Showing posts with label International Law. Show all posts
Showing posts with label International Law. Show all posts

21 February 2024

Random Thoughts

International Law

* International law should recognize a duty to give up and acknowledge that you have been defeated in a claim to territory at some point.

* The twelve mile exclusive zone in the U.N. Convention on the Law of the Sea was probably based upon the range of naval guns on warships, allowing countries to exclude warships from the range at which they could strike their shores. But in an era where missiles have much longer ranges, no country can keep itself safe from missile attacks with distance alone. Does the existence of the ability to strike at long ranges call for reduced military sovereignty?

* International law should recognize some basis making it easier for third-party nations to depose international bad actors like the current leaders of Russia and North Korea.

Iran

* Islam isn't doing so well in Iran at the grass roots. "Barely 1/3 identify as Shia Muslims. There are now more Zoroastrian and Atheists than Sunnis. Conversions to Christianity are skyrocketing. Mosque attendance is in the gutter. Muslim baby names have dropped massively. Of course the IRI is panicking." Only 40.4% of Iranians self-identify as Muslim and more than 20% of them identify as non-Shiite, which is pretty pathetic for a Shiite Islamic theocracy. About 46.6% are some manner of "none". Apparently, about 5.4% are adherents of non-Muslim religions.


Via Twitter.

* Politically, Iran has gone from being an absolute theocracy to a flawed democracy in which voters make genuine choices about the country's secular leaders, albeit subject to significant interference by theocratic institutions. It is not a one party state, or a dictatorship/quasi-monarchy on the secular side with no prospect of replacing political leaders who have real political power. Taken together with creeping, covert secularization, and significant religious diversity, and an economy which isn't dominated entirely by oil wealth, the prospects of flipping Iran into a more democratic, less theocratic, less internationally aggressive country are real.

* This said, Iran is responsible for a lot of global mischief. It is behind the military capabilities of the Houthis in Southern Yemen, Hamas in Israel, and Hezbollah in Lebanon. It is a leading military exporter to Russia. It has close military ties to North Korea. 

* Iran's homegrown defense industry capabilities are, like those of Israel and South Africa, and to a less extent, Turkey, a product of international sanctions that made buying arms from third-parties harder than making its own.

Rescuing People And Mobile EMS

* The Army plans buy of about a thousand Armored Multipurpose Vehicles for medical evacuation and field hospital use. Surface combatant warships are vulnerable multiple threats and have limited ability to protect themselves from them. War games show that in a Chinese attempted amphibious invasion of Taiwan that virtually every Chinese, American, Japanese, and South Korean ship involved in the fight would be sunk in fairly short order and that many warplanes involved in the fight would also go down. This would leave the Taiwan strait full of sailors and airmen, many of whom do not have fatal injuries but wouldn't have the ability to swim to shore before drowning and would be in an area of active or imminent armed conflict. The U.S. has few capabilities dedicated to this purpose (it has one or two submarine deep sea rescue units and puts life boats on ships) and does not even seem to have given much thought to it. Some ideas that come to mind are a quasi-artillery or quasi-missile that delivers to life boats/life vests to some point in the sea, a life boat that can be transmitted by drone to specific coordinates, a submersible or semi-submersible search and rescue (SAR) ship/boat, an unarmed SAR helicopter (possibly also able to drop life vests and/or life boats), or small manned rescue boats.

* The U.S. Navy is overdue for new hospital ships. But, perhaps they should be assigned to the Coast Guard instead in peacetime.

* Motorcycle based paramedics/car accident responders still make great sense. So does drone based emergency equipment delivery (e.g. jaws of life, medicines, medical equipment).

Politics

* Objectively, the Republican Party is the stupid party. People who are aware of basic indisputable facts, like knowing what legal issues Trump is facing, knowing some medical basic facts about pregnancy, knowing that the 2020 election was legitimate, knowing the state of the economy and crime rates, knowing that immigration doesn't increase crime, etc. almost invariably is associated with non-MAGA political views. Horrible MAGA political views are tied to a significant extent to a view of what the facts about society are that is at odds with reality.

* The MAGA movement is the terrifying intersection of demagogues and natural stupidity, a problem that the Founders were well aware of and feared all of the way back to the Federalist papers, but didn't have a solution for other than virtuous voters. On one hand, this would offer hope that getting masses of people to know basic facts would save us. On the other hand, we know that lots of people and especially MAGA types with less education and high levels of distrust of reliable sources of information, are fact resistant and that just presenting information to people doesn't change their views on issues with partisan or ideological or theological relevance. People can change views to stay in line for their own leaders, at least temporarily (see, temporary GOP support for Russia and Putin), but the process is a social one not a logical-rational one.

* Republicans are also much more open to political and private violence, outright defiance of the constitution and political structures, cheating in both political and private matters, crime, and corruption. They have a herder mentality in a post-herder society.

* The U.S. is at a very vulnerable point and could get much worse. The abortion bans in half the states following the Dobbs decision is one example (although state initiatives and state courts applying state constitutions are rolling this back in some states) and efforts to punish people for crossing state lines to access abortion and gender care services is worse yet. Outright secessionism and nullification talk is another, exemplified by legislation in Utah to allow nullification and blatant disregard of the law in Texas with the border situation. Xenophobia and isolationism are back. We're seeing rolling back of child labor laws. Transgender people are actively being officially scapegoated and attacked in Red State America. The pro-racism movement is alive and well in the anti-woke, anti-diversity, equality, and inclusion movement, and more. Red state hostility to higher education generally is ramping up as illustrated by the hard right takeover of New College of Florida which is basically dead now. The red state opposition to zero state budget cost Medicaid assistance is a crazy, self-inflicted way to make people sicker with no legitimate policy justifications and is driven by nothing more than anti-Democrat spite. The stubborn refusal to regulate guns and to make gun violence worse with laws like Stand Your Ground laws is appalling. Yet, frighteningly, this extremism doesn't seem to be doing much to shift political polls. The intense hate of Biden and the support of absolutely repugnant Trump mystifies me, even though Biden was not anywhere near the top of my list for Presidential nominees and seems to be running a very weak Presidential campaign.

26 December 2023

Piracy Defined

The UN Convention on the Law of the Sea, Art. 101, defines piracy as "acts of violence[,] detention,... or depredation... by the crew or passengers of a private ship... against another ship[.]"

24 October 2022

Twenty-Five Hot Legal Issues

I am a lawyer who sees the issues presented by my clients and the issues I get inquiries about from potential clients. In that capacity I also read essentially all the new published decisions of the Colorado Supreme Court, the Colorado Court of Appeals and most of the new decisions of the U.S. Supreme Court, receive updates in some legal areas from regular services to which I subscribe, and read the Colorado Bar Association and Denver Bar Associations monthly publications on a regular basis.

I sometimes participate in providing answers at Law Stack Exchange and Politics Stack Exchange (where I am a moderator), regularly read How Appealing, the Volokh Conspiracy and at least three law professor's blog (in the sidebar), a blog about the legal profession (About the Law), a blog about legal issues with national security implications (Lawfare, in the sidebar), and economics and politics sites that routinely discuss legal issues. 

I also encounter emerging or increasingly relevant legal issues in the general mainstream media (e.g. CNN, the New York Times, the Washington Post, and the Denver Post), as people ask about or discuss issues on Facebook.  

As a result, I have some sense of what areas of law are emerging, more relevant than they have been previously, or are in a state of flux. 

This post identifies twenty-five of those legal areas (yes, what constitutes one or multiple legal issues is somewhat arbitrary, one could vary the number simply by being more of a lumper or more of a splitter):

1. Jurisdiction, choice of law, and tax issues pertaining to remote work both interstate and international.

2. Jurisdiction, choice of law, income tax, sales and VAT tax, copyright, patent, rights of publicity, defamation, intellectual property licensing, occupational and professional licensing, business licensing, European and California privacy law, terms of service contracts, online fraud remedies, harassment and cyberstalking, obscenity, human trafficking, and revenge porn considerations that apply to Internet commerce and activity.

3. Privacy laws, in general, including those related to health information, doxing, cancel culture tactics, educational information, and information about Internet activity.

4. Laws about the legality of audio and video recording of conversations and events.

5. Non-competition agreements and non-disclosure agreements. 

6. International sanctions laws, war crimes laws, anti-terrorism laws, and extraterritorial jurisdiction.

7. Cryptocurrency issues, especially with regard to income and estate taxation, duties to disclose assets, and money judgment enforcement.

8. Election law (especially election administration law), treason and sedition law, and governmental liability.

9. The propriety of national injunctions, especially in federal public law cases, and issues of forum shopping.

10. Separation of powers issues in the federal government.

11. Dormant commerce clause limitations on legislation.

12. Laws regulated to COVID and public health restrictions.

13. Issues related to abortion law in the U.S.

14. Issues related to gay rights.

15. Gun control.

16. Family law issues in non-traditional families (i.e. in families other than married couples who children, if any, are all traditionally conceived children of both spouses, and other than divorces of such couples), and in non-traditional reproduction means (like surrogacy and IVF).

17. Indian tribe related adoptions, international adoptions, open adoptions, stepparent adoptions, same sex couple adoptions, and means by which a father's parental rights can be terminated to facilitate an adoption.

18. Partition law, i.e. the law of disentangling co-owners of real property outside the context of a divorce.

19. Home owner's association related disputes.

20. Disputes between neighbors regarding property lines, trees, and noise remain surprising relevant and often, surprisingly complex. 

21. Issues related to owning real property abroad.

22. Legal issues related to partial marijuana decriminalization.

23. Laws related to black box AI and machine learning decision making, and AI autonomy.

24. Laws related to the civilian and military of drones (especially airborne drones).

25. The legal status of non-citizens in the U.S. both documented and undocumented, of areas outside U.S. states in U.S. jurisdiction, and of Indian country.

29 December 2021

Accountability Works

According to the nonprofit organization Airwars, the U.S. has conducted more than 91,000 airstrikes in seven major conflict zones since 2001, with at least 22,000 civilians killed and potentially as many as 48,000.

How does America react when it kills civilians? Just last week, we learned that the U.S. military decided that nobody will be held responsible for the August 29 drone attack in Kabul, Afghanistan, that killed 10 members of an Afghan family, including seven children. After an internal review, Secretary of Defense Lloyd Austin chose to take no action, not even a wrist slap for a single intelligence analyst, drone operator, mission commander, or general. Pentagon spokesperson John Kirby bizarrely said, “We acknowledge that there were procedural breakdowns” but that “it doesn’t necessarily indicate that an individual or individuals have to be held to account.” . . .

U.S. bombings since 2014 have consistently killed civilians but that the Pentagon has done almost nothing to discern how many were harmed or what went wrong and might be corrected. As Khan noted, “It was a system that seemed to function almost by design to not only mask the true toll of American airstrikes but also legitimize their expanded use.” . . .

Impunity tends to begin at the top. No American general has been disciplined for overseeing the catastrophic wars in Afghanistan and Iraq, nor for lying to Congress about these disasters. The opposite has occurred: Stars have usually been added to their shoulders, and when they retire from the military, they tend to march into well-paid positions as board members in the weapons industry or elsewhere (even though they are not strapped for resources, thanks to pensions that can reach $250,000 a year). The reputation-protection racket is so galling that an Army officer who served two tours in Iraq wrote a now-famous article in 2007 that noted: “A private who loses a rifle suffers far greater consequences than a general who loses a war.” . . .

We should not be surprised. We are a society that excels in elite unaccountability. Just look at the number of bank CEOs who faced criminal charges after the 2008 financial collapse (zero), or the number of Sackler family members who were criminally charged after their company, Purdue Pharma, started the opioid epidemic with OxyContin (also zero), or the number of billionaires who avoid paying income taxes (lots of them). And let’s not forget the politicians and pundits who goaded America into an illegal invasion of Iraq in 2003 and suffered no consequences. . . . .

Military impunity is somewhat unique because it stretches downward, too. If an intelligence analyst or drone operator or fighter pilot follows orders and procedures for an airstrike that kills dozens of civilians in a wedding party — which has happened — they need to be excused of wrongdoing. After all, who gave the orders, and who set the procedures? These questions would require looking up the chain of command, and for that reason, they are not asked with any intention of finding the answers. That’s why it was with no sense of alarm that secret military documents published by The Intercept in 2015 noted that in a two-year campaign called Operation Haymaker, 9 of 10 Afghans killed in U.S. drone strikes were not the intended targets. For the U.S., this was the acceptable cost of doing business.

The Pentagon’s culture of impunity for killing civilians stands in contrast to its zealous pursuit of soldiers for other offenses.

The Pentagon’s culture of impunity for killing civilians stands in contrast to its zealous pursuit of soldiers for other offenses. Unlike the Securities and Exchange Commission, which regulates the financial industry, or the IRS, which oversees taxpayers, or the Senate and House ethics committees, which keep an eye on members of Congress, the U.S. military has wide authority and deep resources to impose an array of penalties, from pay reductions to loss of rank and death sentences. The military avidly uses these powers, too. In 2020 alone, there were more than 37,000 cases of discipline in the armed forces, and since 2001, there have been more than 1.3 million cases.

Yet these powers have been used sparingly or not at all when it comes to airstrikes that kill civilians. One of the worst massacres in two decades of warfare occurred not long ago, on March 18, 2019, when U.S. warplanes dropped bombs that killed scores of civilians, mostly women and children, in an Islamic State enclave in Syria. The carnage was immediately apparent. As the Times reported last month, an analyst who watched the attack on a drone video typed into a secure chat system, “Who dropped that?” Another analyst wrote, “We just dropped on 50 women and children.” A quick battle assessment settled on 70 people killed.

A legal officer flagged it as a possible war crime that warranted an investigation. . . . “but at nearly every step, the military made moves that concealed the catastrophic strike.” The Pentagon’s inspector general looked into what happened, but even its report was “stalled and stripped of any mention of the strike.” An evaluator who worked on the inspector general’s report, Gene Tate, was forced out of his job after complaining about the lack of progress and honesty. Tate told the Times: “Leadership just seemed so set on burying this.”

I could go on for thousands of words describing other airstrikes that killed civilians and resulted in no discipline or slight reprimands that were issued only after embarrassing reports from news organizations and human rights groups. For instance, there was a 2015 airstrike on a hospital in Kunduz, Afghanistan, that killed 42 patients and staffers; the military’s reluctant discipline included counseling and retraining for some of the personnel involved. The point is this: A military establishment that has enthusiastically enforced requirements for things as petty as wearing a reflector belt while jogging has consistently failed to discipline soldiers for wrongful bombings that its own battle assessments acknowledge have killed civilians.

The machinery of impunity actually has two missions: The most obvious is to excuse people who should not be excused. The other is to punish those who try to expose the machine, because it does not function well in daylight. That’s why Daniel Hale, an Air Force veteran whom the government accused of leaking those classified drone documents to The Intercept, was sentenced under the Espionage Act to nearly four years in prison. It is not the act of killing civilians that will result in definite and heavy punishment, but exposing the act of killing.

In 1992, I interviewed a Muslim girl in Bosnia who had been raped. “The Višegrad warlord took a fancy to her,” I later wrote, “and one night dragged her and her younger sister away from their mother, who of course was crying hysterically and holding onto the legs of the warlord, who kicked her away and shouted, ‘I am the law.’”

The warlord’s name was Milan Lukić, and he was one of the most evil men in a war that had a surplus of them. He killed women and children with particular ruthlessness, one time setting fire to a house in which 59 civilians were sheltering; they all perished. But Lukić was saying one honest thing when he kidnapped the sisters: He was the law. His paramilitary thugs had a monopoly on violence in Višegrad and the full support of Serb political and military authorities. At the time, I didn’t imagine that their crimes would catch up with any of them. . . .

Yet the impunity that seemed eternal in Bosnia turned out to be short-lived, at least for the elites of criminality. Lukić is now in prison with a life sentence, thanks to his conviction at the International Criminal Tribunal for the former Yugoslavia for crimes against humanity. Key wartime leaders were extradited to the Hague too. Slobodan Milošević, the president of Serbia, died of a heart attack before his trial concluded, but Radovan Karadžić and Ratko Mladić, the political and military leaders of Bosnia’s Serbs, were convicted of genocide.

America in 2021 is not Serbia in 1995. Our machinery of impunity is not susceptible to pressure from larger nations. But the journalists, whistleblowers, and researchers who have done the hard work of exposing its lies — they are still at work. One thing I’ve learned over the years is that the more these people uncover, the harder they toil. I wouldn’t bet against them.

The good news is that an empirical analysis shows that ending abuses by the military-intelligence complex has a fairly straightforward solution: accountability. 

Decision-making in intelligence matters is often assumed to be an extra-legal process. This article however shows that the determining factor in compliance is a legal one: the likelihood of the state being held effectively accountable for a breach of international law. Through a behavioural analysis of state conduct in intelligence matters and the modelling of intelligence decision-making, the article demonstrates that state behaviour in intelligence matters can be explained and predicted. Taking compliance as the standard for assessing the effectiveness of regulation, this finding has strategic implications for the actors of the international legal order attempting to enhance compliance. Specifically, increasing the likelihood of effective accountability increases the probability of compliance and decreases the weight given to extra-legal and domestic considerations in decision-making, regardless of the activity and state considered. Hence, rather than focussing on the regulatory framework itself (international law), regulatory approaches aiming to enhance compliance should focus on improving accountability.

30 November 2021

International Extradition Is Rare

In theory, felons who flee abroad can be extradited to face criminal charges, even in international cases. In practice, the process is sufficiently cumbersome that it is reserved for the most egregious cases, and even then, it takes a long time to make it happen.

A Colorado man wanted as a suspect in a 2016 sexual assault case has been extradited from Ecuador to Jefferson County. Peter Robert Dettmer, 69, faces 126 sexual assault charges, according to a district attorney’s office news release. He was extradited last Wednesday. Dettmer was arrested in Colorado on June 10, 2016, on multiple sex assault charges and entered a plea of not guilty on Aug. 29, 2016, court records show. He then failed to appear for a trial scheduled for Jan. 23, 2017. 
Arrested in Cuenca, Ecuador, on April 27, Dettmer’s extradition was carried out by the FBI with assistance from the U.S. Department of Defense, U.S. Department of Justice’s Office of International Affairs and the U.S. Department of State, the DA’s office news release said. His is the second extradition from Ecuador to the United States in the past 27 years.

From the Denver Post. 

27 June 2017

Yet More SCOTUS Rulings

There were five new merits decisions from the U.S. Supreme Court on Monday which combined with orders entered today, wraps up the year (the October 2016 session) for the court.

* CALPERS v. ANZ Securities. The three year statute of repose for a suit alleging false statements in a registration statement is not tolled for individual claims while a class action lawsuit is pending. The decision is 5-4 involving the usual suspects. The dissent argues that individual claims of people who opt out of a class action are effectively part of the same civil action and hence are not untimely. But, the court takes an anti-class action stance once again.

* Davila v. Davis. A trial lawyer for a defendant convicted and sentenced to death preserved an arguably valid legal objection at trial, but the appellate lawyer for the defendant failed to raise the issue on appeal in conduct that arguably constituted ineffective assistance of counsel. The habeas corpus lawyer then failed to timely raise the issue of the appellate lawyer's ineffective assistance of counsel, which was arguably a second distinct instance of ineffective assistance of counsel. But, SCOTUS holds that ineffective assistance of habeas counsel in failing to point out ineffectively assistance of counsel by appellate counsel, is not sufficient to overcome the usual deadline for complaining about ineffective assistance of counsel by the appellate counsel. If the mistake had been made by trial counsel and habeas counsel, rather than appellate counsel and habeas counsel, review would have been available. The decision is 5-4 involving the usual suspects. Justice Thomas emphasizes the fact that there is no constitutional right to a criminal appeal (which is true, but generally irrelevant when there is a statutory right to a criminal appeal as there is in every state).

* Trinity Lutheran Church of Columbia, Inc. v. Comer. A state constitutional provision barring any public assistance for religious schools is held unconstitutional as applied to a religious school seeking a grant for rubberized surface material upgrades in a playground. The Court distinguishes between being denied benefits because one is a religious institution and being denied benefits because it would use the benefits for religious purposes (which the Court has previously held is permissible). The decision is 7-2 with Thomas and Gorsuch providing one concurring opinion and Breyer concurring in judgment only.  Thomas and Gorsuch would overturn Locke which held that denying funds that could be used for religious purposes is permissible. Breyer focuses on a narrow ruling limited to "a general program designed to secure or to improve the health and safety of children.", that has no religious content. Sotomayor and Ginsburg, in dissent emphasize that the Court is "holding, for the first time, that the Constitution requires the government to provide public funds directly to a church." This is contrary to state constitutions in more than 30 states including Colorado. It isn't clear if the conservatives have the votes to extend this to voucher cases like the one arising in Douglas County, Colorado's schools that would have allowed high school vouchers to be used for private religious schools at the K-12 level whose instruction would be explicitly religious, which were remanded for reconsideration by the Colorado Supreme Court in light of this opinion. A New Mexico case involving closer facts was also remanded to be reconsidered in light of this opinion. This case could portend a major change in establishment clause jurisprudence, or could involve only a narrow exception to existing law with little material impact.

* Hernandez v. Mesa, per curiam. The case is a Bivens action against a border guard is shot and killed a 15 year old Mexican boy on the other side of the border from the U.S. for no justifiable reason. The legal standard to determine if a Bivens action is available was clarified in a recently decided SCOTUS case (which is generally favorable to the government and was decided with a four justice plurality that might not have had the same result if all justices participated) and the high court disagreed with one aspect of the Court of Appeals' analysis of the facts (which is generally favorable to the Mexican boy's estate). The Court remanded to the Court of Appeals to reconsider the case in light of the new law and a differently applied factual issue before SCOTUS addresses the merits of the case, with procedural issues to be decided first in order to avoid the substantive law question if possible. It is quite likely that the Court of Appeals, on remand, will deny the boy's estate a right to bring a Bivens action and that the case may return to the U.S. Supreme Court for further review, either way.

* Trump v. International Refugee Assistance Project, per curiam. The Court grants cert with regard to the Trump administration's Muslim ban on an expedited briefing schedule, sustaining the stay of the ban as to some people affected by it, while terminating the stay as applied to people with "no connection to the United States at all", pending resolution of the case by SCOTUS. This effectively reinstates the ban as to many refugees who had been fully vetted and has visas in place in a manner that will probably render their case moot by the time that the Court can hear it on the merits (since the ban was proposed to be for 90 days). But, since the stay was in place for a significant period of time pending this order, many such people will have already entered the United States at this point.

23 March 2016

Martian Property Law

Physics recognizes the inherent value of considering how its discipline will theoretically explain evidence that may be discovered in the future, but might not.

Legal scholars do so less often, but Thomas E. Simmons of the University of South Dakota School of Law has a fascinating article discussing how property law would play out in a hypothetical future permanent human colony on Mars in light of existing international treaties. It is a fitting subject for a legal scholar in a part of the country that was itself a new frontier not so long ago and has an economy similar to the one most people envision for a future Mars colony.

There is an academic literature on everything.

Musicians are no slouches either.  For example, electronic dance music group Blackwell has an album entitled "Music for Dining in Space."

08 August 2014

The Case For Atrocity Prevention On A Budget

Saving The Yazidis

Yesterday, President Obama authorized the U.S. military to make airdrops of food and water supplies, and airstrikes in the part of Iraq under the control of the Islamic State that has de facto political control of most of Northern and Western Iraq and Eastern Syria.  Before taking action, he obtained the permission of the elected civilian Iraqi government that the U.S. and its allies installed in the wake of the Iraq War that deposed the Baathist regime of dictator Saddam Hussein, to take action in Iraqi territory.

The mission was carried out with five aircraft.  A large C-17 military cargo plane and two smaller C-130 military cargo planes dropped 72 bundles of food and water containing a total of 5,300 gallons of drinking water and 8,000 pre-prepared military ration meals over about 15 minutes in a target drop area.  Two F/A-18 fighter jets (the main kind of jet fighters deployed on aircraft carriers) escorted the cargo planes and bombed selected Islamic State military targets in the vicinity.

President Obama did this to protect members of the Yazidi religious minority trapped in Sinjar Mountain without food and water facing imminent slaughter by fundamentalist Sunni Islamist fighters from the Islamic State.  Stopping an imminent atrocity that we had the power to prevent from happening was a central justification for the United States to take some steps, however modest, to help.  The Yazidi community had previously relied regional Kurdish government militias to protect them, but the Islamic State had outgunned the Kurds in this instance, which is in the heart of the territory that they claim as their own.

The Islamic State openly acknowledges that one of its objectives is the extermination or exile from its territory ("ethnic cleansing to use the term used by Serbs in the war in Bosnia) of the Yazidi people.  Their fundamentalist reading of Islamic law calls this objective a religiously required and righteously moral  jihad. The rest of the world and international law, however, consider any efforts to carry out these objectives by the Islamic State to be the war crimes of genocide and of the disproportionate slaughter of civilians, because killing these non-combatants civilians serves no legitimate military objective.

President Obama also did this protect the safety of U.S. humanitarian aide workers and U.S. diplomats at a U.S. consulate in the vicinity, but this justification was secondary.

The U.S. could have simply brought U.S. citizens in the region into the consulate, holed up there with protection from a beefed up Marine Guard Unit, and extracted the people in the consulate if it appeared that this modern fortress would not hold, while leaving the locals to fight their own battles without any U.S. intervention.

The United States has done many times in the past at locations around the world.  An evacuation of this kind from the U.S. embassy in Vietnam in the final days of the Vietnam War was famously captured by news photographers. A 2003 Hollywood movie on this theme called "Tears of the Sun" portraying an effort to make this kind of extraction in an African country that was falling apart that famously illustrated the moral problems with this kind of policy.  This week's episode of international intervention by President Obama, however, is one of the first times in recent memory in U.S. history that the U.S. has taken action to address the moral problems with its standard evacuate its own and don't intervene protocol in these situations.

Who Are The Yazidi and Why Does The Islamic State Want To Slaughter Them?

While it doesn't really matter much to the larger issue of U.S. policy towards preventing atrocities like the Islamic State's attempt to slaughter the Yazidi people, it is worth a moment to familiarize ourselves with who they are and why the Islamic State wants to kill them.

From the point of view of their fundamentalist Sunni Muslim religious doctrine, the Islamic State is justified in its genocide of these people.  Islamic law calls for Muslim communities to allow other "People of the Book" (i.e. Christians and Jews) to be tolerated on a subordinate basis, but demands the conversion or extermination of pagans and heretic Muslims.  But, the Yazidi are clearly not "People of the Book."  And, in the interests of expediency and terrorizing dissenters, the Islamic State, in  the honeymoon period at the dawn of its regime, has focused on the extermination strategy, rather than the conversion approach.

The Yazidi people's religion is an offshoot of Zorastrianism, with a strongly gnostic character and borrowing from other pagan religious traditions of Mesopotamia.  There are about 700,000 Yazidi people in the world, about 500,000 in Iraq (mostly in Ninevah province in an area near the Kurdish-Arab ethnic boundary in that Northwestern Iraqi province), about abut 35,000 in Armenia, about 18,000 in Tiblisi, Georgia (with another 2,000 elsewhere in Georgia), and about 105,000 in a diaspora mostly in Germany, Russia and Sweden.

Gnosticism is a mystical metaphysical belief system that was influential particularly among Neo-Platonistic philosophers and early Christian sects of the classical Greco-Roman era in the Eastern Mediterranean that lost the struggle to become the orthodox interpretation of Christianity among early Christian sectors that considered each other to be mutually heretical.

Zoroastrianism was the predominant religion of Iran (known as Persia at the time) from ca. 1000 BCE to about 650 CE, and communities that practiced this religion were common throughout the classical Greco-Roman era in Anatolia, Babylon and Central Asia.

Zoroastrianism is a likely religious source of ideas that would give rise to Christian metaphysical understandings of the world we live in as a battle ground between the forces of Good, led by God in Heaven, and the forces of evil, led by Satan in Hell, who send angels, prophets, Jesus and demons into the world to do their bidding.  These ideas probably made their way into Christianity, not directly, but through Jews returning to the Levant from a period of exile in Babylon where they would have been exposed to Zoroastrianism who incorporated these ideas into one of more Jewish sects from which Christianity emerged.  These Zoroastrian influences had little impact, however on the sects of Judaism that would go on to found modern Rabbinic Judaism after the fall of the Second Jewish Temple in 70 CE.

In addition to the Zoroastrian influenced Yazidi people mostly from Northern Iraq in the vicinity, two relatively "purely Zoroastrian" faiths remain.  The Parsi community, which migrated to India from the Persian capitol of Pars in the wake of the initial mass forced conversion to Islam in Persia ca. 700-900 CE, and the Irani community, who migrated to India from Iran ca. 1500-1700 CE, in the wake of a crackdown on relict Zoroastrian communities by a later Islamic ruler in Persia.

Today, fewer than 1 million of the 7046 million people on Earth are either Zoroastrian or Yazidi: the 700,000 people who share the Yazidi faith (which is sufficiently far from its Zoroastrian influences to be considered a separate religion from it) and the 125,000 to 300,000 members of Zoroastrian sects.  These Zoroastrians are found today in India (ca. half of the world total), Iran (ca. 1/6th), Azerbaijan, Afghanistan and Pakistan (ca. 1/8th in these three countries combined), various English speaking countries around the world (about 1/5th of the world total), and small communities in Singapore and the Gulf States (about 1/20th).

The Case For Atrocity Prevention On A Budget

We Are Regularly Aware of Atrocities That Are Imminent Or In Progress

The modern reality is that telecommunications and widespread global travel, communication and commerce brings news of imminent atrocities or atrocities in progress around the world to the attention of well informed Americans several times a year.

We knew about the Hutu genocide directed at Tutsi people in Burundi as it was about to happen and started to happen.  We were aware of the Boko Haram capture of hundreds of school girls in Northern Nigeria before many people in Lagos did and have also heard promptly about the many instances in which Boko Haram has slaughtered whole villages in Northern Nigeria.  We have witnessed Syria and Libya use aircraft to bomb their own civilian populations, and promptly witnessed Syria use chemical weapons on its own people in a way that did not discriminate between soldiers and civilians - we intervened in Libya under Hilary Clinton's leadership as Secretary of State, but did not in Syria, in order to avoid crossing Russia which deployed war ships to the Syrian coast to discourage Western intervention in the conflict.

Together With Our Allies, We Have The Ability To Stop Many Individual Atrocities

The United States has, by far, the most powerful military force in the world.  It has the largest and most advanced air force and is the only country with a significant fleet of operational stealth aircraft.  It has the largest blue sea navy in the world by war, and the greatest power to use that navy to establish bases for its troops and aircraft and missiles far from its own territory.  It is rivaled only by Russia in its nuclear arsenal.

Only China has more tanks (although, surprisingly, Syria is second to the United States in that respect).  Also, only China has more active duty soldiers, despite the fact that the U.S. has about a third fewer active duty soldiers than it did during the Cold War, and has a wealth of veteran officers and non-commissioned officers with wartime experience and training that rivals any other military in the world.

The budget of the United States military is the largest in the world and rivals or exceeds the military budgets of the rest of the world combined.  Our intelligence resources are second to none.

The U.S. also has a great many allies in the world, many of whom are willing to offer up their assistance and military resources as part of coalitions with the U.S. to advance uncontroversial missions, and the U.S. together with its developed world allies, collectively, wield immense economic power in the global economy.  The money that third world despots have available to fund their own military organizations comes mostly from their share of profits from the domestic operations of multinational companies based in the developed world, from sovereign wealth funds invested in developed world economies or in developing economies other than their own through international financial markets in developed world economies, and through direct military aid and loans to these countries.

Even if the U.S. cannot unilaterally sanction sovereign bad actors in the world economy effectively with economic sanctions, the community of first world nations, collectively, if they chose to do so, collective do have economic control over the rest of the world.

Meanwhile, the atrocities that we do learn about almost always take place in smallish (compared to the United States or the European Union or China or India, for example), third world or developing world countries with non-democratic governments with regimes that leave little to find worth respecting, other than their bare sovereignty.

We don't intervene in this atrocities, however, most of the time, out of a lack of direct national interest, a fear that we will end up footing an unaffordable bill in the lives of our soldiers and treasure, to become a "World Policeman" that we are not politically willing to pay, and a fear that intervention will impair the benefits we and our allies receive from the principle of absolute national sovereignty, transforming civil wars and insurgencies across the globe into a Pandora's box unleashed to international wars.

Devoting A Measured Amount of Resources To Atrocity Prevention As An Express, Secondary Mission Of Our National Defense And Intelligence Establishment Is In Our National Interest.

I believe that we can do better, and that it is in our interest to do so.

We can't do everything as a world policeman, but we could certainly set aside 1%-2% of the defense and intelligence budget ($7-$14 billion a year plus contributions from allies who would join us in this venture, with perhaps 15,000 to 30,000 active duty soldiers and appropriate weapons systems, vehicles and gear for their missions), together with no additional cost or low additional cost assistance from other national security resources (such as spy satellites), for a military, intelligence, law enforcement, and humanitarian aid force that had as its primary mission preventing atrocities due to military force or natural disaster, intervening to prevent atrocities in progress, and holding the war criminal perpetrators of atrocities accountable.

This force wouldn't be large enough to effect regime change, or serve as long term peacekeepers as the U.N. Blue Helmet forces do, but it would be enough to rapidly intervene in international crisis situations much like police, firemen, and EMTs do domestically.  Even a tiny force of a five planes and perhaps a couple of hundred active duty servicemen was enough to make all the temporary but critical difference that may have saved thousands of lives for the Yazidis in a moment of crisis this week, for example.

This narrow mission - limited to war crimes and national disasters - would also provide a limiting principle to this exception to the general principle of national sovereignty that would prevent the general rule from being too badly compromised.  This would be akin to the domestic violence and child abuse and neglect exceptions to the general rule of a family's right to privacy in its own home and autonomy and religious freedom in how the members of that family raise their children.  This narrow mission would also help to keep this agency popular politically, both at home with voters and abroad with allies.

This agency could be mobilized by the President in times of war for other national defense missions, much like the Coast Guard, the National Guard, and the Army, Navy, Air Force and Marine Corps reserve units.  So, this spending while being put to use and generating a corp of people with real life conflict experience, would be available if necessary.  And, honestly, a huge percentage of the U.S. military (certainly more than 1%-2%) is training (often for missions that are highly unlikely to every happen), rather than involved in carrying out any other military operations or objectives, at any given time.

The limited budget of the agency, contributions of third party economic resources, and limited mandate of the agency would allow the United States, through the agency, to be a world policeman, without falling down the slippery slope that would overextend American budgetary resources, expose American soldiers unreasonable to risks not justified in the narrowly construed national interest, or impair the general rule of sovereignty as a governing principle of international law.

In addition to assuaging our consciences and "saving the world", this agency would also enhance U.S. soft power by adding to U.S. goodwill, in the world through the horrors it prevented that it had no obligation to prevent, and by cementing a global perception of international leadership and of the U.S. as a first among equals in the world.

Furthermore, by establishing that there is someone in the world who will intervene to stop war crimes, save disaster victims, and punish war criminals, this agency would discourage war crimes as a political tactic and would mitigate the harm caused by natural disasters and in the process would make the world a safer place for American commerce and Americans around generally and would advance democracy.  World leaders who can't credibly threaten to commit war crimes with impunity are weaker and this strengthens the hands of the comparatively good guys around the world in their own domestic struggles for political power, making the world a better place for everyone and enhancing economic development in a way that ill supervised, tiny grant programs have failed to achieve.

Details: Some Guiding Principles

As a result of budget limitations, the agency might not have the ability to response to every incident in the world that its mandate would permit it to intervene in, and political realities like credible demands from nuclear armed countries that the agency not intervene in a particular conflict would prevent it from taking on other missions.

I would contemplate a threshold for taking on a mission that might result in three to six major war crime interventions in a particular year, perhaps another half a dozen or dozen potential war crime interventions that can be handled with much smaller teams (perhaps a platoon or smaller with a few civilian advisors), and perhaps half a dozen to a dozen full fledged natural disaster responses a year in cases where no other responders are adequate and deployments of a few specialists to assist otherwise adequate national natural disaster responses in a couple of dozen other cases.  A budget of $6-$13 billion a year, plus perhaps $1-6 billion of agency supporter and coalition support would probably be able to manage a level of operations on something like this order of magnitude.  If it couldn't, it would do less.  Someone in the organization would have an office devoted to finding other people to do work within the agency's mandate that it can't afford to do itself.

Typical missions would last anywhere from a few days to a few months.

I would imagine that the number of people at any given time being investigated, pursued, or prosecuted for war crimes might number in the dozens or low hundreds in an operation that might cost $100 million to $1,000 million a year, but might also generate revenues sporadically from asset forfeitures from convicted and suspected war criminals, and, like support for humanitarian natural disaster aid, it might generate national government financial support in cases from countries that might be uncomfortable supporting military action to support war crimes (e.g. from countries like German and Japan that have constitutions that disavow offensive military action, or from countries like Switzerland that prefer to remain a position of neutrality for the most part).

A number of missions would be outside the scope of this agency.

It would have a rapid reaction "emergency room" philosophy of stabilizing the patient, and would not be an agency in the business of providing "long term care" in the form of prolonged peace keeping missions or "nation building."

It would not respond to coups, even if they depose democratically elected regimes, that don't involve imminent risks of atrocities committed against large numbers of civilians.

It would not be an anti-terrorism force, even though there are parallels.  While one man's terrorist may be another man's freedom fighter, nobody wants to stand up for a war criminal or war crime, or to let people suffer and die as a result of a natural disaster.

It would operate with the kind of transparency found in well run civilian governmental agencies, rather than the shroud of secrecy associated with agencies that have a "national security" mission.  It would have a "white" budget, would not engage in covert operations, and would not be privy to state secrets other than brief tactical delays in disclosing operational information in order to facilitate current operations but not to protect methods and practices.  The only secrets would be those necessary to protect intelligence collection methods and practices from other national security oriented intelligence agencies.  Even then, this agency would operate on the basis of maximum transparency and would share any intelligence, used by it in a particular mission, that had to be redacted for the public with the intelligence agency counterparts of in all governments contributing to any particular mission.  It might even have a counterpart to the U.S. Secretary of State's website warning travelers and locals alike of disaster and conflict risks in various places.

The agency would have as its ultimate commander in chief at all times the President of the United States and would be an international organization permanently controlled and primarily funded by the United States government in which other governments could participate with voice and contractual promises but not a vote.  It would not be subject to United Nations or NATO control, or require their authorization to act.  Details of how missions would be authorized could be worked out.  It might be done by the President as a political decision, it might be done by vote of an agency board, it might be authorized or subject to conferral without a mandatory approval by the U.S. Senate or Congress, or some Congressional committee or foreign ally participants in the agency or the supporters of a particular mission, or it might call for a judge or multi-judge panel of a court to authorize missions at the request of a decision maker in a manner similar to an arrest warrant or search warrant or wiretap or grand jury indictment, but without the secrecy attendant with any of those tools - proceedings to request authorization to act would, as much as possible be public and certainly would not be classified.  Authorizations for missions would not themselves be specific enough to require tactical short term secrecy related to operational details.  The public discussion of a possible request to authorize a mission would be calculated (much like U.N. Security Council meetings) to deter war crimes and encourage remedial action and negotiation and disclosure of information that clarifies the situations on the part of countries suspected of committing war crimes.

In some ways it would have something of the character of the French foreign legion.  Individuals who are not citizens, nationals or permanent residents of the United States would be allowed to be employees, independent contractors and active duty or reserve military personnel in the agency.  But, military veterans of the agency receiving honorable discharges would have a right to U.S. citizenship and the same military benefits as U.S. veterans.  Foreign soldiers could swear allegiance to the agency's mission and to loyally obey the orders of its ex officio commander in chief, but not to the United States, or to its constitution or laws except insofar as they apply to the agency itself.

The agency's charter would permit up to 1/3rd of the agency's military personnel organized in national military units loaned from the military of another nation but subject to the agency's command and control, and would be allowed to receive up to 1/3rd of the agency's funding to come from supporting governments.  For example, perhaps Canada might provide a unit of 1,500 people trained in search and rescue operations and their gear at Canadian expense as part of a Canadian unit, for a couple of year commitment.  The unit would remain part of the Canadian military, but while serving with the agency, that Canadian unit's commanding officer would report to the general who was the commanding officer for the military personnel in the agency who in turn would report to the President of the United States.

The agency would also be permitted to borrow or rent military or civilian resources from non-U.S. governments on a long term or temporary basis.  "Significant" free borrowing or "significant" dramatically below reasonably equivalent value support, however, would count against the 1/3rd of agency funding from outside sources that was permitted under its charter.  Short term use of resources donated to it (e.g. use of an air field or port or vehicle for less than a month in connection with current missions), donated humanitarian supplies, volunteers not paid by their sponsoring governments, somewhat below fair market value economic arrangements, unrestricted donations from individual or corporate donors not affiliated with or controlled by a government, or donations under some threshold of dollar value per year, would not count as significant.  Bribes and kickbacks for individuals working at the agency would be strictly forbidden (no "tipping" allowed for rescuers except as authorized by express written policies of the organization).

U.S. posse comitatus limitations would apply to the agency just as they do to other U.S. military forces.

The United States and other supporting countries could (and would) delegate to the agency the authority to issue refugee visas and to transport refugees to the sponsoring countries in a safe and secure manner.  Each nation's delegations of immigration authority would be on its own terms and conditions and would be individually negotiated.  Thus, for example, Germany might offer to provide refugee status to 10,000 Yazaris assisted by the agency in the year 2014, subject to processing of applications by a German immigration official loaned by Germany to the agency for the mission to assist the Yazari people in the face of a threat from the Islamic State, while Indonesia might agree to provide refugee status to up to 2,000 Sunni Muslim sympathizers and deserters who renounce their military intentions in the same mission in the year 2013, subject to processing of applications by an Indonesian immigration official loans by Indonesia to the agency for the purposes of this mission.

Countries that regularly offered to assist with refugee visas like the United States, Canada and Sweden might have civilian immigration application processors on loan to the agency indefinitely who were authorized to handle delegated refugee authority for any incident that might come up and might have form refugee visa delegation contracts drawn up and agreed to by the agency and the supporting country so that no time was wasted haggling over boilerplate details and only mission specific authorizations would have to be communicated when emergencies come up.

Similarly, there could be standing agreements and arrangements in place with particular countries regarding support for the agency through donations of humanitarian aid supplies, use of air fields, or protocols for gaining permission to cross a nation's airspace in furtherance of a mission, or to provide natural disaster response in a country.  These standing agreements might even include standing agreements to provide certain kinds of assistance to the agency in certain situations without the prior authorization of elected officials or high level government officials.

The agency might organize a system of low cost or subsidized national disaster insurance for countries that don't have sufficient financial reserves, credit, political discipline, are too small, or do not have a sufficient lack of corruption, to allow them to finance their own national responses to natural disasters when they come up (e.g. the kinds of services that FEMA provides in the United States which the United States can afford without insurance because it is large enough to spread risk widely and is affluent and non-corrupt enough to pre-fund in a natural disaster reserve fund, tax and spend or to borrow funds to provide this kind of disaster assistance if necessary).

The agency would have a secondary mission of documenting atrocities and determining who was responsible in cases that it is unable to mobilize to prevent for whatever reason.  I suspect that the agency would prove to be able in practice to mount an effective economic sanction regime on countries that commit war crimes, but its credibility and first hand on the scene documentation of war crimes when it intervenes might be sufficient to help others mobilize economic sanctions.  On the other hand, I do think that it might be able to secure widespread cooperation from national governments to cooperate in prosecuting war criminals, much as the Israeli government has received considerable support from other national governments in its long running, dogged and tireless efforts to prosecute Nazi war criminals for the principle of the matter even when they are elderly and harmless now.

War criminals who were located would be prosecuted in the U.N. War Crimes Tribunal, when available, a national court with jurisdiction (universal or specific) over the Defendant for the acts charged, or an agency military tribunal when neither the U.N. War Crimes Tribunal or a national court of the United States or a participating or cooperating country, is not available.  The relevant judicial body, as the case might be, would have authority to issue arrest warrants, to issue search warrants, to make extradition requests, to attach assets, etc. in countries with treaty relationships to the agency or a participating country taking action coordinated with the agency, and so on.  There would also be arrangements with the United States and/or other participating countries for the incarceration of war criminals convicted by these means.

Countries would have the option of signing on to a full fledged membership in the agency which would require it to consent in advance to any future authorized missions in their country, to cooperation with agency investigations and prosecutions of war criminals, and to other kinds of cooperation with and contributions to the agency.  Some of these might be particularized to particular relationships with individualized treaties in a manner a bit like individualized agreements in the Middle Ages of a notable lord to swear fealty to a more powerful sovereign lord.  They would have rights and privileges that would be respected by the lord and would be on the lord's "team" and not attacked by him without good cause, in exchange for recognizing the lord's authority to obtain certain kinds of support and cooperation from him.

17 April 2013

Corporate Tax Expenditures Are Huge

Estimated corporate revenue losses in 2011, which totaled $181.4 billion, were approximately the same size as the amount of corporate income tax revenue the federal government collected that year.
 
The GAO via the Tax Profs Blog.

Accelerated depreciation accounts for 42% of corporate tax expenditures. 

Another 26% comes from the deferral of income from controlled foreign corporations and financial firms with overseas income.  The 5% of corporate tax expenditure due to the U.S. production deduction which is a deduction on U.S. production activities meant to discourage off shoring, is a further loss of U.S. tax revenues that to a great extent exists simply to counterbalance the other tax expenditure incentives in the other direction.

Three other big tax expenditures for corporations are the R&D tax credit (5%), the low income housing tax credit (3%), and the exclusion of interest on state and local public purpose bonds from income taxation (4%). 

Other smaller corporate tax expenditures account for 20% of the total.

On the flip side, it is worth recalling that one of the most important biases against earned income in the individual income tax code (which also applies to pass through entities) is preferrential treatment for capital gains income.

This is telling.  The main reason to favor capital gains is to encourage productive business investment, but the entities that make the vast majority of productive business investment in the United States don't get this tax break.

19 February 2013

SCOTUS Handles Supremely Important Trivialities

One of the never ending fascinating aspects of American law is the not at all intuitive to a layperson process by which the U.S. Supreme Court, the highest court in the land, decides which cases to consider.  The vast majority are trivial in and of themselves, but have immense symbolic importance as they guide so many other cases in the system that they have far greater broad relevance in the principles that they declare.

Today's U.S. Supreme Court rulings

Today wasn't unusual. 

One case decided if a search and seizure of drugs from a pickup truck by a drug sniffing dog used by a non-federal Florida policeman was valid (it was, the unanimous court ruled because no evidence rebutting the dog's reliability was offered by the defendant). 

Another case held that the arrest and search of two men without probable cause when there was a warrant outstanding to search a New York State apartment for a particular handgun.  The officers did not know at the time of the arrests and search had just found a gun and drugs in the apartment the two men had just left when the arrest took place.  The U.S. Supreme Court held that an arrest and search five minutes after the men had left the apartment, and a mile away, was not justified by a doctrine allowing the arrest and search of occupants of a searched premises who are in the immediate vicinity of the premises.  It is possible that the Court of Appeals, on remand, may still find that their arrest and search was valid on other grounds.  Three of the nine judges on the Court dissented, arguing that an arrest which was actually just 0.7 miles away and was made as soon as possible as the men departed should have been valid.

In a third case, the State of Georgia and a federal anti-trust agency sued a hospital district formed under Georgia law for anti-trust violations was not barred by sovereign immunity from anti-trust laws where the statute authorizing the hospital district didn't provide for sovereign immunity from anti-trust laws, even though the Georgia legislature had the power to give it this immunity if it had wished to do so.  As a result, the hospital district will have to win an anti-trust court case against both the state and the federal government before it can purchase the second of two hospitals in a Georgia county.

In a fourth and final case, the U.S. Supreme Court allowed an appeal of an order directing an Arkansas man to return his child to his wife from whom he was getting a divorce to Scotland, pursuant to an international treaty, even though the child was now in Scotland and the wife might have the practical ability to ignore the Arkansas courts if the order was reversed on appeal.  A concurring opinion urged Congress to adopt a better law governing appeals in these kinds of cases.

None of the particular cases was important, in and of itself

None of these cases, in and of themselves, were particularly important. 

But for the fact that the U.S. Supreme Court agreed to decide them, none of these cases would have been particularly notable from the eyes of the trial court judge involved.  Each was a bread and butter ordinary piece of criminal or civil litigation.

Tens of thousands of police drug seizures take place every day and as in almost every Fourth Amendent case, the defendants were in fact in possession of contraband or powerful evidence against them, so their factual guilt was not in doubt.  The empire wil not rise or fall on the outcome of these individual drug possession cases.

It isn't entirely clear why it is necessary for federal law and federal agency resources to be invoked in a dispute over the authority of a local government in a dispute between a local government and a state government, and the ultimate decision regarding who should own one of two county hospitals is only barely a legal question at all.  In the worst case scenario, patients in the county will have to drive half an hour or so to the next county over to find a competing provider (and in an emergency, of course, there is no competition, the closest hospital is always your only choice).  The other irony is that a concern about monpolistic pricing and practices is being raised in a market where the patients aren't told the price until they get their bills anyway.  Any outcome of this case would have left both parties with options going forward.

Civil procedure issues related to child custody disputes are rarely the province of the federal courts, but it is customary that the U.S. Supreme Court get involved when two court systems that don't have authority over each other are involved in parallel litigation over the same child, particular when the case has an international dimension as this one did.  These irreconcilable tangles are still rare enough that intervention at the highest level is feasible when they come up.  Realistically, there is every reason to think that the outcome of the case won't change at all when the appeal that the husband was authorized to continue prosecuting in the state court system is resolved on the merits (probably against him).

Each case had broad legal implications for thousands of other cases

Of course, the U.S. Supreme Court didn't take these cases because they were individually important.  It took the cases to clear up broadly applicable matters of principle and thereby insure accuracy and uniformity in the administration of federal laws or the U.S. Constitution, respectively.

The importance of an individual U.S. Supreme Court usually has far more to do with the bureaucratic issues that it poses for the court system as a whole and the clarification it provides to ambiguous laws than it does with the intrinsic importance of the case itself (although some cases that go to the U.S. Supreme Court are intrinsically important).  Each ruling provides a nudge that guides thousands of other cases.

One case on the scope of occupant searchers, or on the means by which a dog sniff can provide probable cause for a search will each guide hundreds of thousands of law enforcement officers and thousands of appellate court panels at both the state and federal level for decades in probably tens of thousands or hundreds of thousands of cases.

The issue of sovereign immunity for local governments will guide legislative drafting practices in all fifty states and guide federal bureaucrats and judges attempting to determine when federal law applies to local governments in hundreds of thousands of situations every year, most of which will never actually be litigated on the merits before a judge.

The Court's ruling on mootness in the context of dueling assertions of jurisdiction in an international child custody case will have application in all manner of jurisdictional mootness disputes in every manner of case (far beyond international custody cases) for decades and may spur Congress or the State Department to attempt procedural reforms of the international custody case regime.

The mere fact that resources can be found to litigate these issues all of the way to the U.S. Supreme Court in relatively mundane cases involving less than well heeled parties is also a hopeful statement that our system does work.


17 August 2011

Inter-American Commission On Human Rights Rules In Castle Rock Case

The Inter-American Commission on Human Rights has ruled that the Castle Rock, Colorado police violated the human rights of a Colorado woman when they refused to enforce a temporary restraining order that was in force, when she informed them that there was a crisis, which made it possible for her husband to kill their three children.

If it sounds familiar, it should. The U.S. Supreme Court took up the case and held in 2005 that notwithstanding language in the statutes of Colorado that seemed to create an affirmative duty for police to act to enforce restraining orders that there was no affirmative duty for police to take any action protect anyone (at least anyone who is not in their custody). This, in turn, because it presents the issue so clearly, has profound implications for the theory of the role of the state in society in the United States. For example, interpreting a right to bear arms under the Second Amendment to the U.S. Constitution as creating an individual right to armed self-defense and access to the means to do so, in at least some core circumstances, makes much more sense in a society where the state has absolutely no affirmative obligation to protect people from private violence, even though it often strives to do so, than it does in a society where it is at least possible to use the Courts to impose such a duty on the state when there is a well founded, judicially established reason to fear violence against a particular person from another particular person, and the state enacts laws that purport to compel law enforcement to implement that judicial determination.

Of course, the fact of the matter is that once the U.S. Supreme Court has ruled on an issue, that a ruling from the Inter-American Commission on Human Rights does very little more than add a fine print bullet point to the political debate that doesn't mean much to anyone but internationalist liberals, put a little dent in the already minuscule international tourist trade to Castle Rock (it does have a number of foreign counsels in residence which may help explain why this avenue was even considered), and to provide some sense of moral righteousness to the aggrieved widow, who was surely deeply betrayed by the law enforcement of Castle Rock, whether or not she had a legal remedy for losses as a result of their inaction.

Simply put, most of the time, international law means squat in the United States. More often than not, treaties are declared not to be self-executing, in areas as diverse as treaties we have signed relating to child prostitution to the right to diplomatic assistance for foreign nationals in criminal cases (we have been internationally condemned by international human rights courts before for executing people who were denied those rights), to extradition treaties, for example. We are happy to condemn other countries for violating treaties, but take a more cavalier attitude towards their domestic enforcement than almost any other non-rogue nation on earth.

On the other hand, it is worth considering the context that causes the Inter-American Commission on Human Rights is inclined to take police inaction more seriously than U.S. courts.

In most of Latin America (and indeed most of the world), law enforcement is not primarily vested in the hands of locally elected local government officials, and there is a long history of human rights violations through systemic police indifference that amounts to implicit endorsement of vigilante or organized crime sanctioned violence against private individuals. It is a lot easier to buy off or politically win over police in that kind of system than in the United States and this kind of corruption has a long history.

In contrast, where there have been episodes in American history where this has been true in limited regions, like the Reconstruction American South where police allowed lynch mobs to operate with impunity, and police in Prohibition era Chicago who looked the other way from bootleggers, in the vast majority of the 21st century United States, over eager action directed at suspected lawbreakers by law enforcement, rather than law enforcement inaction, has been the predominant problem. Usually, cops are much more likely to face internal discipline for cowardice than they are to face internal discipline for using improper means to attempt to stop lawbreakers (with the principal exception of violations of the law by members of the law enforcement community itself).

Even in the Castle Rock case itself, no one seriously puts this tragic case in the context of a pervasive, organized, but impossible to establish, conspiracy against the widow or children in question with the intent of allowing the husband to carry out a crime. They may have not taken domestic violence, in general, or this particular domestic violence case, very seriously. They may have been lazy. They may have been incompetently bad at prioritizing their resources. They may have negligently screwed up and miscommunicated. But, no one in the Castle Rock law enforcement community thought that those children deserved to die, or would have refrained from action had they been more prescient and better organized, or was too afraid of the consequences of taking action against the husband to seriously consider trying to arrest him. Their acts may have been biased by a generalized misogyny and skepticism of a state imposed model for dealing with domestic violence that they didn't believe in, but it was not similar in kind to the common attitude of law enforcement officials in the Middle East that honor killings are justifiable homicide even if the laws on the books say otherwise.

Whatever their reasons for inaction in this case, it is highly implausible that the Castle Rock police were either bought off or intimidated by threats of harm to themselves. Nor, it is plausible to believe that they personally believed that an estranged husband has a right to kill his children by virtue of being their father as the law of the Roman Empire did. Police and district attorneys in Douglas County, Colorado (of which Castle Rock is the county seat) may very well effectively ignore the full letter of recent legal enactments like the elimination of the marital exclusion in Colorado's rape laws and may be willing to look broadly at what constitutes acceptable physical interaction between lovers or discipline of children, but they have no moral doubt that shooting one's own children with a firearm is unequivocally wrong.

The prejudices and biases that were present in the Castle Rock police department were disorganized reality filters that are typical of the conservative, overwhelmingly white, affluent bedroom community electorate who elected the people who ran the city that employed them. The fact that this mother was a Hispanic domestic violence victim surely did contribute to the overall evaluation that influenced the weight that the Castle Rock police gave to the situation. They would not have treated a plea by the Mayor's daughter related to a temporary restraining order against a man who was a stranger to her similarly.

But, this was also not even the more common American experience of a police force so defeated that it gave up on trying to figure out who is right and who is wrong is some big city ghetto where gangs contest for control of every street corner, most people distrust the police as much as they distrust the criminals, they are drastically underfunded and outgunned, and the vast majority of the crime seems to be directed at fellow criminals.

Indeed, even that situation has a notable feature that distinguishes it from the American norm of political accountability working to establish law enforcement responsiveness that is so much less routine in much of the rest of the world. Low income neighborhoods in big cities are the places where the disconnect between the residents of the neighborhoods that police are charged to enforcing order in and the electorate to whom their bosses are politically accountable is greatest. Low income neighborhoods in big cities have the lowest voter turnout rate, and as a result, voters from other neighborhoods in those cities dominate the political process.

Britain, which was recently struck by large scale riots in low income neighborhoods, is effectively one great big city in this respect. The local police are effectively responsible to the Home Secretary in London, not the local town council. There are local appointed consultative bodies that inferface with British police, but the local Mayor isn't the one who hires and fires their boss, appropriates their funds and writes their paychecks.

Conversely, it is little surprise that rural Americans, who elect sheriffs and local police and district attorneys in political units with very low populations, are demographically stable or slowly shrinking, and are extremely homomgeneous in values and demographics, tend to be the least concerned about legal limitations on police authority and the most supportive of "tough on crime" stances in the face of other considerations. Their law enforcement officials see eye to eye with them more closely than law enforcement in almost any other political context in the United States, or perhaps even the world.

All of this is a long winded way of saying that while police indifference is always a bad thing, the U.S. Supreme Court wasn't terribly off base, either given the structure of the U.S. political system and legal system, or given the general realities of the American criminal justice system, to see this as a very different kind of issue in our context than it is in the context of the Latin American criminal justice system which forms a backdrop of the bulk of the people involved in the Inter-American Commission on Human Rights which has caused them to conceptualize law enforcement indifference in the face of warnings of private violence as an important category of human rights violation. In their countries, human rights violations have been in one place or another the ordinary and most common kind of law enforcement collusion in human rights violations. The realities of proving that kind of conspiracy for individual victims of these abuses has made a human rights rule that establishes a greater police duty to private individuals who have warned them of threats of private violence through official channels the most sensible way of addressing this problem.

The parade of horribles offered up by the police in the Castle Rock case before the U.S. Supreme Court notwithstanding, it is also not at all obvious that recognizing a state created statute could create a right to some kind of response for law enforcement on pain of civil liability for their inaction in cases where a judge had considered the threat and found it to be real would actually have been the burden claimed. Nobody in the Castle Rock v. Gonzales case was arguing that the police had a strict liability duty to prevent estranged husbands who are subject to restraining orders when they are warned; the argument of Gonzales was that they were mandated by a state law to at least try to enforce a restraining order when the facts that they needed to have were handed to them on a silver platter by the mother of the children rather than blowing it off. One of the main ideas behind the concept of a restraining order is to try to get the police to take a potential threat seriously and to make it easier for them to intervene before a situation gets out of hand. The U.S. Supreme Court didn't have to create a constitutional duty of law enforcement to protect citizens in general, in order to make it constitutional for the State of Colorado to pass a statute that imposed such a duty on police in its own state to do so. But, that isn't what the U.S. Supreme Court did and the political theory it adopted in its actual holding is now central to the nature of the relationship between the state and its citizens in a broad array of areas, and to the most sensible interpretation of future cases such as Heller, the case that recognized an individual constitutional right to armed self-defense under the Second Amendment that federal courts had refused to impose in the most than two centuries that preceded it.