The Criminal Lawyer

There seems to be a growing recognition that there’s a lot more law to deal with these days than there used to be. But when you say “more law,” what does your audience think you’re talking about? Are you addressing policy makers and the sociologists who influence their thought? If so, consider this:

Law is a quantitative variable. It increases and decreases, and one setting has more than another. It is possible to measure the quantity of law in many ways. A complaint to a legal official, for example, is more law than no complaint, whether it is a call to the police, a visit to a regulatory agency, or a lawsuit. Each is an increase in the quantity of law. So is the recognition of a complaint, whether this is simply an official record, an investigation, or a preliminary hearing of some kind. In criminal matters, an arrest is more law than no arrest, and so is a search or an interrogation. An indictment is more law than none, as is a prosecution, and a serious charge is more than a minor charge. Any initiation, invocation, or application of law increases its quantity, even when someone brings law against himself, as in a voluntary surrender, confession, or plea of guilty. Detention before trial is more law than release, a bail bond more than none, and a higher bail bond more than one that is lower. A trial or other hearing is itself an increase of law, and some outcomes are more law than others: A decision in behalf of the plaintiff is more law than a decision in behalf of the defendant, and conviction is more than acquittal. The more compensation awarded, the more law. And the same applies to the severity of punishment as defined in each setting: the greater a fine, the longer the prison term, the more pain, mutilation, humiliation, or deprivation inflicted, the more law….

And so on and so on, for another couple hundred pages, goes Donald Black’s “The Behavior of Law.” This is no minor piece of academic drivel — it is a seminal and highly influential book in the field of Sociology, hailed on its publication in 1976, required reading in our graduate course on Law and Society at U.Va. eleven years later, and with a new edition out just last year. Professor Black’s explanation of the law is now the basis of the school of Pure Sociology, which scholars use to explain pretty much any intense human interaction — ranging from the courtroom to artists and scientists, to the acts of terrorists and genocides.

It is no minor piece of drivel. It’s serious drivel. It screws up the way people think about law, making a very Babel of what should be basic, shared understanding. To the extent that sociologists affect public policy, confusion like this can only make things worse. And sociology is indeed important to law. It may or may not be a true -ology constrained by the scientific method, but pretty much all modern ideas of social improvement are deeply affected by it. Legislators may be motivated by re-election concerns, but sociological conclusions strongly inform what they see as the stance to take. Regulators are, if anything, much more influenced by sociological studies of what is or is not good for the public welfare. Sentencing commissions, juvenile justice, and diversion programs are almost entirely based on sociology.

It’s possible that we’re just nursing a grudge for having to endure a semester of it a gazillion years ago, but we doubt it. Pure Sociology isn’t itself a bad thing. It tries to explain why one criminal gets punished more severely than another for essentially the same act; why two groups of people are still fighting long after the initial conflict ended — and how third parties are likely to maneuver with respect to that conflict; why conflicts begin in the first place; why one becomes a predator while another becomes a peacemaker. Perfectly appropriate areas of human study. Furthermore, the factors that Pure Sociology takes into account are as commonsensical as they come: the strength or weakness of social ties, differences in status, the social structures within which the various actors exist, and the like. The general conclusions of Pure Sociology aren’t all that objectionable, either — that the fewer social ties between two people, the more likely government is to get involved, and the more severe its actions; that people tend to see people of high status as having gotten there through the exercise of free will, while people tend to see the most disadvantaged of us as victims of circumstances beyond their control; that the worst conflicts seem to happen between parties that, to an outside observer, appear to have more in common than otherwise.

But the core definitions are simply wrong. You do not get “more law” when someone is arrested as opposed to merely searched. You get more governmental intrusion. That is not the same thing as law. You do not get “more law” when the party bringing a case wins than when the defendant wins. You get more government authority to act against the defendant. That is not the same thing as law. In all the scenarios listed by Prof. Black, the amount of law is not changing. The things which the law permits to happen vary, not the amount of law itself. These and similar definitions are central to the school of Pure Sociology, from which all else is derived, and they are wrong.

This is not a minor quibble, harrumphing over a perfectly typical misappropriation of a word within the academic community. It is a failure to define some fundamental concepts, an understanding of which would be absolutely required before any of the higher explanations of human conflict can be attempted.

First of all, Law. Generally speaking, law is the (more…)

The other day, we said the short answer is that the killing of Osama bin Laden was lawful.  Some have asked for a bit more detail in the answer.  We can’t give the full answer, of course, but we can give a slightly longer one than we did.  A full answer is going to require more facts than we’ve been able to glean from the papers, and is going to have to come from the DoD and the State Department anyway.  They haven’t given a full legal analysis yet (and that’s fine, by the way), and the actual facts seem to change each time we read about what happened.  Fortunately, the law doesn’t change with the facts.  So though we can’t give a full answer, we can make a few assertions with a fair amount of confidence.

First, lawful military targets do not only include those who are in the middle of shooting guns at your soldiers.  Anyone who is an identified member of a hostile enemy is going to be a lawful military target.

Al Qaeda is a known hostile enemy, one which has been involved in combat against the United States for a long time now.  Any identified member of that hostile enemy would be a lawful military target.  It doesn’t matter whether that person was armed or not.  Let’s repeat that: it doesn’t matter whether he was armed or not.  It doesn’t matter whether he poses any immediate threat.  All that matters is that he was an identified member of a hostile enemy.

With uniformed services, this is easy.  If you see a uniformed enemy officer, you’re free to take him out.  The uniform identifies him as a lawful target.  He could be walking down the street, minding his own business — it doesn’t matter.

But with non-uniformed enemies, there has to be some reason to believe the guy walking down the street is a member of that hostile enemy.  There has to be a reasonable certainty that he’s one of them.  In other words, you’ve got a positive I.D.

If you’ve got someone who is an identified member of a hostile enemy — either by uniform or by positive I.D. — then a soldier is allowed to shoot them, even if they pose no particular threat at the moment.  The lawfulness comes not from what they’re doing, but from who they are.

The only real exception is when they are hors de combat — a term of art that essentially means “no longer in a position to fight.”  Examples include the wounded, POWs, and those who have surrendered.

The only variable in Osama bin Laden’s case is whether he was hors de combat at the time he was shot.  Unless that exception applies, he was a perfectly lawful target.  The orders to kill him were lawful, and those carrying out the kill mission were acting lawfully in following those orders.

We weren’t there, and neither were you, so it’s impossible to say whether bin Laden had been incapacitated or had surrendered prior to being shot.  The facts reported thus far is that this wasn’t the case.  He doesn’t seem to have been the type to surrender in the first place.  And even if he had wanted to, the burden is not on the soldiers to figure that out — he’d have to make it extremely clear.  Which can be difficult in the middle of a firefight.

So there’s no reason to believe he was hors de combat. Given that, and given that there was a reasonable certainty that he was a member of al Qaeda, a known hostile enemy, he was a lawful military target, and it was lawful for the SEALs to take him out.

And that’s really all there is to it.

It’s only been a few days since Osama bin Laden was killed in a U.S. military assault on his compound in Pakistan.  And in those few days, the internet has been buzzing with discussions, debates and hand-wringing over whether the U.S. acted lawfully.  We’ve been reading thoughts of people on every continent, regular folks with access to a computer, who may or may not even know what they’re talking about.  And all we have to say is this:

We’re glad to be living in a world where such hand-wringing is possible.  More than that — a world where it’s actually meaningful (rather than silly) to wonder whether a precise military action by the world’s single greatest military power, against its universally-acknowledged military enemy, comported with some higher and overriding law.  A world where such hand-wringing is done at great length by that same great power, prior to engaging in the military action to begin with.

Imagine that, just for a moment.  Has this ever before been the norm, in the entire history of mankind?  Because it sure is now.

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How did we get here?  How did the world evolve to a point where the Rule of Law is the rule, not the exception?  Where everyone pretty much expects that even the greatest military power is not above the law?

It’s been a long time coming.  International law has been developing for centuries.  But credit has to go to the  U.S. and to the U.N., both for living by the Rule of Law (most of the time) and spreading the ideal and the idea.  It matters that the world’s superpower acknowledges the law, and cares deeply whether its actions are lawful, no matter which party happens to hold the presidency at the moment.  It also matters that the world has an engine for forming and enforcing (somewhat) rules that are binding not only on those who would be bound, but also on the strongmen and thugs who would not.

Of course, we’re not all the way there yet.  There still are plenty of places where the Rule of Law doesn’t exist.  They suffer for it — not just atrocities and depredation, but failed economies, corrupt governments, and dearth of opportunity.  If there is one thing above all that separates the first world from the third world, it is the Rule of Law.  Especially in this globalized world, the places that succeed are those where contracts can be counted on, everyone has to play by the same rules, and the rules are actually enforced.  Once you’ve got that, you can kind of predict what’s going to happen with enough certainty to invest one’s time, labor or capital to actually do something.

And it’s easy to spot the countries without the Rule of Law.  For example:

Still, the world is on the right path.  Let’s hope that there really is some sort of “arrow of history” like the one Francis Fukuyama proposed back in ’92 (though he did subsequently back away from the idea).  We’re hardly Utopian in outlook — our own mother calls us “old doom and gloom” — but it’s not unrealistic to hope for at least a trend towards more and more Rule of Law in the world, with the result of more and more general safety, security and opportunity.

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But we’re getting off topic.

The point is, we’re glad to be living in a world that can be full of hand-wringers over whether the U.S. acted lawfully in taking out an apparently unarmed Osama bin Laden, without instead capturing him and putting him through a criminal process of some sort with due process, etc.

(And for those who really want to know whether it was lawful or not, the short answer is yes.  The medium answer is he was a lawful target of a lawfully authorized kill mission during a war in which both he and the U.S. soldiers were combatants.  From all that we’ve read, it was done by the book.)

We started yet another trial this week, and it’s looking like it will continue into the first week of April.  Not our longest trial ever, but fairly lengthy for a state case.  But at least it’ll be over before the trial of Raj Rajaratnam, which also began this week, and which is expected to last through the beginning of May.

But these are nothing compared to the trial of Charles Taylor, former head of Liberia.  This is the same guy who ran for election with the campaign slogan (not making this up): “He killed my ma / He killed my pa /But I will vote for him.”  Probably a thinly-veiled threat that those who didn’t vote for him would get the same treatment.

Taylor first came to prominence in 1980, when he took part in the coup led by Samuel Doe.  Whose government he soon ripped off in a massive embezzlement scheme.  He fled to the U.S., got picked up and thrown in prison, and made a daring prison escape before he could be extradited in 1985.  He high-tailed it to Libya and the protection of Muammar Gaddaffi, and went through some terrorist training camps.

With funding from Gaddaffi, he organized a rebellion against the Liberian government in 1989.  The civil war would rage for seven years, utterly destroying the country.  Slaughter, fear and lawlessness made Liberia the classic “failed state.”  There was no government, only destruction.  (A State Department official we knew at the time said it was no good trying to reach anyone in charge there.  ”The phone’s just going to ring and ring, because there’s probably bullets flying through the office and they’re hiding under their desks.”)  The word “horrifying” doesn’t begin to describe what was going on throughout the ’90s there.

In 1997, Liberians elected him president in the vain hopes that this would avoid any more civil war.  But within two years, it was raging again.

But none of this is what he got in trouble for.

Apparently, Liberia wasn’t exciting enough, so he got involved in the horrors over in Sierra Leone.   During his own civil war, Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone.  Because the government there was so corrupt, it had no real resources, and there was pretty much no economy.  So they couldn’t really fight back.  Still, they wound up having their own brutal civil war throughout the 90s.  A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Meanwhile, the Special Court for Sierra Leone managed to file an indictment against Charles Taylor for war crimes and crimes against humanity, based on what he did in Sierra Leone.

He was indicted in 2003.

His trial just ended today.

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Even if you take into account the fact that he hid out in Nigeria until finally being arraigned in 2006, and the fact that the trial proceedings themselves didn’t really begin until 2007, we’re still talking a four-year trial.  That’s a long time to hear a case.

And the trial isn’t really technically over, anyway.  Just the evidentiary part is over.  The judges are going to take the next several months before rendering their verdict.

This thing ain’t ever going to end.

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Whether he’s guilty or not — and we haven’t seen the actual (more…)

Now that Julian Assange has been arrested in the U.K., his fight for the moment is to prevent extradition to Sweden, which wants to arrest him for questioning about allegations of sexual misconduct.  But given the comparative laxity of any punitive measures Sweden might impose even in the worst case scenario, a more troubling concern is the possibility of extradition to the United States for criminal prosecution for espionage.

If that happens,  however, he might have a pretty good shot at winning.

The Espionage Act of 1917, 18 USC §§792-799, is what he’d have to deal with (there are reports that the DOJ is already preparing these charges).  Here are the parts that are most likely to apply:

§793(c) gets you up to 10 years in prison for receiving anything pertaining to U.S. national defense, if you did it while having “reason to believe” that it was illegally obtained, and that it would be used either to the injury of the U.S. or to the advantage of another country.

§793(e) gets you up to 10 years in prison if you’re in possession of such stuff, and you have “reason to believe” that it “could be used” either to the injury of the U.S. or to the advantage of another country, and you go ahead and disseminate it or cause it to be disseminated.

Well, wait, you say.  Those sound pretty much exactly like what Assange freely admits to having done.  A private in the U.S. Army apparently downloaded a whole bunch of confidential documents, and provided them to Wikileaks.  Assange ordered the documents to be released, publicized what he was doing, and publicized that it would likely injure the United States.  Forget all of Assange’s bluster about the harm being minimal.  His actions seem to hit all the statutory elements.  So how can he win?

As several have (more…)

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment.  (The same reason why we write this blog, actually.)  To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school classes.  So now we feel all obligated and stuff to keep it accurate and up to date.  At some point, we added a section on the subject of Lawfare.  Briefly put, Lawfare is the use of the law (yours or your opponent’s) as a tool of warfare, either to gain a military advantage, or to deny one to your adversary.  It’s too long to excerpt here, but you can read the section here, if you’re interested.

But if you’re really interested, an even better précis of Lawfare can be found in Gen. Mark Martins’ guest post this morning over at Lawfareblog.  His posts this week have been building up to this one, a great summary of the concept, with the depth of insight one would expect from the commander of the Rule of Law Field Force in Afghanistan.  Go read all of his posts, for sure, but this one is outstanding.

First, Gen. Martins sums up three competing definitions of the term.  ”Meaning A,” as he puts it, refers to the hijacking of Western sensibilities of justice and civil rights, by those who do not share such sensibilities, in order to undermine Western resistance.  ”Meaning B” is a wholly unrelated concept, an intellectual battle over the scope of national security law.  ”Meaning C” is a Western strategy that turns the cynical strategy of Meaning A on its head, an approach that applies the rule of law to all counterinsurgency tactics, thereby providing the legitimacy that is so important in a war of perceptions.

If he had stopped right there, this would have been a valuable enough contribution.  But he goes on to provide five clear observations about each of these three concepts, which makes it a must-read.  The first point is probably his best, that each definition contains a kind of hamartia or tragic flaw that could undermine it.  Meaning A cries “unfair,” which is sort of silly in the context of war, where ruses and propaganda are about as fair game as it gets, and without which few victories are ever achieved.  Meaning B, the contest of ideas alone, can bestow undeserved legitimacy and moral equivalence on the ideas of the enemy, which could lead to the very undermining of the principles one seeks to advance.  Meaning C, “by placing the law in service as a ‘tool’ of war, risks undermining the authority of law itself.”

Go over there and read the rest of it.  In the meantime, we need to go update our primer.

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UPDATE: Happy Thanksgiving!  Gen. Martins posted a followup this morning, “Lawfare: So Are We Waging It?” Written from Parwan, Afghanistan, it begins:

The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF).  But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

The post goes on to discuss the subject in more detail.  But we want to stop right there and shout out “he’s writing all this in between engagements in a goddamn war!”

The International Criminal Court came into being almost 8 years ago.  It has jurisdiction to prosecute genocide, crimes against humanity, war crimes, and criminal aggression.  Well, that is, it has jurisdiction to prosecute those crimes once they’ve been defined.  And to date, they haven’t yet come up with a definition for “crimes of aggression.”  Nor have they specified the conditions where the ICC could get involved in such crimes.

But maybe that’s about to change.  Reuters reports that ICC delegates today have been busily “seeking to agree [on] a definition of state aggression, and how ICC investigations into the crime … could be triggered.”  A rule is expected to be announced and adopted tomorrow.

The current draft appears to be a compromise that allows member countries to “opt out” by affirmatively stating that they don’t want the ICC to be able to investigate them for aggression.  The idea is that this will make it harder to opt out, by forcing countries to announce that they don’t want to play by the grown-up, civilized rules.  Any member country that doesn’t opt out, or its leaders, could otherwise get investigated.

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The ICC is a creature of treaty, so it only affects countries that (more…)

Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!

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Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at (more…)

Last year, for reasons we’re not entirely clear on, Hamas-led Palestinians started firing rockets and mortars at civilian populations in Israel. Israel put up with it for a while, but then after Christmas it finally responded with a bunch of air strikes on targets in the Hams-controlled Gaza region, and blocked shipping into the area.

As usual, there was a U.N. outcry against Israel’s actions, and a commission was formed. Last week, after several months of review, the commission came out with its report. Although it did say that Hamas shouldn’t have fired rockets at civilians, it came down hardest on Israel, concluding that Israel had committed major violations of international law, probably war crimes, and its actions did not count as self defense.

There have been the usual cries of unfairness all around, what one would expect in any such matter. The whole matter seems to be just par for the course, and we admit to not paying all that much attention to any of these goings-on.

But this morning, a piece in the WSJ by notable criminal law scholar Paul H. Robinson caught our eye. In his article, “Israel and the Trouble With International Law,” Mr. Robinson argues that, although the U.N.’s report might strike many as “a bit unsettling or even bizarre,” in nonetheless is probably correct, in terms of international law.

Mr. Robinson argues that the rules of international law forbid the kind of self defense that American criminal law would allow. Under international law, he says, if a gang of thugs is openly preparing to rob your store and kill your security guards, and is assembling in the parking lot across the street, and there are no police, you still cannot act in self defense until they actually start their attack. But under American criminal law you would be allowed to use such force as is “immediately necessary” to prevent the attack from happening, without waiting to be attacked first.

Similarly, he says, if a neighbor was letting thugs use his house, from which they regularly attacked your family, and there are no police, then international law would forbid you from using force against the thugs and the house they’re taking sanctuary in. But American criminal law would let you do it.

And as a third example, he says that international law only allows force against those thugs when they’re presently in the act of attacking your family, and not during the periods in between attacks, even though it’s an ongoing series.

So, he concludes, by going after the source and trying to prevent further acts of violence against its civilian population, Israel probably did violate international law here. The rules only let it use force to stop the individual attacks, and only while they’re actually happening.

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We admire Mr. Robinson very much, but he’s not precisely correct here. He focuses on Article 51, but that’s not the only source of law here. The law on pre-emptive self defense is a non-Charter use of force, but which is nonetheless permitted by customary international law.

Article 51 of the U.N. Charter says that nothing in the Charter is to be construed so as to impair the “inherent right” (meaning it pre-existed the U.N.) of nations to use self defense against armed attack.

“Armed attack” does seem pretty limiting. Not every act of aggression counts as an attack, after all. Merely threatening force doesn’t count. The enemy may in fact be involved in a use of force, and it may even be an illegal use of force, but it still might not be an armed attack.

So Robinson cites the Nicaragua case, where the Sandinistas in Nicaragua were unlawfully supplying arms and sanctuary to insurgents trying to topple El Salvador’s government. Even though this was an illegal use of force, El Salvador had no right under international law to use force itself in order to stop Nicaragua’s violations of its sovereignty.

But an armed attack can be taking place if the enemy is massing across the border. Like his example with the thugs across the street, who are just waiting for night to fall before they attack your store. If that massing of troops is just an exercise, well then you’re not allowed to attack them.

But if it truly is preliminary to an imminent attack, then by all means strike them. Read on to see why it’s okay to do so.

Remember, though, you need to immediately report to the Security Council that you are under armed attack. And you need to promptly report your response actions to the Security Council.

The main things to keep in mind are that your force must be necessary, and it must be proportional.

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The most famous case in international law, The Caroline (1906), deals with the hot-button issue of preemptive self defense. This one predates Article 51, and it is certainly part of customary international law.

The United States had a bunch of nasty battles with Canada during the War of 1812. There was a lot of bad blood, and the two countries remained hostile for many years thereafter. Unlike now, Canada was the major power, and the U.S. was the little guy. Nevertheless, the U.S. kept trying to take bits of Canada, and the border between Lake Erie and Lake Ontario was heavily militarized. Sound familiar?

The Canadians learned that the U.S. was planning a military incursion across the border into Canadian territory. Before the U.S. began its attack, however, the Canadians struck first.

The Canadians crossed the border first, grabbed the U.S. ship The Caroline, and killed everyone on board. Then they set the ship on fire. Then they launched it over Niagara Falls.

The U.S. Secretary of State at the time was Daniel Webster. He and his British counterpart Lord Ashburton began writing back and forth about what constituted proper self defense. It resulted in a letter from Webster saying:

The President sees with pleasure that your Lordship fully admits those great principles of public law, applicable to cases of this kind, which this government has expressed; and that on your part, as on ours, respect for the inviolable character of the territory of independent states is the most essential foundation of civilization. And while it is admitted on both sides that there are exceptions to this rule, he is gratified to find that your Lordship admits that such exceptions must come within the limitations stated and the terms used in a former communication from this department to the British plenipotentiary here. Undoubtedly it is just, that, while it is admitted that exceptions growing out of the great law of self-defense do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.’

The law arising from this case is that, for pre-emptive self defense to be lawful:

1) The necessity must be immediate;

2) The necessity must be overwhelming;

3) There must be no other choice;

4) There must be no time to deliberate; and

5) It should also be proportional. (This comes from an earlier letter. Here, killing everyone, burning the ship, and sending it over the falls was found not to have been proportional.)

The Caroline keeps coming up again and again whenever the question of anticipatory self-defense is proper. These five criteria are the ones that get cited by pretty much everyone.

The Nazis, for example, when they invaded Poland, went out of their way to make it look like Poland had started it, so as to justify their invasion. They even dressed up Polish prisoners in German uniforms, shot them and filmed it, and blamed it on Poland. They were trying to make the facts appear to fit the requirements of The Caroline. The Nuremburg tribunal, however, did not buy it.

In the Cuban Missile Crisis, the United States went out of its way to say its actions were not self-defense, but merely a quarantine of Cuba on the high seas to keep the missiles out. A blockade certainly is a kind of use of force, but it is less intrusive than other kinds. The United States proposed this theory in the U.N., and it was representatives from Ghana (who, unlike ours, had been well-educated in international law) who stood up and cited The Caroline case, asking “is this emergency instant, overwhelming, leaving no choice of means, and no moment for deliberation?”

When the Israelis bombed Iraq’s nuclear reactor in 1981 (because it could have been capable of making weapons-grade plutonium), that also led to lengthy discussions of whether the standards for preemptive self-defense attacks had been met. Of course, the act had already been done by then.

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So if one reads the U.N. report more closely, one finds that it goes out of its way to find Israel’s strikes to have been disproportionate to the threat, primarily by including the blockade of shipping. The reasoning goes that the blockade punished the entire population, and wasn’t necessary to self defense.

We’re not particular fans of Israel, but that simply doesn’t wash. Gaza doesn’t produce its own rockets and mortars. Hamas gets them from Iran, Syria or other sources. So a blockade to prevent the ongoing attackers seems perfectly proportionate and necessary here.

Going through the five factors, what do we have?

1) Was the necessity immediate? Certainly. Israel had been under ongoing attack for months, with no sign of it letting up.

2) Was the necessity overwhelming? Sure. Civilians were being targeted for strikes by military weapons, and sovereignty was at stake as well.

3) Was there no other choice? It sure looked like it. Negotiations and diplomacy seemed only to be encouraging further attacks, as they always seem to do in that part of the world.

4) Was there no time to deliberate? Hmm. On the one hand, the Israelis seem to have been deliberating for months already, but if that precludes them from eventually saying enough is enough, then such a rule would encourage less deliberation, not more. Their population was under attack, and there was reason to believe it was going to happen again immediately, so it seems justifiable to call this as being no time to deliberate.

5) Was the response proportionate? The blockade was, to the extent it was focused at preventing Hamas from making further attacks. The air strikes targeted Hamas command, control and munitions, using precision-guided weapons to minimize collateral damage. It sure seems to have been proportional within the meaning of the law. Although many non-Hamas civilians were killed or wounded by the strikes, that does not change the fact of their limited purpose and execution.

So yes, if one only has the U.N. Charter to go by, Israel would seem to have violated international law. But there’s more to international law than just the U.N. charter. And under customary international law, it looks like Israel’s use of force was a lawful act of pre-emptive self defense.

Over at the WSJ’s Law Blog, Ashby Jones has posted an interesting piece called “Is Law an ‘Elitist’ Profession? Discuss.” Ashby saw an article on “The Lawyer,” a British website, reporting that there is little social mobility of lower classes into the legal profession. And he wonders if we have a similar situation in the U.S.

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Obviously, the issues are different in the U.K., where they actually have defined socio-economic classes. People born into the working class tend to stay there. There is a cultural basis for this caste system, which has been the way of things for centuries.

This is further reinforced by the educational system. Children are tested young, and are routed into schools based on their demonstrated aptitude. At age 11, 90% of students have wound up in noncompetitive “comprehensive” schools. The remaining few are admitted to selective schools that accept those whose scores are in the top tenth (or sometimes the top quarter).

The better jobs — not just doctors and lawyers, but also military officers and government officials — are mostly filled by people who got into the selective schools at age 11, and who then went on to get their degree.

Back in January, Prime Minister Brown decided that this has to stop. More people from comprehensive schools need to be represented in the professions and the military. So he appointed former health secretary Alan Milburn as “Social Mobility Czar,” chairing a commission tasked with figuring out how to get working-class students into these higher-class careers.

Milburn’s committee has now produced a white paper (outlined here), concluding that the problem is not so much that schools are selecting the students, but that wealthy parents get to select their schools. His solution is the equivalent of school vouchers — if a community’s schools tend to underperform, then let the parents opt to send their kids to better-performing schools, where they’ll at least have a fair shot of demonstrating their ability.

That sounds like a decent step to us. We’d prefer a system that opens doors, rather than closing them, and the U.K. has a long way to go in that direction. But it’s a good step.

In the meantime, the practice of law in England is likely to continue to be limited to graduates of the better prep schools, whose parents are more likely to have had higher-level occupations, and who share similar backgrounds. Lower-class students are going to continue to have few opportunities for joining their ranks.

And for those who do get past all the hurdles, and get their law degree, prospective barristers still have to get into one of the Inns of Court, get accepted into a chambers, and live on little income for at least the first year. It’s not as if one can just hang out one’s shingle — one does have to break into the club.

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But is that what happens in America? Certainly not. Yes, there are people who have advantages of birth and wealth, who get into schools they might not have otherwise. And there are some kids whose schools are so bad, whose communities are so anti-achievement, whose parents are so uninvolved, that they may never get the chances they ought to have had. But for the most part, the doors of opportunity are always open. When doors are shut, it’s not because the system closed them, but because the individual chose to.

Lawyers in the U.S. come from every walk of life. Some come from privileged backgrounds, others come from (what passes for) poverty. Their parents are just as likely to have been blue-collar as to have been white-collar. A kid can screw up all the way through high school, go to an okay college for undergrad, and get good enough grades to go to a law school. People can go to the finest law schools in the country after spending years pursuing an entirely different career. America truly is the land of second chances. One’s background is not a barrier to entry, here.

Neither is money a barrier to entry. Scholarships abound. Student loans are everywhere. If someone wants to go to law school, the money is there.

Graduating law school is more a matter of diligence than intelligence. A hard-working student of average intelligence is probably going to do better than a bright kid who doesn’t put in the same amount of effort. Ditto for passing the bar. In fact, once you’re in law school, it’s strictly up to you whether you become a lawyer or not.

In America, practically anyone can become a lawyer if they so desire. Put in the time, do the work, and the doors are open.

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Still, there is plenty of elitism in the American legal profession. Some of it is good, and some of it is bad.

The good elitism is that we are as close to a true meritocracy as one can get. You want to get into a top law school? Then earn the best grades. You want to get a judicial clerkship? Then be one of the best law students. You want a high-paying job with a big firm? Then bust your ass and prove yourself. You want the best clients? Then do the best work, and word will get around. No client or employer cares who you are or where you come from; they only care what you’ve accomplished and what you can do.

Frankly, we think the law could use a little more of this “good” elitism. It is, perhaps, too easy to become a lawyer in America. Law schools are abundant — every university wants one, because they are cash cows. Whoppingly disproportionate student-faculty ratios mean lots of tuition and little overhead. If a student is willing to consider a school that’s not exactly top-tier, there is a law school out there eager to accept him.

And passing the bar? That bar is set far too low, for our liking. One doesn’t need to demonstrate any reliable mastery of the subjects, but only a passing familiarity with them. A six-week prep course is all most people need to get a passing grade the first time out. And once a young lawyer has squeaked by with, essentially, a D on the exam, he never again has to take another exam to prove his fitness to practice law. The bar exam is not a fitness test, and never has been. All it has ever been is a mild hazing exercise that we all had to go through, and by gum so are these whippersnappers today. Only as an afterthought does it weed out those few who cannot even manage a passing grade. We’d prefer to have the bar exam require demonstrated competence in one’s area of practice, certify lawyers to practice in that area, and require re-certification every five years.

That’s the “good” elitism. Is there “bad” elitism in our profession? You bet.

Some of it is a holdover from the bad old days when we didn’t let in ethnic or religious minorities, people of insufficient family background, or others who just didn’t fit in. Some of this was outright prejudice.

Some of this, however, was a legitimate belief that a member of a profession must not be in a position where he is working for the fees. A professional’s first and only duty is to the client, so the second he start doing it for the money he has crossed the line — his own interests are now competing with those of his client, and that is beyond wrong.

That’s as true today as it ever was. But in the old days, the principle was applied too ham-fistedly. Instead of instituting ethical rules to ensure that the law remained a profession, and didn’t devolve into caveat emptor shopkeeping, we instituted rules and practices that said “we don’t want anyone who has to actually work for a living.”

This attitude underlay all kinds of barriers to entry. The most significant were the ABA accreditation rules for law schools, which made it harder for evening or part-time students to get their degree, and making it harder for low-income schools to gain or keep their accreditation. Students who had to work their way through school, and schools that catered to working-class and lower-middle-class students, had an uneven playing field. The rules were tougher for them than for the upper-class kids.

Those ABA accreditation standards, by the way, are still in effect. They may have lost their original discriminatory purpose, but that doesn’t mean they aren’t still having an effect on entry into the practice of law. Evening and part-time students aren’t allowed to take enough credits to graduate in three years like their full-time counterparts, and are required to spend more years in school, and their schools have to jump through hoops to maintain the programs. The schools themselves have to maintain expensive facilities, the most expensive of which is an up-to-date law library. All those pocket parts are expensive as hell. (What, in this day of electronic research you thought they could dispense with pocket parts and replacement volumes? Surely you jest.)

The legal profession protects itself. We are the biggest and most powerful cartel you can imagine. We’re the politicians. We’re the judges. We make the laws. We enforce the laws. We control entry into our profession. We regulate ourselves. Nobody else regulates us, makes rules for us, or acts as a watchdog. It’s all us. So these things aren’t likely to change any time soon.

And yet we’ve come a long way. We have a ways to go, obviously, but nobody can seriously claim that the legal profession is closed to people of lower socioeconomic class. Nobody can seriously claim that the legal profession is closed to minorities, or women, or people of a given religion. The door may not be open as widely as it could be, but it’s still open enough to admit almost anybody who wants in.

Although the nation of Sierra Leone has had an extradition treaty with the United States in effect since 1935, the African country has never complied with a single request for extradition. Until yesterday, that is.

Its government never complied with such requests, one might argue, because there really was no government to speak of. The country descended into failed-statehood shortly after becoming independent in 1961, with an almost totally non-functioning government. It was one of those unfortunate countries where, if you had to call someone in charge, nobody was going to pick up (embassy types would joke that it was because the officials were hiding under their desks from all the bullets flying around). During Liberia’s horrifying civil war in the 1990s, its warlord Charles Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone. The corrupt government, which had no real resources due to a resultingly nonexistent economy, couldn’t do much to fight back. A brutal civil war ensued that raged throughout the 90s. A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Following the successful UN intervention, Sierra Leone has started to adopt the rule of law. Leaders of both sides of the war were subjected to UN war crimes tribunals. Democratic elections were held in 2007, and when no presidential candidate won a majority, rather than devolve into violence, the country simply held a runoff election. Important laws protecting public order have since been passed, and enforced.

So yesterday’s extradition is an important step in Sierra Leone’s process of joining the successful nations of the world, by complying with its treaty obligations under international law.

The case began in July of last year, when a cargo plane made an emergency landing at Lungui. The plane was found to contain military weapons and ammunition, as well as more than 600 kilos of cocaine.

Sierra Leone charged 15 people with importing cocaine, pursuant to the National Drug Ace of 2008, and related charges. The new criminal justice procedures were followed, resulting in a trial that ended on Tuesday. After the lengthy trial, Justice Mark Brown sentenced most of the defendants to 5-year jail terms and fines of $1 million.

Three of the defendants, Geraldo Quintana-Perez, Harvey Steven Perez and Alex Romero, were then immediately handed over to FBI agents at the Lungui airport, pursuant to the extradition treaty. All three were wanted in the United States on separate drug-related charges.

Quintana-Perez and Perez are to be arraigned today in the Southern District of New York. The SDNY’s acting U.S Attorney, Lev Dassin, remarked in a press release that “this is the first transfer of defendants from Sierra Leone. We hope that the transfer of these defendants to American custody marks the beginning of a strong partnership between the United States and Sierra Leone in combating the international drug trade, which poses a serious threat to both countries.” DEA acting Administrator Michele Leonhart added that “history is made today.”

The Minister of Information and Communication for Sierra Leone, Ibrahim ben Kargbo, stated that the prison sentences handed down by the Sierra Leone court will be respected by the United States, and that the jail terms for these three defendants will be served in U.S. prisons.

This truly is an important step in Sierra Leone’s journey towards modern statehood, with its government being beholden not only to its own laws, but also to its obligations under international law. The rule of law is perhaps the single most important requirement for a country to succeed, for its economy to prosper, and for its citizens to be protected. Without the certainty that the government will abide by the rules, that agreements will be enforced, and that rights will be protected, a country cannot thrive. Some other countries would do well to watch Sierra Leone’s rapid progress.

The DOJ got an indictment this week against a Hitachi executive, in the government’s ongoing prosecution of alleged price-fixing in the LCD monitor industry.

We first blogged on this back on November 13th, when Sharp, LG Display and Chunghwa all pled guilty to price fixing, agreeing to pay $585 million in fines. Since then, Chungwha executives also pled guilty during February.

After the Chungwha executive pleas, Hitachi itself agreed in March to plead guilty and pay $31 million in fines.

Breaking from the pattern, however, rather than a Hitachi executive subsequently pleading guilty, the feds went ahead and indicted him.

According to a DOJ press release, Tuesday’s indictment charges a Japanese national, Sakae Someya, who was an executive at Hitachi Displays Ltd. Mr. Someya is accused of taking part in a larger global conspiracy to fix the prices of LCD panels sold to Dell.

Mr. Someya is accused of agreeing to charge set prices for the screens, sharing sales information to ensure everyone was complying with the agreed prices, and trying to keep the arrangement secret. These are Sherman Act charges, with a max of 10 years in prison plus a max fine of the greater of $1 million, double the gain, or double the loss to victims.

We wonder how much of the allegedly criminal conduct is simply normal business practice in Japanese culture. After all, the keiretsu distribution system used by Japanese industry looks very much like price fixing to Western eyes.

It certainly looks to us as though the DOJ’s Antitrust Division is busting through decades of resistance to offshore enforcement of U.S. antitrust rules. Whether it is proper to impose U.S. laws on a very foreign culture… that’s another question entirely. What do you think?

For 16 years, German police have been hunting a fiendish serial killer. Every time they have an unsolved crime, the DNA of an unknown woman has been found at the scene. This phantom killer baffled police with her ability to commit totally unrelated murders without any evidence (apart from traces of her DNA) tying them together.

And when we say “unrelated,” we mean it. The DNA was found on documents at an arson scene, a cop killing, and dozens of other kinds of murders unconnected by geography, motive, means or victim.

Dubbing her “the phantom of Heilbronn,” the cops focused at least 40 investigations in Germany and Austria on identifying this “woman without a face.” When her DNA was found at the scene of a murdered policewoman, a 300,000 (about $375,000) reward was offered for information leading to her arrest.

It turns out, however, that all those unrelated crime scenes DID have something in common, apart from the mystery woman’s DNA. But in all those 16 years, nobody put two and two together.

What did they have in common? The DNA kits used by the cops themselves.

Yup, the swabs used to collect the DNA samples were contaminated. A female worker at the manufacturer apparently wasn’t working under completely sterile conditions, and her DNA was getting on the Q-Tips. As usual, the evidence that made no sense was wrong, and the simplest explanation was the right one.

So the police spent 16 years thinking that her DNA was the DNA of the killer. And instead of focusing on evidence that would have solved these crimes, they followed a wild goose chase that has left nothing but injustice. DNA is the wonder evidence of our time, so when it pointed the way the cops jumped at that conclusion.

Yet another reason why DNA evidence isn’t necessarily as damning as people might think.

Starting in November, we’ve predicted two alternative reactions that Sudan’s Omar al-Bashir could have if the ICC issued an arrest warrant. On the one hand, he could start acting all cooperative, and thereby appease a U.N. Security Council that wants any excuse to avoid ICC action here. On the other hand, Bashir could just terminate international aid to Darfur, kick out peacekeepers and aid workers, and then blame the resulting death and suffering on the West while he consolidates his local power.

It looks now like Bashir has gone with door number two. The BBC reports today that Bashir now says “he wants all international aid groups out of the country.” Speaking to a rally, Bashir stated that “within a year, we don’t want to see any foreign aid group dealing with a Sudanese citizen. If they want to bring relief, let them drop it at airports or seaports. Let [Sudan’s] national organizations deal with our citizens.”

Within the past week or so, Bashir has already expelled 13 large international organizations, claiming that they were spying for the ICC.

According to the Beeb, “the United Nations said the expulsions would leave millions at risk of a humanitarian crisis.”

So okay, lesson learned (re-learned, of course). Dictators don’t choose to go gently into that sweet good night of punishment at the hands of modern procedural justice. Go figure.

So then fine, but now what? Will the Security Council take this opportunity to announce a deferral of any prosecution, under Article 16 of the Rome Statute, in the stated interests of forestalling any humanitarian crisis? They could choose to be seen as pragmatic and wise, opting to sacrifice the individual prosecution of the dictator in order to save the lives of tens or hundreds of thousands. And of course, those P5 nations opposed to ICC action (China and Russia because Sudan is an important partner, and the U.S. because it doesn’t want the precedent of prosecuting a head of state) would have the out they’re looking for, all while appearing humane and acting for the best.

Or will they allow the ICC’s arrest warrant to continue, watch the foreign aid be expelled, watch Sudan’s warlord take control of any aid naively dropped off at the border, and stand on principle to bring the rule of law to failed states?

We’re going to go with the cynical prediction this time. Just a hunch.

The ICC has, at long last, issued a warrant for Sudan’s military dictator, Omar al-Bashir, on charges of war crimes and crimes against humanity. Although the anticipated charge of genocide was left out, it remains a historical moment, as this is the first time the ICC has charged the current leader of a state, albeit a failed state.

To recap, in November, we noted that the International Criminal Court’s chief prosecutor was calling for al-Bashir to be charged personally with multiple counts of genocide, crimes against humanity and war crimes. Al-Bashir had seized power of the Sudan in 1989, and ruled ever since as the military dictator of one of Africa’s most ruthless regimes. In the Darfur region of western Sudan, a war had raged for about five years, with government troops and proxy fighters committing massive bloodshed against rebel groups as well as civilians and entire villages seen to be sympathetic to the rebels. Despite enormous outcry from the rest of the world, and pressure from the U.N. and powerful nations, al-Bashir had shown no inclination to temper or cease the bloodshed. On the contrary, it appeared that his regime had only ramped up the violence in a war that is estimated to have killed hundreds of thousands of human beings through murder, combat, starvation and disease. But after Moreno-Ocampo started calling for ICC charges to be brought against him, al-Bashir called for a unilateral cease-fire in an attempt to get the U.N. Security Council to defer any legal action.

Later, we reported that Moreno-Ocampo warned the Security Council that any criminal charges could cause al-Bashir to launch a violent reprisal against peacekeepers and civilians, and so the U.N. would need to be prepared to take action. Meanwhile, the African Union and the Arab League asked the Security Council to defer the prosecution, on the curious grounds that prosecuting war crimes and genocide were not helpful to the peace process.

It was beginning to look like the Security Council was going to go along with the crowd, and defer any prosecution indefinitely — even though doing so would have created a terrible precedent of appeasement and keeping out of situations like Darfur. So it was an act of unexpected conviction for the ICC to be permitted to go ahead and issue its warrant for al-Bashir.

The warrant doesn’t charge everything that Moreno-Ocampo had called for, notably omitting the charge of genocide. Still, it does charge the sitting head of state with “intentionally directing attacks against an important part of the civilian population of Darfur, Sudan, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians and pillaging their property.”

Issuing a warrant is one thing. Executing said warrant, however, is an entirely different matter. When will the ICC get its chance to arrest al-Bashir? Moreno-Ocampo stated “as soon as al-Bashir flies outside Sudan, he could be arrested.” The odds of al-Bashir doing any such thing are vanishingly small.

So significant odds were overcome, courage was demonstrated, and a significant new precedent has been set in International Criminal Law. But practically speaking, there is little chance that anything will come of it. 300,000 are still dead, countless injured and suffering, and 2,700,000 refugees (according to the U.N.’s Darfur numbers), without any international action to punish those who committed the crimes.

It’s not over yet…