Law and Order

Responding to Global Anxiety

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The global climate is shifting, resource distribution (both actual and imagined) is becoming a source of anxiety, and this anxiety is driving people from their homes, pushing them across borders, making them strangers in strange lands, and aggravating the entitlement of native populations. Ethnic demographics are shifting, birth rates are fluctuating in attention-demanding ways. Meanwhile digital communication has turned the entire world into a single community—a single village of unimaginable size and complexity.

How can we face a changing world in ways that won’t spark fearful, desperate outbursts? How do we either slow the changes, or identify the most vulnerable and ease their uncomfortable transition to a new world?

We’ll need to ease fear, present options and alternatives, calm troubled and terrified souls, guide the misguided, and hold up a lantern for those who are losing—or are about to lose—their way.

We have entered a difficult chapter in human history; All major transitions are difficult. But we believe that if we can make it through the rocky shifts that lie ahead, an golden age is waiting. We also believe that those who are able to see the path, and those who possess helpful knowledge, ability, or influence, have a responsibility to protect and prepare those who lack these things. We will move through this chapter together, whether we choose to or not. Let’s bring our best selves, apply our strengths, whatever they may be, and light the way.

Why the time is right for universal jurisdiction

by Inder Comar

In hindsight, it is almost too extraordinary: the leader of a Western-friendly government responsible for the deaths thousands, and the torture of tens of thousands, arrested and brought to account for his crimes before a court and a judge. 

But this is exactly what happened in 1998, when Judge Baltasar Garzon, a Spanish magistrate, issued an arrest warrant for the former dictator of Chile, Augusto Pinochet, while Pinochet was in the United Kingdom seeking medical treatment.

What happened next was a series of hearings that became known as The Pinochet Case, and which ended with a stunning victory for human rights: Britain's House of Lords deciding in 1999 that the arrest of Pinochet could proceed on the basis that his alleged international crimes violated human rights norms.

Pinochet received a reprieve from then British Home Secretary Jack Straw, who decided that Pinochet was too ill to stand trial, and permitted Pinochet to leave and go back to Chile. 

But the moment could not be undone: an authoritarian leader who had committed terrible crimes was forced to account for them -- somewhere.

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Fast-forward two years to the events of 9/11.

Governments around the world, including the American government, have been open and earnest in using the excuse of terrorism to tear down an international human rights mandate that was growing of its own accord, and which had produced an unthinkable amount of accountability over a former head of state -- a head of state who had been sponsored and defended by powerful Western governments.

The time is right to revive the concept of "universal jurisdiction" -- the idea that a person, whatever their nationality, can be called to account before the court of any civilized country for grave international crimes.

The Romans had an expression for those who had committed terrible offenses: hostis humani generis, or "enemies of civilization." Modern law talks of pirates the same way, and most countries (including the U.S.) permit a type of universal jurisdiction over those who commit piracy.

But it is up to today's lawyers and judges to extend this concept beyond pirates -- to torturers, illegal aggressors, and war criminals, wherever they may be located.

Impunity over international crimes must be abolished if we are ever to live in a civilized, peaceful world. A world where every leader, of every nation, remains afraid of having to defend their international actions with a lawyer, before a judge.

If The Pinochet Case seems buried in the past, there is a reason for that. The powerful want the world to forget that not too long ago, a brave judge, empowered by brave victims, found a legal doctrine that was compelling enough to force courts in the Western world to hold a once-favored dictator to account for his crimes.

It opened the imagination to a world in which law could produce accountability over international crimes -- and where law could theoretically prevent such crimes from taking place in the future. Every day people bore witness to a court investigating the conduct of a Western-backed dictator. And there was a real possibility of that dictator going to jail. 

We should not forget The Pinochet Case, or the idea of universal jurisdiction. Lawyers and judges can act as agents of profound social change.

Think of the way the world would change if a brave set of victims, lawyers and judges opened investigations into drone warfare, the Iraq War, or the destruction of Yemen.

Think of the way the world would change if those victims, lawyers and judges could show how law could act as a civilizing, pacifying force -- not simply a tool to be held against the weak, but a positive force for good that could hold and sustain civilization itself.

Judge Baltasar Garzon was removed from his judgeship in 2010, and today, he acts as a legal advisor to Julian Assange. Pinochet, upon his return to Chile, was eventually stripped of his immunity and charged with a variety of crimes. Pinochet died soon after his indictments, and before he could feel the scrutiny that comes from an honest, civilizing legalism. 

But it is not too late for others. It is not too late for law to command the powerful, wherever they may be, instead of the powerful commanding the law.

Five things the U.S. must do to restore the rule of law

by Inder Comar

The rule of law is in serious jeopardy in the United States.

The Executive branch is unconstrained, engaging in foreign wars without oversight even while it dismantles the regulatory and administrative state that protects citizens from abuses of power. 

The Legislative Branch has been hopelessly bought-and-sold by monied interests.

And the Judicial Branch refuses to intervene, and is actively closing the doors to any accountability over other elected officials.

Some scholars like Professor Ryan Alford even argue that the U.S. is no longer a rule of law state, a government that is run by a dictator who is elected every four years.

If this is true, then the U.S. is effectively a rogue nation. 

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Here are five things the U.S. must do in order to restore the rule of law:

(1) End all undeclared wars and military actions, and revoke the 9/11 authorization. Unending wars act as a systemic threat to democratic government. War increases the powers of the presidency and acts as an excuse to increase presidential powers. Money disappears through appropriations for military expenditure, or just through corruption. War destroys civil society by producing a culture that glorifies the military. War and democracy cannot coexist. 

James Madison, one of the chief authors of the U.S. Constitution, observed the very same

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people . . . No nation could preserve its freedom in the midst of continual warfare.

The 9/11 Authorization to Use Military Force (AUMF), passed immediately after the 9/11 attacks, has morphed into a blank check on an unending, perpetual, worldwide war.

As of May 2016, the AUMF was cited at least 37 times to support or sustain military action in at least 13 different countries, by both President George W. Bush and President Barack Obama.

And President Donald Trump has indicated his broad support for maintaining the 9/11 AUMF.

But enough is enough. The AUMF should be terminated, immediately.

Al Qaida has been destroyed and Bin Laden is dead.

There very well may be new national security threats that require a military response. If so, Congress can pass a new authorization tailored to those threats.

(2) Join the International Criminal Court. When you think about it, it is a remarkable thing: we live in a world where there is an independent, international, permanent tribunal whose primary purpose is to prosecute international crimes.

The U.S. was initially committed to the International Criminal Court (ICC). President Clinton signed the Rome Statute, but President George W. Bush famously "unsigned" the treaty, and the Senate was never asked to ratify it.

The ICC is in its infancy. It needs help and support. It is admittedly quite wobbly; but the first airplanes were also quite wobbly. Like any technology, the ICC needs investment and refinement. American support for the ICC would be a game changer, and would strengthen the international rule of law in ways that would herald a new era of international accountability for torturers, war criminals, and illegal aggressors.

(3) Investigate and prosecute U.S. officials who committed grave violations of international law. The rule of law is meaningless if it stops at the door step of the powerful. And since 9/11, U.S. leaders have committed terrible international crimes. Torture, unlawful surveillance, wars of aggression, crimes against humanity and war crimes have been openly committed by U.S. government leaders.

Restoring the rule of law requires an investigation into these crimes, and ultimately, prosecution over these crimes.

This will be a painful social process. But Americans have no choice but to expel these poisons that infect its politics, its society, its culture, and its government. When a person gets sick, the immune system does terrible things to fight off the infection. Fever and pain are the hallmark of an immune system that is doing its job. But when the process is over and the infection is gone, the body is restored and is once again healthy.

The American judicial system, including its prosecutorial agencies, attorneys, social activists and even brave members of the political class, are the anti bodies that we need to restore democratic governance. We absolutely need to end impunity of high ranking officials, whatever their rank and title, if we wish to live in a truly free and democratic society. 

(4) Promote and sustain an independent judiciary. It is a terrible thing that court-watchers can determine the outcome of a major case before the U.S. Supreme Court simply by looking at its composition. 

All sense of independent, impartial review has been jettisoned in favor of nakedly political judicial appointees. 

Justices across the political system should find no controversy in protecting and defending civil rights, providing access to justice to vulnerable groups, and acting as a mechanism of last resort for fair and impartial decision making. 

Judges and justices themselves must have the integrity and vision to understand that an independent judiciary is the last defense of a dying democracy. They must reject attempts by either the President or Congress to politicize the judiciary.

(5) End the influence of money in politics. Most pundits of the chattering classes glorify in the process of holding of an election as the end-all and be-all of democracy.

But take a look at any dictatorship in the world today, and there was almost certainly an election that was rigged to manufacture the intended outcome.

Elections are a necessary but not sufficient condition of democracy.

And voting is nothing more than kabuki theater when the results are manufactured or preordained.  

In the U.S., money has infected the electoral process to such a degree that outcomes are effectively tied to the degree of wealth that supports any given candidate. Elected officials take positions that please their wealthy donors, and not ones that reflect the true will of those who elected them to serve. 

For elections to be meaningful, they must express the will of an educated citizenry. Public funding of elections and limits on campaign finance expenditure are critically needed in the U.S. to restore legitimacy to the election process. Elections must free, fair, and open to every citizen. 

These are five, concrete actions that the U.S. must undertake to restore the rule of law. 

Word of the Day: Misprision

There’s a word that’s been showing up in news cycles and current events a lot lately, and it’s a seldom-used, often misunderstood legal term that seems to be having its day in the sun: Misprision.

To be guilty of misprision, a person will hold knowledge of a federal crime and will fail to report that knowledge to civil authorities or share it in a court of law. The law applies in countries (such as England and the U.S.) and legal landscapes in which citizens have a duty to report crimes like acts of treason or felonies.

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Since it’s a technically a crime of NOT doing something, rather than a crime of deliberate and visible action, this term has been subject to scrutiny and a wide range of interpretations. In order to build a credible case, an accuser must first make the claim that the accused did, in fact, hold the knowledge of the crime in his or her head, and then make the claim that the person actively failed to disclose it. And of course, the contents of a person’s head can be difficult to expose and present as evidence.

For example, an attempt to prevent a witness from giving evidence might be placed under the definition of misprision. But first, the prosecution will have to prove that the person pressuring the witness had knowledge of the original crime.

That being the case, we can present a criminal act (like treason or murder) in two separate contexts: the act itself, or misprision of the act. The difference between treason and misprision of treason lies in the difference between commission (the doing) and omission (the failure to speak of the act when required to do so).

Is “Misprision” the same thing as a cover-up?

On the surface, it looks the catch-all slang term “cover-up” can be substituted for the formal legal term, but this is not exactly the case. A cover-up can include misrepresentation, but not all forms of misrepresentation are part of an active attempt to hide evidence of a crime.

Can misprision be overlaid with obstruction of justice, a clear felony?

As this informative Vox essay explains, obstruction of justice may be a felony offence, but the nature of the term can be hard to define and the crime itself can consequently be difficult to prove. Of course, this doesn’t mean that legal experts should just give up. There’s no need to throw up our hands and concede that the concept of justice is relative and semantic flexibility can be used to bend the system to the will of the interpreter. It simply means that unraveling the definition of a crime and then aligning that definition with a series of real-world actions can present a philosophical challenge, one from which we should not back down.