courts.

Each year to prepare for my two class sessions, I conducted legal research to learn about the many new developments in order to write supplements for the chapters on these subjects. I also assisted in the rewriting of these chapters for the fourth edition of the book that came out in 2009.[4] I thereby continued to use my legal research and writing skills.

This involvement also guided my online reading of various U.S. and foreign newspapers and periodicals and to the creation of a system for email distribution of interesting articles on human rights to friends and colleagues. Many of these articles later became incorporated into the annual supplements for the two chapters that I prepared.

I decided that I would use moot courts for my two class sessions. For refugee and asylum law, four students volunteered to be lawyers for an asylum applicant and the U.S. Government for closing arguments before me, acting as an Immigration Judge in the Minnesota office of the Immigration and Naturalization Service (INS and n/k/a Citizenship and Immigration Services (CIS). For the other session, four additional students volunteered to be the lawyers for a corporate defendant and a foreign plaintiff in a civil lawsuit in the U.S. District Court for the District of Minnesota. The moot court was before me acting as the district judge on the defendant’s motion to dismiss the plaintiff’s complaint alleging the corporation had aided and abetted human rights violations in a foreign country.

In addition to being one way to learn about the substantive law, the moot courts, in my opinion, had other advantages. I thought that the moot court approach would show the students how they could become involved in international human rights while engaged in a regular legal practice in the Twin Cities or anywhere else in the U.S. Given the strength of the international human rights program at the University of Minnesota Law School, many of its graduates have gone on to be lawyers for various U.N. agencies and international human rights NGOs, but most graduates become ordinary practicing lawyers. I also wanted to emphasize the importance of a lawyer’s work at the trial court level, rather than the typical law school moot court experience of arguing before a mock appellate court like the Minnesota or U.S. Supreme Court. Most litigators have much more experience at the trial court level and rarely, if ever, argue a case before the highest court of the state or the U.S. Finally it gave the participating students the opportunity to practice and develop their oral advocacy skills.

For each of the moot court sessions, I held preparatory meetings with the student-lawyers. I gave them guidance on what to expect and answered their questions about the substantive and procedural issues. A strong enjoyable mentorship relationship developed from this total experience.

As part of the moot court exercises, I emphasized to all the students the importance of a lawyer’s knowing the background and views of the judges before whom they appear.

The hypothetical district judge in the lawsuit over foreign human rights violations, for example, had excellent credentials. Appointed for life by the President with the advice and consent of the Senate, the judge was intelligent, honest, hard-working, fair and with a lot of experience on many kinds of civil and criminal cases. The judge, however, had never studied international human rights and along with the fellow judges in his court and his supervising court (the Eighth Circuit Court of Appeals) has never had a case like this under the Alien Tort Statute. As a result, the lawyers for this moot court needed to explain the case thoroughly and clearly. (Fortunately the judge had a law clerk who had studied the subject at the University of Minnesota Law School.)

The hypothetical immigration judge, on the other hand, has tried many asylum cases and has a thorough knowledge of the relevant law. This judge also was intelligent, honest, hard-working and fair. As a result, in this moot court there is no need to explain asylum law to the immigration judge. Instead, the attorney needs to focus on the facts of the instant case. Such judges, it should be noted, do not have lifetime appointments. Instead, they are appointed by the U.S. Attorney General as attorneys in the Department of Justice with no fixed term of office and are subject to discretionary removal and transfer by the Attorney General.

Soon after the classes were over, I sent email critiques of the students’ performance. Invariably the students rose to the challenge and made excellent arguments. I also usually issued a hypothetical decision on the dismissal motion and on the asylum request.

I also attended many other class sessions and the presentations by outside speakers in the course as well as various conferences at the Law School. As a result, I continued to learn more about the field.

Outside the classroom I was available to talk with students about the course and more generally about practicing law and other issues. I welcomed this opportunity to learn more about those who were getting ready to pursue various legal careers. I especially enjoyed getting to know the many foreign students in the course, some of whom were Hubert Humphrey Fellows. (My wife and I also volunteered to be a host family for Fellows from Ecuador, El Salvador and Brazil.)

Museum of Republic, Rio de Janeiro
Profs. Duane Krohnke & Elizabeth Sussekind @ Museum of Republic

 

My friendship with a Humphrey Fellow from Brazil resulted in her inviting me to participate in a symposium at the Museum of the Republic in Rio de Janeiro in the Fall of 2009. The symposium was the concluding event to commemorate the 20th anniversary of the Brazilian constitution of 1988 that ended its military dictatorship. This symposium focused on Memory and Justice, and my paper on the Truth Commission for El Salvador provided a Latin American perspective on Brazil’s not having had a similar truth commission.[5]

I thoroughly enjoyed these many aspects of having been an adjunct professor. I never would have had these experiences if I had continued practicing law after 2001. I, therefore, view them as confirmation of the wisdom of my decision to retire from lawyering that year.[6]


[1] See Post: Auditing the International Human Rights Law Course (June 30, 2011).

[2] David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process (3d ed. 2001).

[3] University of Minnesota Law School, Fionnuala D. Ní Aoláin,  http://www.law.umn.edu/facultyprofiles/niaolainf.html.

[4]  David Weissbrodt, Fionnuala D. Ní Aoláin, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process (4th ed. 2009).

[5] Museu da Republica, Memoria e Justica (2009).

[6] Post: Retiring from Lawyering (April 22, 2011).

Auditing the International Human Rights Course

In the Fall of 2001, after retiring from Faegre & Benson, I audited the International Human Rights Law course at the University of Minnesota Law School.[1] Although I had gained some knowledge of refugee and asylum law from my pro bono asylum work,[2] I knew very little about the rest of the field. Through this experience at the Law School I started to learn about other aspects of this area of law and developed a continuing interest in trying to keep up with new developments in the field.

Prof. David Weissbrodt
Prof. Barbara Frey

The course was lead by Professor David Weissbrodt, a world authority on the subject and now the first and only Regents Professor at the UM Law School.[3] He was the main author of the book that we used.[4] Some classes were taught by Professor Barbara Frey, whom I had met when she was the Executive Director of Minnesota Advocates for Human Rights (n/k/a Advocates for Human Rights) and had taken its training course in asylum law.[5]

The topics for the course were the following: (a) drafting, ratification and implementation of international human rights treaties; (b) state reporting under such treaties; (c) U.N. Charter-based mechanisms to address human rights violations; (d) humanitarian intervention; (e) international human rights fact-finding; (f) criminal liability for human rights violations; (g) regional human rights systems (Inter-American and European); (h) refugee and asylum law; (i) U.S. federal court litigation over foreign human rights violations; (j) use of international human rights treaties and law in litigation over U.S. issues; and (k) causes of human rights violations.

The course used different teaching styles. Some classes were the traditional law school Socratic questioning by the professor. Others were lectures while some involved role playing by the students. One class was a mock hearing before the U.S. Senate Foreign Relations Committee on whether the Senate should give its advice and consent to U.S. ratification of an international human rights treaty. The course also had an unusual structure. The class met once a week for two hours on Friday morning immediately followed by another hour when we were joined by an undergraduate human rights class for presentations by outside speakers on various related topics.


[1]  University of Minnesota Law School, International Human Rights, http://www.law.umn.edu/current/coursedetails.html?course=23.

[2] Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).

[3] University of Minnesota Law School, David S. Weissbrodt, http://www.law.umn.edu/facultyprofiles/weissbrodtd.html.

[4] David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process (3d ed. 2001).

[5] University of Minnesota, Barbara A. Frey, http://hrp.cla.umn.edu/about/people.htm; Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011).