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Disgusting U.S. Political Scene

The current political wrangling in the U.S. Congress over the U.S. debt ceiling is disgusting.

In order for the U.S. to avoid defaulting on its Treasury securities, the U.S. Congress needs to pass a bill to increase the debt ceiling before August 2, 2011. If the Congress does not do so, then there would be catastrophic consequences for the U.S. and hence the global economy. Most economists and informed commentators, I think, are agreed on these propositions. Moreover, in my opinion, it is too risky to experiment and test the contrary views expressed by the minority.

Some stupid suggestions have been made to evade the above analysis and not raise the debt ceiling. Former Minnesota Governor and presidential candidate Tim Pawlenty said the U.S. could continue to pay interest on its securities (a lot of which are held by the Chinese government) and not pay U.S. military personnel and ordinary Americans.[1] Another Minnesota presidential candidate, Michelle Bachmann, has taken a similar position.[2] Even if such absurd actions could avoid adverse reaction in the world market for U.S. securities, which I doubt, who can seriously believe that there would not be a horrendous chain of reactions from our military personnel and citizens?

How can Pawlenty and Bachmann be taken as serious presidential candidates in light of just these stupid suggestions? Yet I read that Bachmann was number one in recent opinion polls of Republicans.

U.S. Senator Mitch McConnell, the Republican leader in the Senate, has admitted that not raising the debt ceiling runs a very high risk of causing disastrous consequences to the U.S. Therefore, he has proposed what is sometimes referred to as “Plan B,” a bill that would allow President Obama unilaterally to raise the debt ceiling for the balance of his term of office. This plan, McConnell crassly admitted, was motivated by his desire not to help President Obama get reelected.[3]

The Republicans’ call for reductions in government spending flies in the face of the elemental formula for Gross National Product: B (business spending) + C (consumer spending) + G (government spending) + E (net exports or exports- imports) = GNP (Gross National Product). Reducing government spending their way will reduce the incomes of many people dependent upon the government and, therefore, probably cause a reduction in consumer spending. Moreover, it is delusional, in my judgment, to believe that reducing government spending will cause an explosive increase in business confidence and spending to counterbalance the reduction in the former. Many corporations already have huge stashes of cash that they are not spending because consumer spending is weak. Consumer spending is weak because of high unemployment, general economic anxiety and reduced consumer wealth associated with declines in home values. In short, reducing government spending the way the Republicans want to do it will worsen our stalling recovery.[4]

Moreover, the Republicans’ call focuses on the smaller slice of the federal budget devoted to improving our deteriorating infrastructure and maintaining the frayed social safety net for our citizens. We the People should be able to see these adverse developments with our own eyes. And those who know something about what is happening in the rest of the world know that the U.S. is falling behind many other countries on many facets of a healthful society.[5]

No one, to my knowledge, is discussing the most important issue, in my opinion, that is raised by the huge and mounting U.S. national debt that needs to be addressed. What is a new U.S. national security strategy that protects the vital interests of our country while vastly reducing the size and global span of the U.S. military? Is the U.S. now in the position of earlier empires whose foreign expenditures to maintain their empires dragged down those regimes?

We the People and all of our elected representatives need to recover the spirit of moderation.

This spirit, said Learned Hand, “is the temper which does not press a partisan advantage to the bitter end, which can understand and will respect the other side, which feels a unity between all citizens–real and not the factitious product of propaganda–which recognizes their common fate and their common aspirations–in a word, which has faith in the sacredness of the individual. . . . [Such a spirit and faith] are the last flowers of civilization, delicate and easily overrun by the weeds of our sinful human nature. . . . They are the fruit of the wisdom that comes of trial and a pure heart; no one can possess them who has not stood in awe before the spectacle of this mysterious Universe; no one can possess them whom that spectacle has not purged through pity and through fear–pity for the pride and folly which inexorably enmesh men in toils of their own contriving; fear, because that same pride and that same folly lie deep in the recesses of his own soul.”[6]

[1] E.g., Kane, Pawlenty: If debt ceiling not raised, pay “outsie creditors” first, (July 15, 2011), http://www.rawstory.com.

[2] E.g., Bachmann, No Debt Ceiling Increase, http://www.michelebachmann.com; Drum, Bachmann and the Debt Ceiling, (July 20, 2011), www. motherjones.com.

[3] E.g., Stein, McConnell Debt Ceiling Strategy: “I refuse To Help Obama Reelection,” Huffington Post (July 13, 2011).

[4] E.g., Krugman, The Lesser Depression, N.Y. Times (July 21, 2011).

[5] E.g., Thomas Friedman, Still Digging (Dec. 7, 2010).

[6] Learned Hand, The Spirit of Liberty at 164-65 (3d ed.; Phoenix ed.; Chicago: Univ. Chicago Press 1977).

Passionate, Committed Political Leadership

The recent documentary about Hubert Humphrey[1] is inspirational and disheartening at the same time.

One is inspired to be reminded of the extraordinary life and talents of Senator and Vice President Humphrey. He entered the national political scene at the Democratic National Convention in 1948 as the Mayor of Minneapolis in his passionate and inspirational speech calling for his Party to enter “the bright sunshine of human rights.” After election to the U.S. Senate that same year, he continued to press for liberal, progressive legislation in his unique, spirited, passionate and committed way.

Humphrey talked about his drawing sustenance, as do I,[2] from the Preamble to the U.S. Constitution:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” (Emphasis added.)

Humphrey stressed that the emphasized verbs of the Preamble were all calls for an active government, an observation that had escaped me. “We the People” through our federal Government are called upon to form, establish, insure, provide, promote and secure the previously stated goals or objectives. This calling is never finished as the words “a more perfect Union” emphasize. (I often had thought that this was an inapt phrase as something is either perfect or it is not; there cannot be degrees of perfection. Now, however, I see a larger purpose behind the phrase.)

The documentary also tells the story of Humphrey’s shepherding the Civil Rights Act of 1964 through the U.S. Senate and leading the battle and ultimate defeat of the southern Senators’ filibustering of the bill. (At the time, cloture of debate required 67 votes, not the 60 needed today.) Part of this skillful legislative leadership was compromising to gain support for the bill from Republican Senators, most notably Everett Dirksen of Illinois, and by yielding to Dirksen important roles in advocating for the bill.

Humphrey demonstrated in this instance and in the rest of his Senate career that persistence and compromise were both needed to advance the causes in which you believed. Your opponent today might be your ally tomorrow. Today you might not obtain all that you want in a particular piece of legislation, but there are always tomorrows to work on the unfinished business.

I also found the documentary disheartening. Today we the People desperately need another passionate, committed advocate for a strong, active federal government. We also need legislators in the Congress who welcome compromise as an important and necessary ingredient for advancing the public’s business. In the current political turmoil about raising the national debt limit, I do not see such leaders.

[1] Hubert H. Humphrey: The Art of the Possible (DVD) (2010), http://www.shoppbs.org.

[2] Post: My Political Philosophy (April 4, 2011).

Blogging in Havana

The blog from Havana– “Generation Y”[1]— is Yoani Sanchez’s courageous effort to let the world know about the daily life and frustrations of ordinary Cubans.

She provides sketches of daily life in Cuba–“a dreary, enervating routine of food shortages, transportation troubles and narrowed opportunity.”[2] Other major themes are the need for political and economic changes in Cuba and the Cuban regime’s efforts to stifle her criticisms of the government.

A collection of her blog posts from 2007 through 2010 has been published as Havana Real.[3] Two of them prompt comments based upon my three church mission trips to Cuba since 2001.

Most Cubans struggle to survive. Those who have jobs generally make around $20 to $30 per month. They still have rationed basic food essentials at subsidized low prices, but as the blog emphasizes, many of these rationed essentials are very small quantities and are not really always available, and the government recently has talked about ending or reducing these pitifully limited rations. One day, Yoani’s mother called her to report that there was toilet paper available at a distant market, but that Yoani needed to hurry to get there because the “tp” would soon be gone.[4] On my last trip to visit our partner Presbyterian church in the city of Matanzas, its pastor told us that he was not able to buy any “tp” for our visit and stay in the church’s dormitory. He, therefore, asked the members of the congregation to give the church any extra “tp.”

Not surprisingly Yoani has negative reactions to Cuban political speeches that talk about the Cuban Revolution’s being “eternal.” She says she avoids using words like “eternal,” “always” and “never.” The word “eternal”, she says, means something that “lasts into the future ad infinitum,” but also something that “has no beginning.” There is little, if anything, that meets those requirements. She concludes with these words of wisdom, “It’s a relief that all the things in this world’s days are numbered.”[5]

In addition to her own blogging, she helps organize and present workshops in Cuba on creating blogs on “wordpress.com.”

Yoani has won many international awards for her blogging: one of the 100 Most Influential People in the World and Best Blog (Time Magazine), Ortega y Gasset Prize for digital journalism (Spain), one of the 100 Most Notable Hispanic Americans (El Pais Spanish newspaper), World Press Freedom Hero award (International Press Institute) and Young Global Leader (World Economic Forum).[6]

“Generation Y” honors those people like Yoani whose have names containing the Greek Y letter, so unusual in Spanish, but relatively common in Cuba in the 1970’s and 1980’s when Cuba was under Russian or Soviet influence.

[1] http://www.desdecuba.com/generationy/. The blog also has links to other Cuban blogs in English and in Spanish as well as her articles and interviews.

[2] Rohter, In Cuba, the Voice of a Blog Generation, N.Y. Times (July 5, 2011).

[3] Sanchez, Havana Real (Brooklyn: Melville House 2011).

[4] Id. at 361-63.

[5] Id. at 31-33.

[6] Id. at 2.

The Washington Semester

In the Fall of 1959 (the first semester of my junior year), I attended American University in Washington, D.C. Thirty-one other students from all across the U.S. and I were in a unit of AU’s Washington Semester Seminar led by Professor Louis Loeb.

The objective of the Semester was to give us insight into our national government in action. We did this in various ways.

The Seminar was the heart of the Semester. We had meetings with officials who worked in or with the national government, assigned readings and interpretation sessions with Professor Loeb while we also maintained a journal of our activities and took examinations. All of this was arranged around the following subjects: (a) Congress and its staff agencies; (b) political parties, pressure groups and opinion; (c) the President and the executive agencies; (d) international relations; and (e) the judiciary.

The second major part of the Semester was conducting an independent research project and writing a report on the results. Mine was “A Study and Analyses of Political Interest Group Participation in House Un-American Activities Committee’s Contempt of Congress Cases, 1945-1956.” I chose this topic because I detested that Committee, on the one hand, and endorsed the philosophy of one of its major opponents in such cases, the American Civil Liberties Union, on the other hand. In addition to doing a lot of general reading regarding the Committee and the theory and practice of political interest groups, I spent a lot of time in the Supreme Court Library reading the records in such contempt cases that reached the Court. I compared the briefs of the parties with those of the amici curiae (friends of the court) and the Court’s decisions.

In three of the four contempt of Congress cases that reached the Supreme Court in this period, the decisions were favorable to the views expressed by these interest groups even though the actual points in the amici briefs did not make it into the Court’s opinions. It was impossible to determine what effects, if any, their briefs had on the thinking of the justices or the results in the cases. The decisions in these cases did have some effect on the Committee’s giving notice to witnesses of the relevance of the Committee’s questions and its rejection of the witnesses’ objections. It was possible, at least in theory, to see how such participation might affect the interest groups themselves, but specific evidence of such effects could not be found.

In order to obtain additional hours of credit that semester, we had to take courses at night at AU’s downtown campus, just west of the White House. I took three such courses: American history, early political theory and the economics of public finance.

This semester was the first time I had ever lived in a major city. I thoroughly enjoyed going to museums, concerts and plays and seeing the beautiful and historic buildings of the city. I became acquainted with the general counsel of the Atomic Energy Commission, who was a musical composer in his spare time. I vividly recall going to a vocal recital in the living room of the old mansion that became the Phillips Gallery for performance of my friend’s songs with lyrics from the poetry of e. e. cummings.

At the end of the semester AU awarded me a scholarship for summer school at Harvard University. I, however, declined the offer in order to be the assistant to the Chairman of the Democratic Party of Iowa under Grinnell College’s Program in Practical Politics.[1]

[1] See Post: Encounters with Candidates JFK and LBJ (April 16, 2011).

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]

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

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 the Republic, Rio de Janeiro, Brazil, 10.5.09 — Museum of Republic, Rio de Janeiro

DSCN3432 — 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.

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).

Practitioner in Residence

UILaw — University of Iowa College of Law

For three days in February 1986 I was the practitioner in residence at the University of Iowa College of Law. I helped teach a class, made a presentation to a faculty seminar, gave a speech to an assembly of students and faculty and talked to a student group and a legal clinic seminar.[1]

Professor Patrick Bauer, a friend and former colleague at the Faegre & Benson law firm in Minneapolis, taught a first-year civil procedure class that I joined. The topic was Rule 11 of the Federal Rules of Civil Procedure that requires an attorney who submits a pleading, written motion or other paper to a federal district court to make an implicit representation that it was not presented for an “improper purpose,” that is was “warranted by existing law or by a nonfrivolous argument” for changing the law and that its factual contentions had or were likely to have “evidentiary support.” [2]

The problem for the class that day was posed by a recent case in which the court had denied a defense motion to dismiss a complaint and had directed defense counsel to submit a brief as to why they should not be subject to Rule 11 sanctions for their dismissal motion. The court thereafter decided that such sanctions were appropriate and imposed a fine on the defense counsel (in an amount to be determined). The violation of Rule 11, according to the court, occurred because the dismissal motion was not warranted by existing law and because the lawyers had not made a reasonable inquiry to determine if the motion was warranted by existing law.[3]

In the civil procedure class, I played the role of a law firm partner soliciting input and advice from his associate lawyers (played by the students) on preparing a complaint for a new civil lawsuit. Professor Bauer at the blackboard wrote down Rule 11 issues that were created by the ideas put forward by the associates.

“Sue the Bastard! Ruminations on American Litigiousness” was the title of my presentation to a faculty seminar. I had prepared this paper while on my sabbatical leave at Grinnell College. I discussed what I saw as the causes and effects of such litigiousness and suggested changes in our legal system and national psyche.[4]

An assembly of faculty and students was the forum for my speech, “The Pilgrimage of a Hired Gun–The First Twenty Years.” Accepting the challenge of Judge Frank M. Coffin for lawyers and judges to make “interiorly revealing” comments about their professional lives,[5] I discussed my first 20 years of practicing law and my search for meaning and spiritual values in a litigator’s life.

The first five years were my apprenticeship period when I was learning how to be a litigator and how to function in two large law firms in two new cities while also becoming a father to two sons. The self-sufficient, inner-directed person I thought I was had found a home in the well-paid, high-powered, eminently secular law firm.

The next five years I saw as my yuppie period. I was becoming more proficient as a lawyer. I advanced to partner at Faegre & Benson. We bought an upper-middle-class home. Still no room for a spiritual, religious life.

The next four or five years or so, in retrospect, was a time of mid-life crisis. I was increasingly skeptical of the significance of what I was doing for a living while facing personal challenges.

I started to sort out these problems over the next five years and started to integrate the various aspects of my life. In 1981 I joined Minneapolis’ Westminster Presbyterian Church and started to re-discover a spiritual life.[6] In 1982 I took a sabbatical leave from my law firm to teach at Grinnell College.[7] In 1984, I organized a liberal arts seminar for lawyers at the College.[8] I started to do research about two lawyers whom I admired: Joseph Welch and Edward Burling.[9] Being a practitioner in residence also gave me the opportunity to reflect on these issues and to share these thoughts with others.

I concluded my “Pilgrimage” speech by saying, “I embrace the tools of the trade [and] the craftsman’s pride in a job well done and let go of the omni-competent, omnipotent attitude of the successful lawyer.”

Little did I know at the time of this speech that my then just-starting involvement in the Sanctuary Movement case[10] would be an integrative experience that would lead to my becoming a pro bono asylum attorney,[11] my making a life-changing pilgrimage to El Salvador[12] and my becoming an adjunct professor of international human rights law at the University of Minnesota Law School.[13]

While a practitioner in residence at the Iowa College of Law in February 1986, I also spoke to a meeting of the Christian Legal Society on “Legal Issues Arising Out of the Sanctuary Movement and Government Infiltration of the Churches.” This was an account of the federal criminal case against leaders of the Sanctuary Movement and the Government’s disclosure that it had sent under-cover agents into worship services and Bible-study meetings at Arizona churches involved in the Movement. I also discussed the just-filed civil case against the U.S. Government over “the spies in the churches” by the American Lutheran Church and the Presbyterian Church (U.S.A.).[14]

Another activity at the Iowa College of Law was attending a legal clinic seminar. I talked about the American Bar Association’s Model Rules of Professional Conduct for lawyers and legal malpractice.[15] I shared my opinion that legislatures and courts were in the process of altering the balance between a lawyer’s role as advocate and the role as officer of the court to give greater importance to the latter. One example was the previously mentioned court’s imposing sanctions on lawyers for arguments that were not deemed in accordance with established law. I attributed this shift to increasing legal fees and the costs of litigation, the public perception that litigation processes had been abused and the knowledge that some lawyers are dishonest. This rebalancing carried with it a risk of diminishing a lawyer’s responsibilities to a client and hence an increased risk of malpractice. I concluded with this quotation: “Clients are entitled to much. They are entitled to dedication, diligent preparation, undivided loyalty, superb research, the most zealous advocacy and even sleepless nights; but they are not entitled to the corruption of our souls . . . . We do not lie, we do not cheat, we do not suborn, and we do not fabricate. We do not lie to clients. We do not lie for clients.”[16]

[1] Duane Krohnke Is First Daum Practitioner in Residence, Iowa Advocate, Fall/Winter 1985-86, at 15. The widow of F. Arnold Daum, a 1934 graduate of the Iowa College of Law and a senior partner in a Wall Street law firm, established the F. Arnold Daum Visiting Practitioner’s Program in the Law College to support bringing leading practitioners to the law school to appear in classes and exchange ideas with faculty and students. I was the first such practitioner to participate in this program.

[2] Fed. R. Civ. Pro. 11.

[3] Golden Eagle Distributing Corp. v. Burroughs Corp., 103 F.R.D. 124 (N.D. Cal. 1984).

[4] Post: A Sabbatical Leave from Lawyering (May 26, 2011).

[5] Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[6] Post: Minneapolis’ Westminster Presbyterian Church (April 6, 2011).

[7] Post: A Sabbatical Leave from Lawyering (May 326, 2011).

[8] Post: A Liberal Arts Seminar for Lawyers (May 28, 2011).

[9] Post: Adventures of a History Detective (April 5, 2011).

[10] Post: The Sanctuary Movement Case (May 22, 2011).

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

[12] Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).

[13] Post: My First Ten Years of Retirement (April 23, 2011).

[14] Post: The Sanctuary Movement Case (May 22, 2011)(account of the churches’ completed case against the Government).

[15] Krohnke, A Litigator’s Comments on the ABA Model Rules of Professional Conduct and Attorney Malpractice (Feb. 1986).

[16] Miller, A Report on the Morals and Manners of Advocates, 29 Cath. Law. 103, 108 (1984).

Minnesota’s Federal Court

Fedctmpls — Federal Courthouse, Minneapolis

mpls-typical-courtroom — Courtroom, Federal Courthouse, Minneapolis

The United States District Court for the District of Minnesota is the federal court in the State. It and the 93 other U.S. district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters.[1]

The Minnesota federal court has four federal courthouses in St. Paul, Minneapolis, Duluth and Fergus Falls although the last one does not have any regularly assigned federal judges.[2]

The Minnesota court has seven judgeships authorized by federal statutes. There are 670 other such federal district court judgeships in the U.S. All of the people who hold these judgeships are appointed for life by the President of the U.S. after advice and consent of the U.S. Senate.[3] They exercise the full powers of the district courts.

Five of the seven U.S. District Judges for the Minnesota court have their chambers at the Minneapolis federal courthouse; they are Joan N. Ericksen, Michael J. Davis, John R. Tunheim, Patrick J. Schiltz and Ann D. Montgomery. In the St. Paul federal courthouse they are Donovan W. Frank and Susan Richard Nelson. They are joined by four Senior U.S. District Judges, who also continue to take cases: Donald D. Alsop, Paul A. Magnuson and Richard H. Kyle in St. Paul and David S. Doty in Minneapolis.[4]

The Court also has nine United States Magistrate Judges, who are appointed by the Judges of the U.S. District Court for a term of eight years and who are eligible for reappointment to successive terms. The Magistrate Judges at the U. S. District Court in St. Paul are Janie S. Mayerson, Jeanne J. Graham, Jeffrey J. Keyes and Tony N. Leung; at the Minneapolis federal courthouse they are Arthur J. Boylan (Senior Magistrate Judge), Franklin L. Noel and Steven F. Rau. Leo J. Brisbois serves in the Duluth federal courthouse; and Mary Kay Klein is part-time in Bemidji.[5] The magistrate judges have more limited roles then the judges and may try cases only with the consent of the parties.[6]

In 1986 the District Court appointed District Judge Diana E. Murphy and me as co-chairs of the Bicentennial of the Constitution Committee for the District of Minnesota. We produced a history of the Court and sponsored and organized a seminar on constitutional law, a lecture and discussion on “Religion and the Constitution” and videotaped interviews of the sitting judges.[7]

[1] United States Courts, District courts, http://www.uscourts.gov/FederalCourts/; 28 U.S.C. ch. 85 (jurisdiction). The more populous states have more than one federal district court. For example, the State of New York has four: Northern, Southern, Eastern and Western Districts. (28 U.S.C. § 112.)

[2] U.S. Dist. Ct., D. Minn., Courthouses, http://www.mnd.uscourts.gov/Courthouses.shtml.

[3] U.S. Dist. Ct., D. Minn., Judges, http://www.mnd.uscourts.gov/judges.shtml; United States Courts, Federal Judgeships, http://www.uscourts.gov/JudgesAndJudgeships/.

[4] Id.

[5] Id.

[6] 28 U.S.C. ch.43.

[7] Murphy & Krohnke, The Minnesota Federal Court Embarks on Bicentennial Projects, Hennepin Lawyer, May-June 1987 at 10; History of the U.S. Court for the District of Minnesota (1989), http://www.mnd.uscourts.gov/History. Since October 1994, Judge Murphy has been a U.S. Circuit Judge on the U.S. Court of Appeals for the Eighth Circuit, which handles appeals from the Minnesota federal court as well as the federal district courts in North Dakota, South Dakota, Nebraska, Missouri and Arkansas. (Eighth Circuit Court of Appeals Judges, http://www.ca8.uscourts.gov/newcoa/judge.htm; 28 U.S.C. § 41; 28 U.S.C. ch. 83.) Appeals from the Eighth Circuit go to the U.S. Supreme Court when the latter agrees to take the case. (28 U.S.C. § 1254.)

Celebrating the Rhodes Scholarships’ Centennial

In July 2003 the Rhodes Trust[1] hosted gala celebrations of the centennial of the Rhodes Scholarships. My wife and I were privileged to be there.

Westminster Hall

The main event was held in London’s Westminster Hall, which is part of the Palace of Westminster. Other parts of the Palace are the Chambers for the House of Commons and the House of Lords. When it was built in 1097, the Hall at 240 feet by 68 feet was the largest hall in Europe; in the reign of King Richard II it obtained a clear-span wood-beam roof. Here were held the trials of King Charles I, Sir William Wallace, Sir Thomas More, Guy Fawkes and the Earl of Strafford, all of whom were condemned to death. The Rhodes event in 2003 was the first (and, I think, still the only) time it had ever been used for a non-state occasion.[2]

As we were standing in a queue to go through security to enter the Hall, a BBC reporter quizzed me about the significance of the relatively few Rhodes Scholars who were in the George W. Bush Administration. I, however, declined to see any significance to that fact other than to note that Scholars usually were interested in trying to improve people’s lives through government programs.

The audience of over 1,000 Rhodes Scholars and their spouses were treated to interesting speeches from Lord Waldegrave, the Chairman of the Rhodes Trustees;[3] “Nicky” Oppenheimer, the Chairman of DeBeers, the diamond mining company started by Cecil Rhodes in South Africa in the 19th century;[4] Bill Clinton, the former U.S. President; Tony Blair, then the Prime Minister of the U.K.; and Nelson Mandela, the former President of South Africa.[5]

Lord Waldegrave commented on the recent creation of the Mandela Rhodes Foundation, a joint venture of the Rhodes Trustees and the Nelson Mandela Foundation to support aid and education in South Africa. An overarching theme of the centennial was the closing of the circle by joining together the controversial 19th century white entrepreneur (Rhodes) and the 20th century post-apartheid black South African leader (Mandela).[6]

Oppenheimer drew chuckles from the audience when he said that he was confident that the Founder (Cecil Rhodes), looking down from above, or perhaps looking up from below, would be proud of the accomplishments of his Scholars.

tony-blair-bill-clinton_n — Tony Blair & Bill Clinton

Clinton joked that it was a sign of progress that all of the politicians that day felt safe in the Hall where King Charles I and Sir Thomas More had been tried and condemned to death. He and the other Scholars, he said, had been “enriched, enlarged and changed” by their time at the University of Oxford, and many of them had made “great contributions across the globe in public service, the arts, the sciences, business, the military, religion and other fields.” Clinton also applauded the new Mandela Rhodes Foundation to “bring some of Rhodes’ wealth back to its origins to help build a new South Africa.”[7]

Blair, putting his glasses into his breast pocket, said that President Mandela had just told him that he never reads a speech so Blair reciprocated by saying he would not read the speech that the Foreign Office had written for him. Blair recalled that when he was a student at Oxford, an Australian or New Zealand Rhodes Scholar had encouraged Blair to go into politics. Blair said that Mandela “is a person who, probably more than any other political figure, certainly in my lifetime, establishes the triumph of hope over injustice.” Blair also challenged the international community to do more to tackle the scourge of HIV and AIDS in Africa and the developed world to lift tariffs to help African exports.

Mandela gave the concluding speech. He noted that Rhodes had made his fortune in South Africa and imagined that he would endorse the “decision to develop human capacity in modern-day South Africa, enabling that country to continue being a competitive presence in the world as it was in those fields within which he operated during his times.” Indeed, Mandela said, he was “certain, Cecil John Rhodes and I would have made common cause.”[8]

When all the speeches were finished, everyone on the speakers’ stage walked the over 200-feet length of the hall through the audience. Mandela, then nearly 85 years old, was frail, and to help him make the long walk, his right arm was held by Tony Blair; his left, by Bill Clinton. They brought tears to our eyes as they passed six feet from us on their journey through the Hall.

National Portrait Gallery

My wife and I then joined many others walking down Whitehall to the National Portrait Gallery on Trafalgar Square. In the Gallery’s Tudor Rooms Rhodes Scholars from the early 1960’s gathered for conversation, drinks and music from a string quartet.

Other groups of Scholars met in other parts of the Gallery and in the Banqueting Hall on Whitehall.

Dinner at Worcester College

We then went by train to Oxford, where each college held special black-tie dinners honoring their Rhodes Scholars.

Worcester College put out all the college silver and crystal for its Rhodes Scholar dinner. Everyone had an assigned place for the main courses and a different place for dessert. For the main course I was seated across the table from Julian Ogilvie Thompson, a South African Rhodes Scholar who was a director and former executive of DeBeers and the Anglo American gold and diamond mining company.[9]

After dinner I talked with David Kendall, who was at Worcester, 1966-68, and who in 1993 began legal representation of President and Mrs. Clinton in various matters, including the 1998-99 impeachment proceedings against Mr. Clinton.[10] David and I had met in the Spring of 1966, just after he had been elected as a Rhodes Scholar from Indiana’s Wabash College. Illinois Governor Otto Kerner had studied at Cambridge University and that Spring hosted a Cambridge-Oxford Boat Race Dinner at the Governor’s Mansion in Springfield. I joined a group that bused to Springfield from Chicago for the dinner, and David was a special guest on the bus and at the dinner.

Conclusion

These spectacular events reminded me of how fortunate I was to have been selected as a Rhodes Scholar and to have had the amazing experience of an Oxford education. Thank you, Cecil Rhodes.

[1] The Rhodes Trust, www.rhodeshouse.ox.ac.uk/page/trustees.

[2] Wikipedia, Palace of Westminster, http://en.wikipedia.org/wiki/Palace_of_Westminster.

[3] Wikipedia, William Waldegrave, Baron Waldegrave of North Hill, http://en.wikipedia.org/wiki/William_Waldegrave,_Baron_Waldegrave_of_North_Hill.

[4] Wikipedia, Nicky Oppenheimer, http://en.wikipedia.org/wiki/Nicky_Oppenheimer; Wikipedia, DeBeers, http://en.wikipedia.org/wiki/De_Beers.

[5] Russell, Mandela celebrates 100 years of Rhodes, (July 3, 2003), http://www.independent.co.uk; Johnson, Mandela, Clinton Celebrate with new Rhodes-Mandela Foundation (July 6, 2003), http://africanamerica.org.

[6] Earlier the Rhodes Trust had held centenary celebrations in South Africa.

[7] Bill Clinton, Speech: Rhodes Trust Centenary Celebration (July 2, 2003), http://www.clintonfoundation.org. I previously noted Clinton’s acknowledging his family’s embarrassment that he had not earned an Oxford degree in his two years at Oxford while congratulating his daughter Chelsea’s Oxford degree that summer. (See Post: Reading PPE at Oxford (June 6, 2011).

[8] Nelson Mandela, The Patron’s Founding Speech (July 2, 2003), http://db.nelsonmandela.org/speeches/pub_view.asp?pg=item&ItemID=NMS1073&txtstr=westminster.

[9] Wikipedia, Julian Ogilvie Thompson, http://en.wikipedia.org/wiki/Julian_Ogilvie_Thompson; Wikipedia, Anglo American PLC, http://en.wikipedia.org/wiki/Anglo_American_(mining); AngloGold Ashanti, http://www.anglogoldashanti.com/Home.

[10] David Kendall Biography, http://www.wc.com/dkendall